Lau Fong v. The Director of Immigration
Read the full judgment text of HCAL 128/1999 on BabelCite. This High Court CFI judgment was delivered on 29 June 2000.
1. The Applicant in this matter was born in 1966 in the Province of Liaoning and was raised in the Mainland. However, in late 1995 she obtained permission to come to Hong Kong to settle here. That permission was given to her by the Ministry of Public Security and was contained in a document commonly called a ' one-way permit '. The Applicant sought permission to come to Hong Kong on the basis that she was married to a Hong Kong permanent resident named Leung Wai Ming. Leave was granted on that b
Cited by 4 cases · Cites 5 cases
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HCAL000128A/1999 HCAL 128/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 128 OF 1999 ____________
____________ Coram: Hon Hartmann J in Court Dates of Hearing: 20 and 21 June 2000 Date of Handing Down Judgment: 29 June 2000 ______________ J U D G M E N T ______________ 1. The Applicant in this matter was born in 1966 in the Province of Liaoning and was raised in the Mainland. However, in late 1995 she obtained permission to come to Hong Kong to settle here. That permission was given to her by the Ministry of Public Security and was contained in a document commonly called a 'one-way permit'. The Applicant sought permission to come to Hong Kong on the basis that she was married to a Hong Kong permanent resident named Leung Wai Ming. Leave was granted on that basis. 2. The Applicant arrived in Hong Kong on 23 December 1995. Initially, she was permitted to remain here for a specified period of 12 months. In January 1996 she applied for a Hong Kong Identity Card, submitting her one-way permit in support of her application. At about the same time she applied for a Document of Identity. In essence, a Document of Identity serves as a form of passport. It is a document issued to Hong Kong residents who do not enjoy right of abode and who are unable to obtain a passport. It is issued to facilitate travel in to and out of Hong Kong. Neither the Hong Kong Identity Card nor the Document of Identity issued to the Applicant conferred on her any right of abode or right to enter and remain permanently in Hong Kong. 3. Both documents were issued to the Applicant on the basis that she was the 'rightful holder' of the one-way permit issued to her by the Ministry of Public Security. In this regard, the affirmation of Acting Assistant Principal Immigration Officer Tam Wing Yin reads as follows:
4. The Applicant has made no claim to being a Hong Kong permanent resident who, in terms of section 2A or 2AAA of the Ordinance enjoys either right of abode in Hong Kong or the right to land here. Although a citizen of the People's Republic of China, the Applicant has therefore at all times been subject to section 7 of the Immigration Ordinance, Cap. 115 ('the Ordinance') which directs that a person who does not enjoy permanent residence or the right to land may only land in Hong Kong with the permission of the Director of Immigration acting through his officers and assistants. In order to exercise their discretion in determining whether or not to grant such permission, Immigration Officers and Assistants have powers in terms of section 4 of the Ordinance to examine persons who are seeking to land in Hong Kong. If permission is granted, section 11(2) of the Ordinance authorizes Immigration Officers and Assistants to impose conditions; for example, by way of limiting the period of time during which the person may stay in Hong Kong. It is not disputed that, while resident in Hong Kong, the Applicant was at all times subject to conditions imposed under section 11(2); more particularly, to specified limits of stay. In this regard she received various extensions, the last giving her permission to stay until 9 January 2003. 5. During her time of residence in Hong Kong, the Applicant travelled frequently. More particularly, on 5 September 1999 she travelled to the Mainland. When she returned to Hong Kong via Lo Wu approximately a month later; that is, on 4 October 1999, she was stopped by officers of the Immigration Department and, in terms of section 11(1) of the Ordinance, was refused permission to land. She was detained and questioned. She was informed that she was suspected of 'possessing and using' an illegally obtained one-way permit in order to come to Hong Kong and of making false representations in regard to that document when arriving in Hong Kong on 23 December 1995. As to how it was that she had come into possession of her one-way permit by illegal means, she was informed of the allegation that she had falsely claimed to have 'gone through marriage formalities in 1990'. As was her right, the Applicant refused to answer questions at that time. However, she obtained legal representation and correspondence then ensued between her solicitors and the Director of Immigration. On 6 October 1999 the Director wrote to the solicitors, that letter reading (in part) as follows:
6. As a result, judicial review proceedings were instituted, the Applicant seeking orders of certiorari to quash the decisions of the Director to refuse her permission to land in terms of section 11(1) of the Ordinance and thereafter, in terms of section 18, to order her removal from Hong Kong. 7. As I understand it, the decisions of the Director have been attacked on 3 grounds. First, it is argued that the decisions are 'Wednesbury unreasonable' in that they have no basis in evidence or are based upon an insufficiency of evidence. Second, it is contended that the Director is guilty of procedural impropriety in denying the Applicant a fair hearing and refusing to give adequate reasons for his decisions. Third, the decisions are attacked on the basis that, in terms of Article 31 of the Basic Law, the Applicant has the unrestricted freedom, as a non-permanent resident, to enter Hong Kong, a freedom that she was denied when she was refused permission to land. 8. As already indicated, the factual issues in dispute in this matter are centered on the manner in which the Applicant came into possession of the one-way permit enabling her to enter Hong Kong in December 1995. That permit was obtained on the basis that she was married to a Hong Kong resident named Leung Wai Ming and in my judgment the core issue, therefore, is the 'true' status of that marriage. The factual background 9. The Applicant's immigration records show that she first entered Hong Kong on 9 January 1993. On that occasion she was in transit to Bangladesh and was carrying a passport of the People's Republic of China. It transpires that, upon arrival in Bangladesh, the Applicant married Leung Wai Ming, the ceremony apparently taking place on 12 January 1993. She then obtained a Bangladeshi passport in the name of Uasha Chakma, a woman ostensibly born in Bangladesh. 10. On 16 January 1993, the Applicant entered Hong Kong using her Bangladeshi passport. On the basis that she was married to Leung Wai Ming, a Hong Kong permanent resident, she was permitted to remain in Hong Kong until 16 April of that year. However, she remained in Hong Kong after that date and was arrested in May when she went into hospital. Her purpose for entering hospital was to give birth. On 23 May 1993, she gave birth to a daughter named Tin Wai. Leung Wai Ming, her ostensible husband, denied paternity. 11. Under caution, the Applicant explained how she had come to marry Leung Wai Ming in Bangladesh and why it was that she had come to Hong Kong using a Bangladeshi passport that was later proved to be a forged document. The Applicant said that in or about late 1991, in the Shenzen area, she commenced an intimate relationship with a man named Ng Kam Chuen who was a Hong Kong permanent resident but who was already married with children. In or about August 1992, the Applicant discovered that she was pregnant with Ng's child. She did not wish to give birth to an illegitimate child in the Mainland. Accordingly, Ng arranged for her to fly to a Bangladesh where she met Ng's friend, Leung Wai Ming, who had agreed, for a sum of money, to enter into a sham marriage with the Applicant. The purpose of this sham union was to give credibility to her false claim to being a citizen of Bangladesh. When asked how she had come to know Leung Wai Ming, she answered in the following terms:
12. It appears that Ng accompanied the Applicant to Bangladesh and remained with her there, making arrangements for the issue of the necessary false documents. When asked about Leung Wai Ming, the Applicant replied:
13. The Applicant was sentenced to 9 months' imprisonment for various offences under the Ordinance and, when released, was repatriated to the Mainland. This was at the end of January 1995. As the paternity of her daughter remained in issue, the daughter remained in Hong Kong pending finalization of arrangements for her return to the Mainland. 14. Later that same year, the Applicant obtained a one-way permit to come to Hong Kong to join her husband here, the same Leung Wai Ming. As mentioned at the beginning of this judgment, the Applicant was given permission to stay in Hong Kong, that permission to endure in the first instance for a period of 12 months. In early 1996, the Applicant was interviewed by an Immigration Officer in respect of her daughter, Tin Wai. When asked how she had come to apply for a one-way permit, the record of interview records to the following:
15. In this interview the Applicant asserted that she had married Leung Wai Ming in April 1990. However, if her assertions made under caution after her arrest in 1993 are given any credence, she only came to know Leung Wai Ming in or about 1992. 16. A check of Leung Wai Ming's travel records revealed that between October 1989 and 17 May 1990 he had not left Hong Kong. It would not therefore have been possible for him to have entered into a valid marriage with the Applicant in Dalian City in April 1990. 17. In September 1996, the Director wrote to the Ministry of Public Security in Beijing to seek its assistance. That letter and annexures to it set out a detailed history of the matter and said:
18. A reply was eventually received by letter dated 28 June 1999. In translation, the relevant portion of that letter reads as follows:
19. Among the enclosures was a letter from the Dalian Public Security Bureau which confirmed that the Applicant and Leung Wai Ming had made an application for the registration of their marriage at the Chinese-Foreign Marriage Registration Office of the Department of Civil Affairs. The application however had been made on 11 April 1992 not 1990. The application had been approved and a marriage certificate duly issued. 20. At the time when the Applicant was stopped at Lo Wu and refused permission to enter Hong Kong, the Director was therefore in possession of the letter from the Ministry of Public Security stating that - after investigations - the Ministry was satisfied that the one-way permit had been obtained by the Applicant by the use of fraud. 21. When initially detained on 4 October 1999 and questioned under caution, the Applicant was shown the certificate of marriage issued in Dalian City bearing the date 11 April 1990. She declined to answer any questions in regard to that document. There is no evidence to suggest that at that stage she knew of the assertion by the Mainland authorities that, despite what appeared on the face of the marriage certificate, it had been registered in 1992 not 1990. This is supported by the fact that on 7 October 1999 the Applicant made an affirmation in support of this application for judicial review in which she affirmed the following:
22. It was only after the affirmations of a number of Immigration Officers had been filed in or about January of this year that the Applicant attempted to explain why on earlier occasions she had averred that she had married Leung Wai Ming in April 1990 when, in fact, it now transpired that the marriage had been registered in April 1992. The Applicant, in an affirmation dated 17 May 2000, affirmed as follows:
23. However, if credence is given to the Applicant's assertions made in a cautioned statement in 1993, in April 1992 she was having an on-going affair with Ng and, if she had met Leung Wai Ming at all, had only done so on one or two occasions on a casual basis. 24. Finally, for the sake of completeness, it should be mentioned that, when the Applicant came to Hong Kong on the strength of her one-way permit on 23 December 1996, she had no idea of the whereabouts of Leung Wai Ming who had not contacted her while she had been in the Mainland. It appears that the two only came into contact at some later stage so that the Applicant could obtain a divorce from him. That decree of divorce was made final in or about 1998. The burden of proof 25. Mr Pun, who appeared on behalf of the Applicant, has argued that, according to the Director, the Applicant obtained permission to enter and stay in Hong Kong by fraud or deception. As a result, the burden of proving that she obtained permission by deception rests upon the Director and the standard of proof required, while a civil standard, is at the top end of the scale; namely, proof to a high degree of probability. Mr Pun seeks support for his contention in the House of Lord's decision of Khawaja v. Secretary of State [1984] AC 74. 26. Miss Kwok, who appeared on behalf of the Director, contended that this was not a case in which the criteria laid down in Khawaja as to the burden and standard of proof should apply. This was a case, she argued, where the only challenge could be on standard 'Wednesbury' principles. 27. Miss Kwok argued that Khawaja only applies to those cases where an applicant is able to show that he or she entered Hong Kong with the permission of the Director and thereafter, while remaining in Hong Kong, had been detained and arrested as an illegal entrant on the basis that he or she had obtained the original permission to enter by means of deception. In such circumstances, when an applicant is residing in Hong Kong by virtue of an ex facie valid permission, it is not sufficient for the Director to disturb that position of settled residence unless evidence exists to show to a high degree of probability that such permission was obtained by deception. 28. Miss Kwok has argued that in the present case, however, the Applicant was not residing in Hong Kong at the time she was refused permission to land. The Applicant had left Hong Kong on 5 September 1999 and was refused permission to land when she attempted to re-enter Hong Kong on 4 October 1999. In such circumstances, the Applicant was not residing here by virtue of an ex facie valid permission. That permission had fallen away when she had left Hong Kong in September and, upon her return, she was effectively seeking a fresh permission to enter and stay. 29. I am satisfied that Miss Kwok is correct in her submissions. As I have said earlier, persons, like the Applicant, who do not enjoy right of abode or the right to land in Hong Kong may only reside here with the permission of the Director given in terms of section 11 of the Ordinance. However, section 11(10) states:
30. In a recent judgment (Director of Immigration v. The Immigration Tribunal and Bahadur HCAL 83/1999) I considered the true meaning of that sub-section when I said the following:
31. I went on to conclude that section 11(10) had the following consequence; namely, that if -
32. Accordingly, when the Applicant in the present case departed Hong Kong in September 1999, whatever permission to reside here she might previously have enjoyed immediately fell away. When she attempted to return, she had to seek a new permission; she enjoyed no subsisting right to reside in Hong Kong. 33. I am fortified in my opinion that this Court may only review the exercise of the Director's discretion in the present case according to standard Wednesbury principles by the decision of the English Court of Appeal in Sattar v. Secretary of State for the Home Department [1988] IMM AR 190. In that case the Appellant had originally been admitted to the United Kingdom on the basis that he was the son of his sponsor. He returned to his home country for a short period and, on his return to the United Kingdom, sought leave to enter as a returning resident. On enquiry, the Immigration Officer concluded that he was not the son of his sponsor and that his original leave to enter had therefore been secured by deception. Accordingly, leave to enter was refused and his removal was ordered to his home country. The Judge at first instance concluded that this was not an illegal entrant case to which the criteria laid down in Khawaja applied but was rather a 'port refusal' case in which the only challenge could be on Wednesbury principles. His finding was supported by the Court of Appeal. In so far as is relevant, the provisions of the United Kingdom Immigration Act 1971 referred to in Sattar are essentially the same provisions as those contained in section 11 of our Ordinance to which I have made reference. The Wednesbury challenge 34. On behalf of the Applicant, Mr Pun has argued that the decisions of the Director to refuse the Applicant permission to land in Hong Kong, and thereafter to seek her removal, were irrational in that there was no evidence - and certainly not sufficient evidence - upon which the Director could come to the conclusion that the Applicant had, under the law of the Mainland, obtained her one-way permit to come to Hong Kong by fraud. 35. Mr Pun has based his argument on what I have described as the 'narrow contention' that the Director founded his decisions solely on the contents of a letter dated 28 June 1999 from the Ministry of Public Security in Beijing. That was the letter in which the Ministry stated that, after investigation, it had been found that the Applicant had obtained her one-way permit by fraud. Mr Pun has pointed to the fact that there are no apparent reasons to back up that assertion, no particulars of the alleged fraud have been given. A wrong date may have appeared on the marriage certificate, he argued, but it was as likely as not that this was an innocent bureaucratic error. Clearly, there had been an application for the issue of the marriage certificate in the proper form and equally clearly a genuine certificate had been issued, even if did bare an incorrect date. Accordingly, other than the bland assertion of the Mainland authorities that the one-way permit had been obtained by fraud, there was no evidence upon which the Director could reasonably find that such was, in fact, the case. 36. In my judgment, however, Mr Pun's narrow contention - focused solely on the authenticity of the Dalian City marriage certificate and the one-way permit - are not an answer to the much broader basis upon which the Director reached his decisions. There is ample material to show that the Director founded his decisions on the basis that, while the relevant papers may have been obtained by the use of correct application procedures and while those papers may of themselves have been issued in accordance with the dictates of Mainland law, they do not - in fact and in substance - reflect a 'true' marriage between the Applicant and Leung Wai Ming or a genuine desire by the Applicant to come to Hong Kong for the purposes of joining Leung Wai Ming and thereby uniting the family unit. In short, in my judgment, there is ample material to show that the Director based his decisions on what he found to be a series of fraudulent contrivances. In this regard, in his affirmation of 3 January 2000, Acting Assistant Principal Immigration Officer Tam Wing Yin has said the following:
37. With specific reference to what the Director has found to be the Applicant's fraudulent application to come to Hong Kong as the wife of Leung Wai Ming, the affirmation of Tam Wing Yin continues as follows:
38. Just as Mr Tam in his affirmation has referred to 'proper applications' made by other would-be migrants, so I have employed the adjective 'true'. By that I mean true not simply in outward form but in substance too. In that sense, did the Dalian City marriage certificate reflect a true union between the Applicant and Leung Wai Ming or did it, as with the Bangladeshi marriage papers, reflect a sham union entered into for purposes of deceiving the Hong Kong Immigration Authorities? If the Director did not investigate the Applicant's conduct on this broader basis of fraudulent intent and actual deception, why advise the Ministry of Public Security in Beijing of the full history of the matter including the Applicant's admitted conduct in Bangladesh? Why also would there be the need for the Immigration Officers who have filed affirmations in these proceedings to attempt to paint such a broad canvass depicting the Applicant's conduct as one in which she has exploited the ordinary processes of civil administration for unlawful means? 39. In the circumstances, I am satisfied that it is artificial to review the decision making process of the Director on the narrow basis contended by Mr Pun. Such a review must be conducted on the broader basis of all the evidence that was before the Director at the time he made his decisions. 40. On that basis, I cannot see how the Director's decisions can be criticized as being 'Wednesbury unreasonable'. It is not for this Court to consider the merits of those decisions. It was the function of the Director (where necessary acting through his authorized officers) to consider the evidence, weigh its credibility and to make findings of fact. Was there sufficient evidence to justify the findings of fact that were made? I do not believe the matter is open to debate. Clearly there was a wealth of such evidence. 41. In the course of his submissions, Mr Pun made reference to the affirmation of the Applicant dated 17 May 2000 in which she attempted to explain the discrepancy in dates appearing on the Dalian City marriage certificate and why it was that she did not bring it to the attention of the Immigration Department at an earlier stage. But that explanation, of course, while before this Court, was not before the Director when his decisions were made. 42. The Applicant's affirmation contains no more than her protestations of innocence. It may suggest that the Director was therefore wrong in reaching the decisions that he did but it comes nowhere near to showing that he was plainly wrong; that is, that he was unequivocally mistaken. It was open to the Applicant to make such protestations before the Director made his decisions. This Court is not now in a position to consider them, not without encroaching on the Director's discretion to weigh the evidence and to decide what he accepts and what he rejects. 43. As an extension of his narrow contention, Mr Pun submitted that there was no evidence before the Commissioner that the one-way permit issued to the Applicant by the Mainland authorities had been unlawfully obtained by her according to the law of the Mainland. 44. As I understood Mr Pun's argument, without further enquiry resulting in more detailed explanation from the Beijing Authorities, the Director was wrong in law to place any reliance on the letter of 29 June 1999. Why? Because a simple, unsubstantiated allegation of fraud is not, in the circumstances, reasonably capable of supporting a finding of fact that fraud had been committed according to the law of the Mainland. 45. However, on the purely factual basis that the letter confirmed an error in the date of marriage, the true date being one which the Applicant had not spoken of before, I am satisfied that the Director was entitled, in the exercise of his discretion, to take that into account along with other evidential material then before him. 46. In addition, I believe that, in the exercise of his discretion, the Director must be able to consider all relevant material coming before him and it is for him to give to that material such weight as he deems proper provided only that he must not act in bad faith or arbitrarily or perversely. I believe that Stock J correctly set out the position of the Director when, in the case of Aita Bahadur Limbu v. Director of Immigration HCAL 133/1999 he said:
47. I fail to see how it can be said that the Director acted in bad faith, or arbitrarily, or perversely in placing reliance on the assertion of fraud contained in the letter of 28 June 1999. In his initial enquiry the Director had set out the full history of the matter known to him at the time. This included evidence that Leung Wai Ming had only come to know the Applicant in 1992 either just before she fell pregnant or when she was already pregnant, the true father being her lover, Ng, and that Leung Wai Ming had agreed to go through a bogus marriage ceremony in Bangladesh in January 1993 not for the purposes of bringing the Applicant to Hong Kong to live with himself but for the purposes of ensuring that she was able to come to Hong Kong to give birth to Ng's child. In reply, the Ministry of Public Security said that it had investigated the matter. Clearly such investigation would have been conducted in light of the information supplied by the Director. The assertion of fraud by the Mainland authorities could have come as no surprise to the Director, especially upon discovery of the fact that the Applicant's alleged marriage to Leung Wai Ming had not taken place in 1990 but had taken place in 1992 at a time when, on all the existing evidence, the Applicant was the mistress of Ng and had only met Leung Wai Ming through Ng on a casual basis; even more so when it was known that Leung Wai Ming had been used as a person willing to put his name to documents in order to secure the Applicant's entry into Hong Kong. 48. In such circumstances, I cannot see that it was incumbent upon the Director to seek a detailed report from Beijing giving chapter and verse, both as to factual findings and the law. 49. In the circumstances, the Applicant's challenge to the decisions made by the Director on the basis that they were irrational or perverse or made upon an insufficiency of evidence must fail. Procedural impropriety 50. It was submitted on behalf of the Applicant that, as a citizen of the People's Republic of China, when she took up residence in Hong Kong in November 1995 and was granted non-permanent residence here, she acquired a 'special status'. This status was protected by both the Basic Law and the International Covenant on Civil and Political Rights. It was argued that, before any decision was made depriving her of that 'special status', she was deserving of a fair hearing. She had, however, been given no such hearing. As a result, so it was argued, the Director has breached his duty to act fairly. 51. These submissions were founded on two principles; first, that the Applicant had acquired a 'special status' and, second, that the decisions of the Director deprived her of that status. Mr Pun argued that the Court recognised today that certain interests should be protected by fair procedures. A classification of those interests had been made in McInnes v. Onslow Fane [1978] 1 WLR 1520 where three different types of cases were distinguished. The three have been summarized in Principles Of Judicial Review by de Smith, Woolf and Jowell at p. 227:
52. A fair hearing, it was said, should be granted in cases involving 'forfeiture' and (normally) 'expectation', but not in cases involving mere 'applications'. 53. The learned authors have not given their whole-hearted support to this classification, saying that, like other attempts of classification, McInnes has its shortcomings. The analysis would, if strictly applied, result in anomalies. However, in broad principle, the authors note that there is a presumption that procedural fairness is required whenever the exercise of a power adversely affects an individual's rights that are protected by Common Law or created by statute. These include rights in property, personal liberty and status. The duty to afford procedural fairness is not however limited to the protection of legal rights in a strict sense: it also applies to more general interests such as the interest in pursuing a livelihood or protecting personal reputation or enjoying a benefit conferred by a decision-maker. 54. According to Mr Pun, as a non-permanent resident of Hong Kong, the Applicant was entitled to enjoy the protections afforded to her by Article A31 of the Basic Law. That Article reads:
55. Article 31, he argued, was supported and amplified by Article 12.4 of the International Covenant on Civil and Political Rights. That Article reads:
56. While, of course, the court must give a generous interpretation to the provisions of the Basic Law which contain constitutional guarantees of personal freedom, those provisions must be read in context. The context will include other provisions of the Basic Law. In this regard, see NG Ka-ling and others v. Director of Immigration [1999] 2 HKCFAR4 (at pp. 28 and 29). 57. Article 31, which appears in Chapter III of the Basic Law, does not stand on its own. It must be read in conjunction with Article 39, that Article stating:
58. Article 39, therefore, anticipates that the rights and freedoms of Hong Kong residents may be limited when prescribed by law. This is subject only to the condition that such restrictions shall be compatible with the various international instruments referred to in the Article in so far as they have been applied to Hong Kong. Authority for this is to be found in Secretary for Justice v. The Oriental Press Group Ltd and others [1998] 2 HKLRD 123 in which Chan CJHC and Keith J (as he then was), in speaking of Article 27 of the Basic Law, said at p. 164:
59. The requirement of compatibility with the various international instruments referred to in Article 39 only extends to those provisions which have been applied to Hong Kong. In this regard, when the Government of United Kingdom was still responsible for the affairs of Hong Kong, it entered certain reservations in respect of the International Covenant on Civil and Political Rights. One reservation applied to Article 12.4 of the Covenant and is recorded in the following terms:
60. Accordingly, at the date when the Basic Law came into being, Hong Kong had reserved the right to continue to apply immigration legislation, even if it was incompatible with Article 12.4 of the International Covenant on Civil and Political Rights, to govern those persons who do not have 'the right' under Hong Kong law to 'enter and remain' here. 61. The reservation is specific in that it applies to persons who do not have the right under our law who enter and remain in Hong Kong; the reservation does not apply to those who have right of abode or the right to land in Hong Kong in terms of section 2A or 2AAA of the Ordinance. However it does apply to those persons, like the Applicant, who must seek the permission of the Director to enter Hong Kong and who may only stay for prescribed periods of time. 62. I am satisfied, therefore, that Article 12.4 of the International Covenant on Civil and Political Rights does not confer any absolute right on the Applicant as she has never been a person who has the right under Hong Kong law to enter and remain here on an indefinite basis. She has at all times been a person who must seek the permission of the Director to enter and to take up residence and who is subject to limitations on that permission. 63. Similarly, Article 31 of the Basic Law does not confer upon the Applicant any absolute freedom to enter and leave Hong Kong. It is a freedom that may be prescribed by law and has been so prescribed. An important prescription is that contained in section 11(10) of the Ordinance which it is convenient to recite again:
64. Pursuant to section 11(10), when the Applicant departed from Hong Kong on 5 September 1999, I am satisfied that she lost any 'special status' that she may earlier have acquired as a non-permanent resident. When she returned to Hong Kong and was refused permission to land, she was not at that time being 'deprived' of any status relevant to rights of residence in Hong Kong; no such status existed: it had been lost upon her departure. The Director did not deprive her of that status, she abandoned it. 65. On the more general basis, the permission granted to the Applicant in November 1995 to land in Hong Kong was vitiated by the deceptions employed to secure her entry and she had to be treated as one who had landed unlawfully; in short, as an illegal immigrant. The Director's power to remove an illegal immigrant under sections 18 and 19 of the Ordinance are administrative powers rather than judicial. 66. As a result, the grounds on which the exercise of that administrative power may be judicially reviewed are limited. The Court will intervene in the event of misuse or abuse of that power or if it has been exercised irrationally. But it will go no further. Authority for this may be found in the decision of the Court of Appeal in Ho Ming Sai and Others v. Director of Immigration [1994] 1 HKLR 21 in which Godfrey J (as he then was), in considering the Director's administrative powers under section 13 of the Ordinance to refuse to allow an unlawful entrant to remain in Hong Kong, said as follows:
67. Stock J, in his judgment in Yu Ah Wing v. Director of Immigration [2000] 1 HKLRD 365, saw no reason why different principles should apply as between sections 13 and 19 of the Ordinance, the power to remove an illegal immigrant under section 19 being part of the 'same coinage' as the power to refuse entry to an illegal immigrant. Section 18, in terms of which the Director has made his decision to order removal in the present case, describes a summary form of removal and is therefore part of the same coinage too. 68. In the circumstances, I am satisfied that the Director was under no obligation to proceed in accordance with the rules of natural justice to ensure that the Applicant received what Mr Pun described as a 'fair hearing'; that is, an opportunity to receive all the materials on which the Director came to his decisions, an opportunity to draft representations in respect of those materials and to have such representations considered by the Director who thereafter would have an obligation to give adequate reasons for his decisions. The Applicant's constitutional right to enter Hong Kong 69. Mr Pun contended that, in terms of Article 31 of the Basic Law, the Applicant, as a non-permanent resident and as a citizen of the People's Republic of China, had a constitutional right to enter Hong Kong; that was a right which subsisted until her status as a Hong Kong resident had been removed by order of the Director. Mr Pun argued that it was therefore illegal for the Director to refuse her permission to land in Hong Kong. 70. As I understand it, his contentions in this regard have been founded essentially on the unfettered primacy of Article 31 of the Basic Law. However, for the reasons which I have earlier detailed, I am satisfied that Article 31 must be read with Article 39 of the Basic Law, that second Article validating the provisions of the Ordinance relevant to non-permanent residence. In light of those findings, I am satisfied that the Applicant, after she had left Hong Kong, had no constitutional right protected by the Basic Law to re-enter Hong Kong. Conclusion 71. In the event, I am satisfied that there are no grounds sufficient to impeach the decision-making process of the Director or the individual decisions made by him. The applications to quash the order refusing permission to land and the subsequent removal order are therefore dismissed. There will be a costs order nisi that the Applicant shall pay to the Director his costs of and occasioned by this motion, such costs to be taxed if not agreed.
Representation: Mr Hector Pun, instructed by Messrs Patrick Wu & Co., for the Applicant Ms Nancy Kwok, of Department of Justice, for the Respondent Appeal to Court of Appeal by applicant. Appeal allowed. Please refer to the appeal judgment of CACV287/2000 Dated 13 December 2002 |
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