Mumtaz Hussain v. The Chief Executive in Council and Another

HCAL000163A/2002

HCAL 163/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 163 OF 2002

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Coram: Hon A Cheung J in Court

Date of Hearing: 31 October 2003

Date of Judgment: 18 November 2003

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J U D G M E N T

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1.This is an application for judicial review in respect of four decisions made by the Director of Immigration and the decision of the Chief Executive in Council confirming the four decisions of the Director.

2.The Applicant's mother was born in Hong Kong. She is a permanent resident in Hong Kong. The Applicant was born on 15 May 1979 in Pakistan. He is a national of that country. On 21 August 1998, the Applicant and his younger brother came to Hong Kong as visitors. They subsequently applied to the Director of Immigration for a change of status to remain in Hong Kong as the dependants of their mother who thus acted as their sponsor. After investigations, the Director refused the applications on the ground that the Director was not satisfied that the mother was financially capable to support the brothers' living in Hong Kong. Further submissions were made and further investigations were conducted, and all this led to three subsequent decisions by the Director, refusing the repeated applications by the brothers to reconsider their cases. An additional reason for the refusal was given in the process, namely, that the Director was not satisfied that the Applicants were the dependants of their mother and that they came to join their mother as her dependants.

3.The two brothers eventually took their cases, by way of objections pursuant to section 53 of the Immigration Ordinance (Cap. 115), to the Chief Executive in Council. This set in motion the standard process whereby the Director of Immigration prepared a written comment on the two brothers' statutory objections, which was then sent to the brothers' then lawyers for their comment, and was eventually sent to the Chief Executive in Council together with the written comments from the brothers' then lawyers. On 8 February 2002, the brothers were informed that the Chief Executive in Council had confirmed the decisions of the Director of Immigration. No reasons were supplied for the decision of the Chief Executive in Council, as no explanations or reasons were given by the Chief Executive in Council for his decision.

4.Originally, both brothers took out applications for judicial review, leave having been granted for their doing so. Subsequently the younger brother of the Applicant withdrew his application because he had married in the meantime and the basis of his application for a change of status was thus changed.

5.In this application for judicial review by the remaining Applicant, so far as the several decisions of the Director are concerned, it is said that the Director's reason that he was not satisfied as to the genuineness of the claimed dependency was "spurious and not bona fide held", and, insofar as it was advanced as a reason, was Wednesbury unreasonable. As to the Director's further reason that he was not satisfied with the financial ability of the mother to sponsor the application, it is said that the reason was Wednesbury unreasonable.

6.As regards the Chief Executive in Council's decision to confirm the Director's decisions, it is said that the decision is vitiated by virtue of "the failure to provide any, or any adequate, reasons therefor".

7.At the hearing of the substantive application, the Applicant, who was unrepresented, also urged upon the Court that his mother is now sick and requires his care and attention in Hong Kong, that he has a right to be with his mother in Hong Kong, and he has spent 5 years by now remaining and idling in Hong Kong without work. I am afraid none of these are relevant to the Applicant's present judicial review application.

8.Turning to the Director's several decisions, there can be no dispute that the Director has been vested with a wide discretion regarding applications for a change of status. Policies of immigration control are involved here, and the courts have without exception paid high regard to the immigration policies formulated by the Director and the implementation of these policies in the Director's day-to-day decision-making process. The court's role, sitting in a judicial review application, is merely supervisory in nature. It does not perform the role of a first instance fact-finding tribunal, nor does it exercise any appellate jurisdiction from the decisions of the Director. It is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process rather than whether the decision was correct: Kemper Reinsurance Co. v Minister of Finance [2002] 1 AC 1, 14H (per Lord Hoffman).

9.As regards the allegation that the reason given by the Director, namely, that he was not satisfied as to the genuineness of the claimed dependency, was spurious and not bona fide held, the main plank of the argument is that this was not given as a reason for the initial decision of the Director in refusing the brothers' applications for a change of status. As mentioned above, after the initial decision was made, the brothers made further representations and put in further documents in support of their respective cases, and asked the Director to reconsider his decision. The reason that the Director was not satisfied as to the genuineness of the dependency was only advanced by the Director when he made his second decision to refuse the brothers' renewed applications for a change of status. It is said that the additional reason was a "curious afterthought" and was only put forward by the Director when he found that the original reason for his decision (i.e. insufficient financial ability of the sponsor) could no longer be maintained in the light of the further information and material supplied by the Applicant and his brother when they requested the Director to reconsider his earlier decision.

10.On the basis of the material that has been placed before the Court, I do not accept the argument. In an affirmation filed on behalf of the Respondents in opposition to the present application, the responsible immigration officer has set out and explained in detail the handling of the repeated applications of the brothers for a change of status in the present case, including the interviews that the immigration officers in question had conducted, the documents and information that they had been supplied with, the investigations that they had carried out, the matters that they had taken into consideration and borne in mind, the suspicions that they had had, the decisions that they had arrived at, and the reasons for the decisions made. I have no reason to doubt the truthfulness of the contents of the affirmation, and to be fair, there is no such suggestion. In a nutshell, what happened was that when the Director's officers first handled the applications of the two brothers, they carried out the necessary investigations and came to the conclusion that the claimed financial ability of the sponsor was less than genuine, and the sponsor did not have the requisite financial ability to maintain the brothers as required by the Director's policy; they thus decided that the applications should be refused. In paragraph 37 of the affirmation, it was explained thus:

"Since it was clear that Madam Ghulam Zuhra [i.e. the mother of the Applicant] could not keep herself and Mumtaz [i.e. the Applicant] and Ishfaq [i.e. the Applicant's brother] to any standard of living let alone a standard of living well above subsistence level, the applications were well outside any policy of the Director whereby he would admit aliens with no claim upon Hong Kong for residence as dependants. The officers did not address any other issues that might have arisen and been dispositive of the application. There are many thousands of dependency applicants every year and when there is one dispositive issue which is clearly against an applicant there is no requirement of policy or law that other potentially dispositive issues have to be considered and decided at the cost of the scare resource of time."

11.It was in those circumstances that the only reason supplied for the Director's first decision was that the Director was not satisfied as to the sponsor's financial ability, and no other reasons were mentioned.

12.The affirmation went on to explain why and how the brothers' subsequent request for a reconsideration of the Director's decision set in motion the Director's officers' further investigations as to the claimed reason of the brothers' coming to Hong Kong, which eventually led to their conclusion that the brothers did not come to Hong Kong as dependants of their mother and that they did not come to join her as her dependants. It was in those circumstances that the Director also supplied this as an additional reason for refusing the brothers' applications for a reconsideration of the Director's earlier decision. In particular, the affirmation explained that when the Director made his initial decision, information relating to the brothers' interview upon arrival clearance at the Hong Kong Airport Immigration Control Point while presenting as visitors was not before the first decision-makers who were unaware of the interview. In that interview, the Applicant claimed that he was a policeman in Pakistan whilst his younger brother was a student, and they were only visiting Hong Kong for two or three weeks for sightseeing and shopping. All this was subsequently known to those responsible for considering the brothers' requests for reconsideration of their cases. They carried out further investigations, and eventually concluded that they could not be satisfied with the genuineness of the bothers' claim of dependency. Thus this also became an additional reason for the Director's refusal to accede to the requests to reverse his earlier decision.

13.In short, I wholly reject the allegation that this additional reason was spurious or not bona fide held. Furthermore, I am satisfied by the evidence that has been placed before me that it was arrived at by the responsible officers based on the material before them and the results of the investigations carried out by them. It was a conclusion that they were entitled to reach. This Court is not concerned with the merits of the decision, but rather the legality of the decision and the fairness of the decision-making process. I see no grounds at all for interfering with the decision reached by the Director's officers. I reject the Applicant's argument.

14.As regards the challenge concerning the other reason for the Director's decisions, namely, the financial inability of the sponsor, the affirmation filed on behalf of the Respondents set out in great detail the considerations that had went through the minds of the responsible officers of the Director. The Director (through his officers) has come to a certain view on the facts. He was not satisfied with the financial ability of the sponsor. That was a conclusion that he was entitled to reach on the material before him. I see no grounds for interfering with his decision in the present judicial review context. Without going into the details of the case in this regard, as this Court is not really concerned with the merits, I would simply say that there was ample material before the Director to justify his conclusion; put another way, there were more than sufficient suspicions about the claimed financial ability of the sponsor to justify the Director's conclusion that he was not satisfied with the financial ability of the sponsor. But as I say, in the present judicial review context, I see no grounds for interfering with the Director's decision. I also reject this ground as a ground for challenging the Director's several decisions.

15.In conclusion, I dismiss the application for judicial review of the several decisions of the Director.

16.Turning to the application for judicial review of the decision of Chief Executive in Council confirming the several decisions of the Director, as I said, the only ground of challenge is the failure on the part of the Chief Executive in Council to give reasons for his decision.

17.Section 53 of the Immigration Ordinance reads as follows:

"53. Review of decisions of public officers

(1) Subject to subsection (8), any person aggrieved by a decision, act or omission of any public officer taken, done or made in the exercise or performance of any powers, functions or duties under his Ordinance may by notice in writing lodged with the Chief Secretary for Administration within the time prescribed in subsection (2) object to that decision, act or omission. (Amended 62 of 1980 s. 8; L.N. 362 of 1997).

(2) An objection under subsection (1) shall be lodged within the period hereinafter specified after the person aggrieved was informed of the decision, act or omission or the same became known to him (whichever is the earlier), that is to say -

(a)	within 24 hours, in the case of a person who, having landed in Hong Kong unlawfully, has been in Hong Kong in the opinion of the Director for less than 10 days; (Amended 75 of 1981 s. 9)
(b)	within 14 days, in any other case.

(3) An objection under subsection (1) by a person referred to in subsection (2)(a) shall be considered by the [Chief Executive]; any other objection under subsection (1) shall be considered by [Chief Executive] in Council.

(4) On consideration of an objection under subsection (1), the [Chief Executive] or the [Chief Executive] in Council, as the case may be, may confirm, vary or reverse the decision, act or omission of the public officer or substitute therefor such other decision or make such other order as he thinks fit.

(5) The [Chief Executive] in Council may at any time of his own motion vary or reverse any decision, act or omission of any public officer taken, done or made in the exercise or performance of any powers, functions or duties under this Ordinance or substitute therefor such other decision or make such other order as he thinks fit.

(6) Nothing in this section entitles a person to object under this section to any decision, act or omission of the [Chief Executive], the [Chief Executive] in Council or any court or entitles in [Chief Executive] in Council to review any decision, act or omission of a court.

..."

18.Mr Marshall SC, appearing together with Mr Lee Tin Yin for the Respondents, submitted that the formula used - "may confirm, vary or reverse" - in section 53(4) of the Ordinance, and the absence of any express requirement in section 53 or elsewhere in the Ordinance for supplying reasons, mean that there is no requirement on the part of the Chief Executive in Council to give reasons for his decision to confirm the decision below, there being no general duty at common law, at least thus far, to the effect that a public authority must always give reasons for its decisions.

19.In So Chung v Commissioner of Correctional Services, HCAL 2438/2000 (31 January 2001), Hartmann J had to deal with whether the Commissioner of Correctional Services, in hearing an appeal from a conviction of a disciplinary offence under the Prison Rules (Cap. 234), had a duty generally to give reasons for his decision or, if not, whether, in the particular circumstances of that appeal, that duty fell upon him. The learned judge eventually concluded that no such general duty was imposed on the Commissioner. On pages 12-14 of his judgment, the learned judge said:

"I am satisfied that, absent special circumstances to which I shall refer later, no general duty is imposed on the Commissioner to give reasons when exercising his discretion in terms of Rule 255F. I say so for the following reasons:
	(i)	The regulatory framework within which the Commissioner discharges his appellate role does not direct him to give reasons. Indeed, it requires him to do no more than confirm or reverse the findings of the disciplinary tribunal.
	(ii)	The proceedings are 'domestic' in the sense that the process of trial and appeal remains within the Department. The process on appeal is not referred to an outside body which, as a stranger to the disciplinary code, may be expected to supply reasons for its interpretation of that code.
	(iii)	The Commissioner does not act as an investigation body. The disciplinary tribunal has already gathered the evidence and made determinations which are supported by reasons. The Commissioner is required to do no more than review the procedures adopted and the findings made and to assess them in light of his knowledge of and experience in the Department.
	(iv)	There is no appeal from the Commissioner to a higher appellate body. There is no imperative, therefore, to supply reasons for the benefit of any higher appellate body. While the Commissioner's review of any appeal to him may be subject to review by this Court, this Court is not an appellate Court looking at the merits; it considers rather the lawfulness of the process.
	(v)	As the statutory head of the Department, aware of the often subtle dimensions of the disciplinary code which ensures the efficient working of the Department, the Commissioner may be called upon to articulate sometimes inexpressible value judgments in reviewing appeal papers placed before him. Expressed plainly, the Commissioner may intuitively be sure that the proceedings are fair and the findings right within the context of the disciplinary code but find it difficult to articulate that knowledge. Indeed, it may be argued that if the Commissioner had to give reasons in such circumstances he may be forced to resort to legalism, what Lord Donaldson, in Cunningham (supra), described as that 'most distressing of diseases'.
	(vi)	In R v Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 WLR 242, Sedley J considered past authorities and extracted from them certain principles pointing to a duty to give reasons. He found that reasons may be required when the interest at issue is so highly regarded by the law (for example, personal liberty or dismissal from long-term careers) that fairness dictates reasons must be given. The Commissioner, however, in his appellate role, considers internal disciplinary matters attracting no more than a comparatively small fine, extra duty or a reprimand. I do not see that the law (or public policy) can in such matters demand the giving of reasons.
It is for those reasons that I am satisfied that, absent special circumstances, there is no legal basis for requiring the Commissioner to give reasons. But what of those 'special circumstances'? I believe that there are essentially 2 classes of cases which may oblige the Commissioner to give reasons:
	(i)	If the Commissioner is forced in any particular case to call for the taking of evidence again or the taking of new evidence, then, unless the disciplinary tribunal conducts that exercise and comes to new findings, the Commissioner will be taking on what is essentially an investigative role. In such circumstances, I am of the view that he will be obliged to act as the tribunal acts; that is, to support his findings with reasons.
	(ii)	In R v Higher Education Funding Council (supra), Sedley J identified a class of case where the decision on its face appears so aberrant that fairness dictates that the recipient should know if the apparent aberration is in the legal sense real (and so challengeable) or only apparent. Should the Commissioner be faced with such a case, and in the most unusual circumstances of confirming the findings, I believe he would then be obliged to give reasons. Why? Because fairness would then dictate that he explain the apparently inexplicable.
In my judgment, neither of the special circumstances to which I have referred are applicable to the Applicant's appeal to the Commissioner."

20.It should be noted that under the relevant statutory framework in that case, the Chief Executive or the Commissioner may "confirm or reverse" the finding below that is under challenge.

21.With due respect to counsel, I am acutely aware of the fact that the Applicant in the present case is unrepresented, and I have therefore not really heard any real legal arguments on the issue under consideration from the side of the Applicant. What I am going to say is only based on the limited, albeit helpful, assistance that I have received at the hearing from Mr Marshall and his junior. (I should not, however, be taken as implying or suggesting that Mr Marshall and his junior have not tried their best to assist the Court thoroughly on the subject in question).

22.In my judgment, a similar analysis is helpful in the present case. First, the Immigration Ordinance does not direct the Chief Executive in Council to give reasons. Indeed, it requires him to do no more than confirm, vary or reverse the decision below. In this regard, I note that unlike So Chung, here the Chief Executive has the power to vary the decision below, but on the facts, I am not concerned with whether the Chief Executive has a general duty to supply reasons if he decides to vary the decision below. I am here only concerned with whether he has a general duty to give reasons when he decides to confirm the decision below.

23.Secondly, the whole process in question may be described as "domestic" in the sense that the Chief Executive in Council, as the supreme executive body in the administration, is required by the Ordinance to confirm, vary or reverse the decision of the Director of Immigration made in the course of his handling immigration matters as a senior member of the administration. The objection process in section 53 is not referred to an outside body which, as a stranger to the immigration matter in question, may be expected to supply reasons for its decision. The position is very different from an appeal to the Immigration Tribunal specifically set up by the Immigration Ordinance to handle appeals relating to certain immigration matters.

24.Thirdly, like the Commissioner of Correctional Services, the Chief Executive in Council does not act as an investigating body. The Director has already gathered the evidence and made determinations which are supported by reasons. The Chief Executive is required to do no more than review the procedures adopted, the findings made and the decisions made and to assess them in the light of his knowledge of and experience in immigration policies and matters.

25.Fourthly, there is no appeal from the Chief Executive in Council to a higher appellate body. There is no imperative, therefore, to supply reasons for the benefit of any higher appellate body. While (subject to Mr Marshall's so-called fall-back position) the decision of the Chief Executive in Council may be subject to review by this Court, this Court is not an appellate court looking at the merits; it considers rather the lawfulness of the process.

26.The fifth reason mentioned in Hartmann J's judgment has no application in the present case.

27.Sixthly, as regards whether the interest at issue is so highly regarded by the law that fairness dictates reasons must be given, I tend to think that arguably the interest at stake here is high. That is a pointer in favour of a duty to give reasons.

28.As regards the special circumstances mentioned by Hartmann J, in the present case, the Chief Executive in Council was not forced to call for the taking of evidence again or the taking of new evidence and did not take on what was essentially an investigative role. Finally, the decision of the Chief Executive in Council on its face does not appear so aberrant that fairness dictates that the recipient should know if the apparent aberration is in the legal sense real (and so challengeable) or only apparent.

29.Moreover, as Hartmann J further explained in Wong Wai Tak v The Secretary for the Civil Service, HCAL 2335/2000 (22 February 2001), the question of whether reasons are to be supplied is ultimately a matter of justice or fairness (see pages 22 - 26 of the judgment). The decision of the learned judge was affirmed on appeal: CACV 611/2001 (10 July 2001). In my judgment, in a situation like the present one, where the Chief Executive in Council merely confirmed the decisions of the Director in a statutory objection under section 53 of the Immigration Ordinance, justice or the attainment of fairness does not require the supply of reasons, and the lack of stated reasons in the present case does not vitiate an otherwise rational decision nor is it unfair to the Applicant.

30.Bearing the above considerations in mind, on balance, I am not persuaded that the Chief Executive in Council has a duty generally to give reasons for its decision made under section 53 of the Immigration Ordinance or, put at the lowest, that there is any such general duty to supply reasons for a decision to confirm the decision of the Director below in a statutory objection under section 53 of the Ordinance. Nor am I persuaded that in the particular circumstances of the present statutory objection, that duty fell upon the Chief Executive in Council.

31.There are two further reasons for my rejection of the Applicant's application for judicial review. First, the actual decision of the Chief Executive in Council in the present case was the confirmation of the Director's decisions. As explained above, as per standard procedure, the Director had prepared and supplied to the Chief Executive in Council a very detailed written comment on the statutory objections raised by the two brothers. The comments of the brothers' lawyers were sought and were also supplied together with the Director's comment to the Chief Executive in Council. The Chief Executive in Council eventually decided to confirm the Director's decisions.

32.In my judgment, in the absence of any suggestion to the contrary, one may reasonably assume that the decisions were confirmed by the Chief Executive in Council for the reasons relied on by the Director as set out in the comment. In other words, unless the Chief Executive in Council indicated that additional or alternative reasons were relied on in reaching the conclusion to confirm the decisions of the Director, it may be reasonably assumed that the reasons of the Director were the reasons of the Chief Executive in Council in confirming the decisions of the Director. In other words, even if I was wrong relating to whether the Chief Executive in Council had a duty (general or special) to supply reasons in the present case expressly, the reasons were apparent from the whole process itself, and no or no real prejudice had been caused to the Applicant. Judicial review being a discretionary remedy, that by itself would be a good reason for denying relief even if, for the sake of argument, one were to assume that there was such a duty to supply reasons in the present case. For a brief discussion on the court's discretion to refuse relief, see paragraph 32 of my judgment in Wu Chung Yi Eddy v Secretary for Justice, HCAL 209/2002 (14 October 2003).

33.Secondly, I am of the view, based on the evidence that has been placed before me, that on the merits, the Director had an overwhelming case, and there really was no realistic chance of the Applicant succeeding before the Chief Executive in Council. In other words, again, relief should, as a matter of discretion, be denied in any event.

34.Having come to the above conclusion, there is no need for this Court to deal with the so-called fall-back position of Mr Marshall, namely, that the decisions of the Chief Executive in Council are immune from judicial review by reason of section 64(3) of the Interpretation and General Clauses Ordinance (Cap. 1), a matter which has been adjudicated upon, albeit on an interlocutory basis, by Hartmann J in Gurung Bhakta Bahadur v Director of Immigration [2001] 3 HKLRD 225. Mr Marshall said that the Respondents have been looking for a suitable case in which the whole matter can be revisited with fuller arguments than that which has been advanced before Hartmann J in his case, at the hearing of the substantive application for judicial review. I am afraid this case has not turned out to be a suitable case, given my views on the other issues raised. Whilst I have been supplied with Mr Marshall's and his junior's very learned and detailed written submissions on the point, I am not prepared to say anything about it.

35.In conclusion, the challenge against the decision of the Chief Executive in Council must also fail.

36.I order that the present application for judicial review be dismissed. Having heard the parties (on a provisional basis), I see no reason why costs should not followed the event. I am further persuaded that in view of the issues and potential issues raised in the present application, although not all of them were eventually argued at the hearing or required to be decided by the Court, the instant case justified the retaining of a leading counsel in addition to Mr Marshall's junior. I have been supplied with particulars of the legal costs that have been incurred by the Respondents. I am prepared to make a summary assessment of the Respondents' costs in the global sum of $200,000.00. I therefore order that the costs of these proceedings in the sum of $200,000.00 be paid by the Applicant to the Respondents, such costs are to be taxed if not agreed. Whether the Respondents will take steps to enforce payment is, of course, a matter entirely for the Respondents to decide.

Representation:

The Applicant, appearing in person

Mr William Marshall, SC and Mr Lee Tin Yan, GC, instructed by the Secretary for Justice, for the Respondents