Re Tsang Yau Chiu and Others

HCMP000566/1993

1993. MP No.566

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon Liu, J. in Court

Dates of hearing: 17 and 18 February 1994

Date of delivery of judgment: 24 February 1994

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J U D G M E N T

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1. Pursuant to leave granted, three boys born in 1986, 1988 and 1989 seek judicial review of the determinations of the Immigration Tribunal given on 11th January 1993. On that day, in the appeals heard under ss.53A - 53G of the Immigration Ordinance, the Immigration Tribunal concluded that none of the boys was born in Hong Kong to qualify him for a right of abode. In 1991, like claims were filed by the three boys but rejected by a differently constituted Immigration Tribunal. The 1991 determinations of the Immigration Tribunal were allowed to be quashed by a Consent Order. Their cases were re-heard. After the determinations of the Immigration Tribunal of 11th January 1993, the three boys felt aggrieved. This is their application to judicial review the Immigration Tribunal's 1993 decision.

2. On 14th December 1992 and 11th January 1993, the Immigration Tribunal in this case sat. The three boys were represented by a solicitor. The Immigration Department was represented by Crown Counsel. Seven witnesses were called and examined, comprising the boys' parents, the doctor, the former landlord Mr Li Ping, a photographer and friends. The boys' father claims to be at a loss as to "why the Immigration Tribunal did not believe that the applicants were born in Hong Kong". It is recognised that this was a simple case of credibility. The complaint of the boy applicants before me is focused on the reasons given by the Immigration Tribunal. They are said to be inadequate and/or unintelligible, hence the reasons purportedly given were not proper reasons.

3. In the Notice of Determination of the Immigration Tribunal served under s.53D of the Immigration Ordinance, the two adjudicators, Dr Tsz and Mr Tong, stated, inter alia, the following :

"2. On 11.1.1993, the Tribunal heard your appeal against the removal order and has determined pursuant to section 53D that on the facts of your case, which (sic) it found them to be as follows :

'We have considered carefully the evidence given by the appellants and witnesses, and note the following :-

(1) The records of the Immigration Department indicate that the father Mr Tsang Kwong-hung travelled frequently to China throughout the period from late 1983 to early 1990. In some cases, the father was away for 31 to 45 days. The mother said she did not go out for shopping but stored enough food for those periods. These contradicted the circumstantial evidence given by LI Ping.

(2) The telephone number given in the medical cards was not installed until 4 April 1990. The appellants visited the clinic again after they moved out of Wan Hon Street. There is no reason why this telephone number should be given to the doctor. Moreover, the telephone number was written as 3-427765 in two cases. This number never existed since easy-dial was already in operation in 1990.

(3) The rental contracts and rental receipts look very similar and the receipts were all dated the 23rd of the month.

(4) None of the forms submitted to the Government indicated that the family lived in Wan Ho Street.

(5) The witnesses claimed to have poor memories, but could remember vividly the details that could support the family, such as incidents when Mr and Mrs Tsang visited Mr Wong Chung in Lam Tin.

(6) The evidence given by the owner of the photo shop was not a proof that the wife was in Hong Kong before the birth of the first child. She only gave the evidence that the photo of the couple was taken in the winter of 1989, and that about one year later, the three sons took a photo together.'

On the balance of probabilities, we do not consider Masters Tsang Yau-chiu, Tsang Hin-fu and Tsang Chak-tok to be born in Hong Kong and therefore do not have the right of abode in Hong Kong." (Emphases supplied)

4. The six paragraphs set out above were skillfully assailed by Mr Dykes, counsel for the boy applicants. I would first remind myself of the law. I shall then state my conclusions, having regard to all that was submitted by Mr Dykes. I am equally indebted to Mr Kwok for his sustained efforts in assisting the court.

The Law

5. I. Neither common law nor, as a rule, the principle of natural justice would require reasons to be given in an administrative oriented decision. See the historical survey in Public Service Board of New South Wales v. Osmond, [1986]60 ALJ 209.

6. II. The circumstances giving rise to the need to give reasons are special and exceptional.

"The circumstances in which natural justice of procedural fairplay requires that an administrative decision-maker give reasons for his decision are special, that is to say, exceptional." See the Osmond case, supra at p.217 per Dean J.

"These are special circumstances which, quite apart from any implication to be derived from the wordings of s.53D, as to which I express no opinion, require as a matter of fairness the provision of outline reasons showing to what issue the tribunal has directed his mind and the evidence upon which it has based its conclusions." See Immigration Tribunal v. Lau Tak-pui & Others [1992]1 HKLR 374, at p.380 lines 33-36, per Kempster J.A.; see also observations of Cons V-P at p.382, lines 15-25.

7. III. In the development of administrative law, there has been a strong undercurrent to coerce administrators to furnish reasons for their determinations.

"I do not regard administrative failure or refusal to give any reasons as a sufficient exclusion of the court's surveillance. If all the prima facie reasons seem to point in favour of its taking a certain course to carry out the intentions of Parliament in respect of a power which it has given him in that regard, and he gives no reason whatsoever for taking a contrary course, the court may infer that he has no good reason and that he is not using the power given by Parliament to carry out its intentions." See Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1053 per Lord Pearce.

"If (an administrator) does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion." ibid at p.1061 per Lord Upjohn.

"The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for suggested irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a given decision, the decision-maker, who has given no reasons, cannot complain if a court draws the inference that he has had no rational reason for his decision." See R. v. Trade and Industry Secretary, ex parte Lonhro [1989]1 WLR 525 at p.539H, per Lord Keith.

"If I were to be asked to identify the most beneficial improvement that could be made to English Administrative Law, I would unhesitatingly reply that it would be the introduction of a general requirement that reasons should normally be available, at least on request, for all administrative actions. The only exception which I would countenance is one to cover those few situations where there is a compelling case for saying that the giving of reasons would be harmful in the public interest." 1989 Hamlyn Lecture "Protection of the Public - a New Challenge" p.92, per Lord Woolf, as he now is. It was urged at p.94 : "Where there is no requirement to give reasons, the courts could have adopted a more robust approach".

Once leave for judicial review is granted, the decision-maker is expected to conduct the proceedings "with all cards face upwards on the table". See R. v. Lancashire County Council, ex parte Huddleston [1986]2 AER 941 at p.945 g/h, per Sir John Donaldson M.R. However, a warning note was immediately sounded at p.946 f by the Master of the Rolls and at p.947 g by Parker L.J. that the grant of leave to apply for judicial review is no licence to fish for "new and hitherto unperceived grounds of complaint".

"It can be argued that if the right to be heard is to have any real meaning, then it must entail a duty on the part of the decision-maker to take account of the applicant's arguments in reaching his decision and to address and either to accept or reject in a reasoned way the points he makes. Furthermore, unless a party is given reasons for the decision, he is deprived of a proper chance to challenge the decision if he thinks it is wrong. It is only if reasons are given, that the party can known whether a decision-maker took account of some irrelevant considerations." See p.201 of Chapter 8 under the rubric "Natural Justice and Fairness - The Audi Alteram Partem Rule" by Michael Belloff in the publication of "Judicial Review" by Michael Supperston and James Goudie (1992). See generally Wade's Administrative Law, 6th edition and de Smith's Judicial Review of Administrative Action, 4th edition; "The Duty to Give Reasons : Potential and Practice" 1986 Public Law 437-469; "The Duty to Give Reasons" Justice "Administrative Justice : Some necessary reforms" 1988; "A Duty to Give Reasons for decisions as an Aspect of Natural Justice" Bridge in "Fundamental Duties" (1980) and "The Right to Reasons : Palmtrees in Retreat", Public Law 1991, pp.340-346.

8. IV. Despite the rationalisation by judges and scholars, few legislatures, except for the minority such as Canada and Australia and in selected areas, have seen fit to demand reasons from all administrative bodies.

9. V. Some examples of special circumstances in which reasons need be provided are : where there is a need to identify which of the several grounds founds the decision (R. v. Sykes (1875)1 QBD 52); where reasons are necessary for considering the exercise of a given right of appeal (Norton Tools Company Limited v. Tewson [1973]1 WLR 45) or for assessing any possible grounds for administrative law challenges (Lau Tak-pui, supra p.388 lines 28-29; Padfield v. Minister of Agriculture, Fisheries and Food, supra); after all "a right to reasons is an indispensable part of a sound system of judicial review" Wade on Administrative Law, 6th Edition, p.548. See also the Editorial Review on R. v. Derrv Produces Quota Tribunal and Minister of Agriculture, Fisheries and Food, ex parte Cooper [1993] C.O.D. 276.

10. VI. Where special circumstances within the rules of natural justice call for the giving of reasons or where the decision-maker is by law or otherwise obliged to furnish reasons, the format of the decision is to be dictated by the requirements of fairness in each case depending on the rights affected, the character of the decision-making body, the nature of the decision to be made and the legislative or other enabling framework and intent. There is no hard and fast rule.

"The so-called rules of natural justice are not engraved on tablets of stone. To use a phrase which better expresses the underlying concept, what the requirements of justice demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on anybody the power to make decisions affecting individuals, the court will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguard as will ensure the attainment of fairness" Lloyd v. McMahon [1987] AC 625 at pp.702-703, per Lord Bridge.

11 VII. No administrative body is enjoined to furnish reasons as are required of a District Judge under s.60(1) of the District Court Ordinance or of a High Court Judge under O.42, r.5B(1), RSC. For an Immigration Tribunals, it would be sufficient for the issue and the basis for the determination on that issue to be shortly stated.

"It must be apparent from what (they) state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions". (Emphasis added) R. v. Immigration Tribunal, ex parte Khan [1983] QB 790 at p.794 F, per Lord Lane C.J. It goes without saying that where reasons are obvious, implicit or inferential, they need not be stated.

12. VIII. For other tribunals, a terse concluding statement to the effect "that they are not satisfied in relation to the evidence given by a particular witness or that they are satisfied and so on" would normally be in order. See Alexander Machinery (Dudley) Limited v. Crabtree [1974] ICR 120. Providing "outline reasons" was also held to be good in R. v. CivilService Appeal Board ex parte Cunningham [1991]4 AER 310 at p.319 f/g, per Lord Donaldson M.R. "A few simple sentences" would suffice, ibid. p.323 c, per McCowan L.J. "Nothing more onerous is demanded ... than a concise statement". See R. v. Civil Service Appeal Board, ex parte Cunningham [1991]4 AER 310, at p.326 d, per Leggatt, L.J.

13. IX. For an Immigration Tribunal in Hong Kong sitting on appeal from a single issue decision such as the places of birth in this case, it is required to consider all the relevant evidence or, in other words, deal with all the material facts. The decision would not likely be questioned if it can be understood to have, expressly or by implication, considered all the evidence relevant to the issue or dealt with all the material facts.

Kempster J.A. chose to ground the court's supervisory jurisdiction over its decision on "special circumstances in the requirements of fairness". See Immigration Tribunal v. Lau Tak-pui & Others, Supra, p.379 lines 2-11. In the same case, Clough J.A. did not "find it necessary to look beyond the statutory regime" under s.53D for the Immigration Tribunal's duty to give reasons. See p.383 lines 44-45. Wherever the Immigration Tribunal's obligation to furnish reasons takes root, Kempster J.A. was of the opinion that in the case of the right of abode by birth the Immigration Tribunal had merely to address itself to the only issue, i.e. the place of birth and must expressly or by necessary implication consider all the evidence germane to that issue. See Lau Tak-pui, supra, p.381 lines 1-5. Clough L.J. advised that under s.53D(1) of the Immigration Ordinance, the tribunal was "to articulate findings of fact material to the issue ... and then to apply the relevant law to those facts". See p.388 lines 25-27. In practice, so concluded Clough L.J. confining himself to s.53D(1), the question is whether the tribunal has articulated "sufficiently the bases for its determinations in accordance with the spirit and intendment of s.53D". See p.388 lines 36-37. Vice-President Cons held that the Immigration Tribunal must "give adequate reasons" and he regarded the reasons given in the case of Lau Tak-pui as adequate. What seems to be more important than the erudite discussions in Lau Tak-pui was the general acceptance of the simplified format of the tribunal's determinations.

14. X. Decisions given must nevertheless be proper, intelligible and adequate. See Save Britain's Heritage v. No.1 Poultry Limited [1991]1 WLR 153 at p.166 H, per Lord Bridge.

"If the reasons given are improper, they will reveal some flaw in the decision-making process which will be open to challenge on some grounds other than the failure to give reasons. If the reasons given are unintelligible, this will be equivalent to giving no reasons at all. The difficulty arises in determining whether the reasons given are adequate, whether, in the words of Megaw J., they deal with the substantial points that have been raised or, in the words of Phillips J. in Hope v. Secretary of States for the Environment, 31 P. & C.R. 120, 123, enable the reader to know what conclusion the decision-maker had reached on the principal controversial issues. What degree of particularity is required? It is tempting to think that the Court of Appeal or your Lordships' House would be giving helpful guidance by offering a general answer to this question and thereby 'setting the standard' but I feel no doubt that the temptation should be resisted, precisely because the court has no authority to put a gloss on the words of the statute, only to construe them. I do not think one can safely say more in general terms that the degree of particularity required will depend entirely on the nature of the issues falling for decision." pp.166 H - 167 C, per Lord Bridge.

The Hong Kong Scenario

15. Applying the above principles in the context of an appeal before the Immigration Tribunal and acknowledging the not dissimilar practical assessment made of determinations by the judges in the Hong Kong Court of Appeal in Lau Tak-pui, it would seem that for tribunal decisions on a single issue of place of birth, it would be sufficient to state baldly that it is not satisfied with the evidence adduced after careful consideration. Of the three determinations of the Immigration Tribunal in the case of Lau Tak-pui, the joint determination for two applicants read as follows :

"After careful consideration of the evidence given by all parties concerned and by the witnesses presented, the Tribunal has come to the conclusion that the appellants have not discharged the burden of proof that they were born in Hong Kong and therefore do not enjoy the right of abode in Hong Kong under s.2A of the Immigration Ordinance."

In that determination, the Immigration Tribunal simply found the claim not proven by the evidence after careful consideration.

The relevant part of the other determination read :

"This Tribunal has considered all the facts and evidence presented and has heard the witnesses. The Tribunal has found many of them not particularly helpful in supporting the claim that the appellant was born in HK. This Tribunal is unable to find consistent evidence given by the father and the mother in the process of delivering their daughter Lai-san. Further to the contradicting evidence presented the Tribunal has found that the father had displayed ignorance of the delivery of a baby which he claimed was done by him when his son was born in February 1991. Hence, this Tribunal has good reasons to believe that the appellant was not born in HK and does not enjoy the right of abode in HK."

The Immigration Tribunal there found many of the facts not particularly helpful. The Immigration Tribunal converged on two matters -

(a) the inconsistency between the father and the mother as to the delivery of their daughter at her birth; and

(b) the father's ignorance of baby delivery.

These determinations satisfied Cons V-P., Kempster and Clough JJ.A.

16. There is no right of appeal from a determination of the Immigration Tribunal. It would seem to be quite unnecessary to make too much of an effort to marshal facts except to inform the appellants briefly why their appeals failed and broadly how their appeals had been decided. Kempster J.A. required the Immigration Tribunal to identify and address itself to the issue, i.e. places of birth, and consider, expressly or by necessary implication, all the evidence germane to that issue. The format in Lau Tak-pui would satisfy the requirements of Kempster J.A. Cons V-P regarded those determinations as having provided "adequate reasons". Clough J.A. accepted the same determinations as sufficiently articulated "bases for (the) determinations" under s.53D. Evidently, he must have found in those determinations sufficiently articulated findings of fact material to the issues for the applicant "to assess whether there (were) grounds for challenging the Tribunal's determinations by way of judicial review" In Lau Tak-pui, the concise decisions gave no more than a very generalised assurance of proper evidential evaluation, and they were all found acceptable.

17. A crucial purpose of a fair hearing is to leave the appellant with no residual doubt that the Immigration Tribunal had not assumed the "status of a free-wheeling palmtree" or treated the statutory power conferred upon it as "carte blanche". It must be shown in the determination, directly or inferentially, that the Immigration Tribunal had considered all the evidence relevant to the identified issue and dealt with all the material facts. It need not and cannot be expected to deliver decisions as are required of a court. Its explanations must be received with benevolence. On a single issue, a very brief statement could enable the appellant to assess whether the determination is amenable to administrative law challenges on the established grounds of illegality, procedural impropriety or irrationality. The judicial review court is not concerned with "whether their decision was right or wrong which is a matter solely for them, but whether the decision was lawful." R. v. Civil Service Appeal Board, ex parte Cunningham, supra at p.319 G, per Lord Donaldson M.R. In Hong Kong, a very simple format would meet the requirements of justice in a single issue determination by an Immigration Tribunal. The norm has implicitly been set by the judicial approval accorded to the determinations considered in the Lau Tak-pui case.

18. Lastly, in R. v. Immigration Appeal Tribunal, ex parte Mohd Amin, [1992] Imm AR 367 at p.374 Shiemann J. spoke of the statutory duties of English adjudicators in immigration matters as follows :

"(They) should indicate with some clarity in the decisions :

(1) What evidence they accept;

(2) What evidence they reject;

(3) Whether there is any evidence as to which they cannot make up their mind whether or not to accept it;

(4) What, if any, evidence they regard as irrelevant."

19. The very helpful reminder of Shiemann J. was clearly counsel of perfection. In the Mohd Amin case, the English Immigration Appeal Tribunal refused leave to appeal from the decision of an adjudicator. By r.14(2)(a) of the English Immigration Appeals (Procedure) Rules 1984, in entertaining an application for leave to appeal, the English Immigration Appeal Tribunal has to consider first, whether there is an arguable point of law, and secondly, if leave is sought on a ground of an alleged misdirection on a point of law by the adjudicator, whether the adjudicator could have reached the same determination in the absence of such alleged misdirection. Rule 14(2)(a) is set out at p.370. In essence, it would be encumbent for an English Immigration Appeal Tribunal to take on board all that could potentially be argued on an application for leave to appeal. At that stage, the English Immigration Appeal Tribunal must judge the complaint against all possible pitfalls in the best behaviour of an adjudicator. It cannot effectively decide on what could be potentially arguable except on the basis of a most demanding code of conduct. The granting or refusal of leave falls to be decided on potential arguability. Whilst the recommendations of Shiemann J. in the Mohd Amin case were derived form the code of conduct of a would-be exemplary adjudicator, not every shortfall from that code is a cardinal sin. As a matter of fact, a brief (as in the Crabtree case), concise, outline and simple-sentences (as in the Cunningham case) decision is all that is required of an administrative tribunal. Much less would be asked of an Immigration Tribunal sitting in a single issue appeal. If the observations in the MohdAmin case had been truly intended to have a general application, I would, with respect, treat it as an over-zealous attempt to introduce to the principle of natural justice a duty to detail reasons. Such a drastic departure would not be conducive to the steadfast progress made by administrative law in Hong Kong. In Australia, where judicial review concepts are more vigorously nurtured, an initiative by Kirby J., as he then was, to establish a right in the rules of natural justice to furnish reasons was soundly overturned by the High Court of Australia. See Public Service Board of New South Wales v. Osmond [1986]60 ALJ 209.

The Merits

20. Mr Dykes offered this court his very able analysis. As against a judicial body, there is much to be said for all his critical submissions. Suffice it for me to say that I have given them my careful attention. But the determinations of the Immigration Tribunal and the factors it noted should be benevolently considered. There is no dispute that the Immigration Tribunal had clearly addressed itself to the issue, the places of birth of the boy applicants. It correctly identified the burden of proof; it categorically informed the boy applicants that it had "considered carefully the evidence given by the appellants and witnesses"; after having noted six aspects it proceeded to its conclusion now under complaint. It was a relatively brief decision made on a clearly identified issue after, what I would regard as, proper consideration, expressly or by necessary implication, of all the relevant evidence. In this case, no challenge was otherwise mounted on the decision-making process. Whilst the joint determination in Lau Tak-pui would seem to meet the threshold requirement, it may be said that little more than its impugned determinations could fairly be expected of the Immigration Tribunal here as a lay body. The Immigration Tribunal noted that it would have been improbable for the father to absent himself for long periods from Hong Kong between late 1983 to early 1990, leaving a young isolated wife in the territory. The Immigration Tribunal also noted the unlikelihood of the mother not having to leave her shelter for replenishing the family supply during these protracted periods. Whether or not the mother's claim of her self-imposed seclusion had in fact been contradicted by some evidence of Mr Li Ping was clearly within the prerogative of the Immigration Tribunal. The Immigration Tribunal was also sceptical of the alleged circumstances relating to the telephone. The noting of these matters could have been made more systematic and sequential, but the effort illustrated that the tribunal had made a sensible and overall evaluation in its deliberation. The references noted were not, on their face, aberrant. The Immigration Tribunal further noted the "very similar" rental contracts and receipts and the dates. Of the many other probabilities, the Immigration Tribunal was entitled so to comment. The same observation would apply to the absence of the home address on governmental forms. In (5), the Immigration Tribunal made an observation on the performance of the witnesses, whose evidence it had "considered carefully". It is common ground that the photographer's evidence was unconnected with the issue. It was primarily led to corroborate the genuineness of the re-issued marriage certificate. The Immigration Tribunal cannot be criticised for prudently identifying certain evidence as being immaterial. This was yet a further illustration of the Immigration Tribunal's far-reaching treatment of the evidence adduced before it. By the references made to details of some of the features it had examined, the Immigration Tribunal demonstrated that it had sufficiently discharged its statutory duty under s.53D. It matters not that the decision of the Immigration Tribunal could have been better formulated, but as it stands, the determinations made therein were in accordance with the spirit and intendment of s.53D of the Immigration Ordinance.

21. For all these reasons, I refuse the application of the applicants. Subject to what counsel have to say, costs of these proceedings are to be costs in favour of the respondent.

Representation:

Mr P.T. Dykes, inst'd by M/s Boase & Cohen, for the Applicants

Mr S.H. Kwok, S.C.C. of Crown Solicitor, for the Respondent