Re Wong Shu Hung

HCMP000228A/1985

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Coram: Hon. Mantell, J. in Court

Date of hearing: 2 May 1985

Date of delivery of Judgment: 9 May 1985

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JUDGMENT

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1. In April 1976 Wong Shu Hung entered Hong Kong illegally from China. He registered with the Hong Kong Immigration Department and has since been given permission to remain. He was followed by his wife Siu Sui Fong in September 1979. She too has been given permission to remain. According to both of them, they had left behind four children, Wong Kwok Keung, a son born on 8th April 1969, Wong Kwok Tai, a son born on 11th June 1970, Long Kwok Kay, a son born on 1st July 1973 and Wong Yuk Har, a daughter born on 16th June 1975. Since coming to Hong Kong they have had two more children, a son Wong Tak Fai born in 1980 and a daughter Wong Man Yi born in 1981. Again according to both of them when they first came to Hong Kong and later at the time of the confinement and birth of the two youngest children, they lied about the extent of their family in China. Instead of admitting to four children they acknowledged only the two youngest. That was reprehensible, no doubt, but readily understood if one accepts their explanation that they were afraid of being refused permission to remain if they made a full disclosure. On 18th August 1982 the two eldest children, Wong Kwok Keung and Wong Kwok Tai were smuggled across the border to join their parents. On 25th August 1982 they were taken to be registered with the Immigration Department at Lai Po Chung Chambers. Necessarily at that time the authorities were told that previous information as to the number of children in the family had been untrue. Later the same year the third and fourth children were also brought to Hong Kong illegally and registered with the Immigration Department. By way of explanation I interpolate that registration for the purpose of examination under Section 4(1)(a) of the Immigration Ordinance is the first step necessary in seeking to obtain permission to remain in Hong Kong under Section 13 and has the added consequence of protecting the person submitting to such examination from prosecution under Section 38. The examination under Section 4(1)(a) was protracted. Mr. Wong and his wife were not questioned until 2nd March 1983 when the Investigating Officer seemed more concerned with the commission of criminal offences than with challenging their claims to parentage. A further eleven months passed before they were interviewed again. Then too the object seems to have been to probe the possible commission of offences. However on 17th May 1984 there were further interviews with both Mr. Wong and Madam Siu and this time they were challenged about the inconsistencies between their present and previous claims. Their explanations were feeble and not entirely at one with those put before me. Nevertheless, Mr. Wong did show the Immigration Authorities documents which appear to support his contention that he and Madam Siu are the natural parents of all four children who came to Hong Kong in 1982. The children themselves do not appear to have been interviewed at any stage. On 3rd July 1984, nearly two years after first coming to Hong Kong, Wong Kwok Keung and Wong Kwok Tai by then 14 and 11 respectively were detained by the Immigration Department. On 7th July 1984 removal orders were made against them. They appealed to the Immigration Tribunal. On 13th July 1984 their appeals were dismissed without a hearing upon the ground that the facts or matters raised by their written notice of appeal could not entitle them to succeed.

2. On 29th January 1985 an application was made to this Court by Wong Shu Hung for leave to apply for Judicial Review of the decision of Immigration Tribunal. No explanation has been given for the delay in making the application nor has the Court been told what had happened to Wong Kwok Keung and Wong Kwok Tai in the meantime. It must be presumed that for some reason the removal orders have not been carried out and that the two children remain in custody. The application heard by me on 31st January 1985 was put on the very narrow basis that the facts contained in the notice of appeal before the  Immigration Tribunal together with the supporting documents sufficiently raised the proposition that the two children had implied permission from the Director of Immigration to remain in Hong Kong. After some hesitation and without offering any encouragement I gave leave pursuant to which the Court is now moved to quash the decision of the Immigration Tribunal and to direct the Immigration Tribunal to hear the appeals of the two children.

3. The Immigration Tribunal was informed by the Deputy Director of Immigration that his reasons for making the removal orders were twofold, namely that the alleged relationship between Mr. Wong and Madam Siu on the one hand and the two boys on the other was not supported by the evidence and to quote "it is believed that the two boys' natural parents are in China.". I do not think that I would have come so lightly to such a conclusion in view of the documentary evidence which taken at face value would seem to be conclusive of the claimed relationship and, the authenticity of which has not been doubted anywhere in the evidence or in the reasons put before the Immigration Tribunal. True it is that Mr. Wong and Madam Siu have made contradictory statements in the past and had their word stood alone it might have been right to say that the relationship had not been proved. As it is, I can only say I find the first reason puzzling. Unless it is put forward as the concomitant of the first, the second, namely the belief attributed to someone in the Immigration Department that the natural parents remain in China, would appear to have no basis whatsoever. Certainly it cannot come from the children themselves who, so it appears, have never been interviewed. Therefore, it would seem that if these removal orders are carried into effect the result will be that the Wong family will be separated perhaps indefinitely, and, as Mr. Wong himself affirms, it is not known what will become of the two boys. It is a sorry business and taking into account the period of time which was allowed to elapse before the removal order were made, the discretion to make them seems to have been insensitively exercised.

4. But all that is immaterial. The Director of Immigration and the Deputy Director of Immigration are not answerable to the Court for the manner in which they exercise their discretion in relation to the making of removal orders or indeed as to the giving of permission to remain in Hong Kong. No more are they matters which the Immigration Tribunal was entitled to take into account either in considering the written notice of appeal or on any subsequent hearing. The grounds upon which the Tribunal was entitled to entertain an appeal are set out in Section 53A(1) of the Immigration Ordinance.

It is not suggested in this case that either of these two children had any right to land in Hong Kong. It was raised on the application for leave and is now pursued at the substantive hearing that at the date  of the removal orders those children did have the permission of the Director of Immigration to remain in Hong Kong. It is not said that any express permission has been given or any entry permit issued but that such permission is to be implied from all the circumstances of the case. The ground of appeal was not set out in terms in the written notice to the Immigration Tribunal. Since the person against whom a removal order is made has 24 hours in which to serve his written notice of grounds of appeal it would be absurd to expect an alleged illegal immigrant, whether advised or not, to have sufficient grasp of the provisions of the Ordinance to be able to spell out his grounds of appeal in the terms of the Section. It should be enough if liberally and sympathetically understood the notice raises one or more of the specified grounds. It was so held by Mayo J. in the applications of Hui Lai-ming and Hui Ho-war ⁽¹⁾ and Mr. Stock for the respondent does not contend otherwise. Under Section 53(c) it is provided that: -

"Where the Tribunal, upon an examination of the written grounds of appeal on which a person appealing under section 53A seeks to rely, is satisfied that the facts or matters or which the appellant is seeking to rely are matters which would not entitle the appellant to succeed in the appeal, it may dismiss the appeal without a hearing and in any such case it should cause written notice of such dismissal to be given to the appellant and to the Director of Immigration."

I take that mean no more than that if the notice contains a reasonably arguable ground of appeal there must be a hearing by the Tribunal. A reasonably arguable ground of appeal must, of course, be one of the two grounds within Section 54A and capable of being supported by the facts or matters relied on in the written notice. Here the applicant invites the Court to hold that "permission" in Section 53A(1)(b) includes any implied permission; that on a liberal and sympathetic interpretation of the notice of appeal such ground was apparent and that the effluxion of nearly two years during which time no removal order was made gives rise to  the implication that permission had been given.

5. One judicial definition of "permit" includes the abstention from taking reasonable steps to prevent an act which it is within a man's power to prevent ⁽²⁾. Certainly in that sense of "suffering" the children to remain in Hong Kong the Director of Immigration had permitted their stay and they were still "permitted" to be here at the date of the making of the removal orders. It takes no more than a moment's reflection to show that such an attribution of meaning will not do in the context of the Ordinance. An illegal immigrant is suffered to remain in Hong Kong for the purpose of examination under Section 4 and the scheme of the ordinance would be frustrated if that were to be equated with permission under Section 53A. And having regard to the use of the word "authorise" in Section 13 I read the words "had ..... permission" as being equivalent to "had been given permission" connoting to my mind something less passive than mere acquiescence in someone remaining within the territory. So in my judgment at the very least the Director of Immigration must evince an intention to permit an illegal immigrant to remain before it can be said that there is any ground for appeal within Section 53A(1)(b). Of course that might be done by express words: it might be done by the issue of an entry permit; or it might be implied from words or conduct falling short of an express permission. The question here is whether by allowing time to pass without making a removal order the Director of Immigration can be said to have evinced an intention to permit these children to remain. I do not say that it could never be the case that the passing of time might give rise to such an implication but here the children in question were under examination (a better word might be "investigation") by the Immigration Department pursuant to Section 4(1)(a). Of the protracted nature of the investigation I have made mention but that it was continuing there can be no doubt. Interviews took place as late as May 1984 and the report upon which the removal orders were eventually made was presented at the beginning of July. In those circumstances, it is quite impossible to say that by reason of the passage of time the Director of Immigration evinced an intention to permit Wong Kwok Keung and Wong Kwok Tai to remain in Hong Kong.

6. I return to the three questions which in my judgment the Immigration Tribunal was bound to ask itself on considering of the written notice of appeal. The Immigration Tribunal was bound to answer the first question affirmatively, that is that the notice of appeal liberally and sympathetically interpreted does raise a ground of appeal that permission is to be implied from the circumstances of the case. The Tribunal should also have been satisfied that the ground raised was with Section 53A. But I think the Immigration Tribunal was correct in finding on the available material that the ground of appeal was not reasonably arguable. The application is dismissed.

(1)    M.P.No 1714/84) unreported, 7th September 1984

M.P.No.1715/84)unreported, 7th September 1984

(2)    Per Atkin LJ in Berton v. Alliance Economic Investment Co.  (1922) 1 KB 742 at p. 759

Representation:

S.M. Chan inst'd by John M. Pickevant & Co. for applicant

Frank Stock, Deputy Crown Solicitor and Dennis Law, Crown Counsel for respondent