Tang Mi Lan v. Director of Immigration

HCAL000050/1999

HCAL50/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL ADMINISTRATIVE LAW LIST NO. 50 OF 1999

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Coram : Hon Mr Justice Chung in Court

Date of Hearing : 29 July 1999

Date of Decision : 29 July 1999

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D E C I S I O N

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1. This is an application for leave to apply for judicial review against -

(a) the decision of the Deputy Director of Immigration dated 18th December 1997 to make a removal order against the Applicant and;

(b) the findings made by the Immigration Tribunal that the Applicant did not enjoy the right of abode in the HKSAR, and that the Applicant's appeal against the said removal order be dismissed.

2. In coming to my decision in this application, I bear in mind that this is only the hearing for application for leave to apply for judicial review, and not an application for judicial review. The burden on the Applicant is therefore much lower at this stage.

3. This matter first came before Yeung J on 15th April 1999. His Lordship considered that the proper procedure had not been followed and the application was dismissed without prejudice to the Applicant to make another application for leave to apply for judicial review.

4. The Respondent appeared before the Court at the hearing on 15th April 1999. The Respondent also appears before the Court on notice served by the Applicant in today's hearing.

5. The "Grounds on which relief is sought" filed by the Applicant ("the Grounds") do not rely on any procedural irregularity or other unlawfulness. In essence, the complaint set out therein is that the findings of the Immigration Tribunal were improperly made by reason -

(a) of the Wednesbury principle; and

(b) a wrong test having been applied by the Tribunal.

6. The background giving rise to the removal order and the Immigration Tribunal hearing is that a baby girl named Tang Mi Lan was born in Hong Kong on 28th September 1954. According to her Hong Kong birth certificate, her father was Tang Kwok Kuen ("TKK") and her mother was Madam Lau Kit Yu. It appears that there is no dispute that the Tang family left Hong Kong for Mainland China in the late 1950's. In September 1987, the Applicant claimed to the Hong Kong authorities that she is Tang Mi Lan. In May 1988, she was allowed to stay in Hong Kong on the strength of such claim. In June 1990, another lady, holding the original birth certificate, made the same claim to the Hong Kong authorities. After investigation was conducted by the Hong Kong authorities, the Immigration Department concluded that the Applicant was not Tang Mi Lan, but is a person named Lo Yee Ping, also known as Lo Yi Ping, also known as Lo Oi Ping. For that reason, the Immigration Department made a removal order against her in December 1997. To put it shortly, the Immigration Tribunal dismissed her appeal essentially for the same reason.

7. Paragraph 21 of the Grounds complains that the Tribunal wrongly adopted the criteria that whoever of the two ladies could provide sufficient link with TKK in and after 1958 would be the rightful holder of the birth certificate.

8. Paragraph 22 of the Grounds complains that the Tribunal was acting unreasonably under the Wednesbury principle for doing so, and for failing to take into two matters set out in sub-paragraph (5) at page 51 of the Tribunal's findings.

9. Paragraph 23 of the Grounds complains that the Tribunal has acted unfairly in -

(a) rejecting the Applicant's evidence that her father had settled in Ng Wah County because there was no documentary evidence and "everything was just hearsay"; and

(b) accepting the other lady's evidence when she also had no documentary evidence and was also relying on hearsay evidence.

The two matters set out in sub-paragraph (5) of page 51 of the Tribunal's findings were also referred to in this paragraph.

10. At the end, in applying the Wednesbury principle to the present application, the question to be asked by this Court is: Was the approach adopted by the Immigration Tribunal in assessing the credibilities of the Applicant and that of the other lady so unreasonable that no reasonable tribunal, properly directed, could have adopted such an approach.

11. As regards the complaint raised in paragraph 21 of the Grounds, I consider the Tribunal assumed that in the normal course of events, it can be assumed that a child would stay together with its natural parents (or at least with its natural father). Thus the person who can show a closer connection to TKK should be the rightful holder of the birth certificate.

12. Mr Ng, for the Applicant expanded on and clarified the complaint set out in paragraph 21 of the Grounds during today's hearing. He said that the Tribunal stated "Whoever could provide sufficient link with this TKK (the father), she would be the rightful holder of the certificate (i.e. the birth certificate)". Thus the Tribunal regarded that criterion as the only criterion.

13. I do not agree. First, the Tribunal has stated in the preceding sentence that that matter "would provide the material link". Thus it regarded the matter as an important factor. Secondly, in the some 34 pages of the Tribunal's findings that followed the passage complained of in paragraph 21 of the Grounds, the Tribunal has clearly undertaken a detailed and careful exercise of assessing the witnesses' credibility. It is obvious that the Tribunal did not regard the passage complained of as the only deciding factor. Lastly, at page 61 of the Tribunal's findings, it is stated :

"The Tribunal's responsibility was to find whether the appellant [i.e. the Applicant herein] had submitted sufficient evidence to support her claim that she was the rightful holder of the certificate.... The appellant failed to prove her case."

14. It is clear from this last passage, the Tribunal had borne in mind correctly the ultimate question which it needed to determine.

15. As regards the complaints raised in paragraphs 22 and 23 of the Grounds, they very conveniently omitted the various detailed and careful analysis of the Tribunal on the credibility of the Applicant and the other lady spanning over pages 26-61 of the Tribunal's findings. In order for the complaints in paragraphs 22 and 23 to be made out, I consider that the Applicant has to argue that the two matters referred to in sub-paragraph (5) at page 26 of the Tribunal's findings were of fundamental importance to the credibility of the witnesses. This is because, as I observed, the Tribunal's exercise of assessing credibility spanned over some 34 pages and quite some different matters had been considered by it. If the two matters which are referred to in sub-paragraph (5) at page 51 are not of fundamental importance, there is nothing unreasonable for the Tribunal to have reached its decision on credibility despite these two matters.

16. There is nothing to indicate that the Tribunal had not taken the two matters into account. Quite on the contrary, the fact that they were expressly stated as part of the findings makes it reasonable to conclude, and I so conclude, that the tribunals had in fact done so. It is not unknown that tribunals of facts may differ to certain extent in their approach in assessing credibility of witnesses. However, that does not mean that when a tribunal differs from the approach adopted by another one, the original approach must have been an unreasonable one.

17. Having perused all the materials and considered the submissions, I have no hesitation in agreeing with Mr Chan's written submissions. I consider that the answer to the question as to whether the approach adopted by the Immigration Tribunal in assessing the credibility of the Applicant and that of the other lady was so unreasonable that no reasonable tribunal, properly directed, could have adopted such an approach, must be answered in the negative.

18. For the above reasons, this application is dismissed.

Representation:

Mr Alex Ng, inst'd by M/s Miller Peart De Witt, for the Applicant

Mr Anthony Chan, inst'd by Department of Justice, for the Respondent.