Wong Lai-yik v. Director of Immigration

Case No.HCMP 1189/1988

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP001189/1988

M.P. 1988 No, 1189

IN THE HIGH COURT OF JUSTICE

HONG KONG

MISCELLANEOUS PROCEEDINGS

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IN THE MATTER of an application by WONG Lai-yik by way of Judicial Review to quash the decision of the Immigration Tribunal and for consequential relief

and

IN THE MATTER of an Immigration Tribunal's decision in the appeal of WONG Lai-yik under Section 53D of the Immigration Ordinance, Cap. 115 dated 20th May 1988.

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BETWEEN

	WONG Lai-yik	Applicant
	and
	Director of Immigration	Respondent

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Coram: Hon. Jones, J in Court.

Date of hearing: 6th September 1988

Date of delivery of judgment: 6th September 1988

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JUDGMENT

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1. I have before me a motion issued on behalf of Wong Lai-yik (the applicant), for judicial review pursuant to leave granted by Mayo, J. on the 6th July 1988.

2. The facts reveal that the applicant who is Chinese having been born in China entered Hong Kong illegally in December 1959. He was issued with an identity card on the 10th December 1959 and with a replacement card on the 19th June 1962. In 1962, he cohabited with Madam Law Sui-fang by whom he had three children, one of whom is alleged to be Wong Chi-wang who is the applicant for judicial review in M.P. 1162 of 1988 that was heard at the same time.

3. The applicant lived with Madam Law in Hong Kong until May 1966 when he returned to China for reasons which are not relevant to this application. The document that he used on his return to China was a one way entry permit good for a single journey. From 1966 until June 1987 when he returned to Hong Kong illegally, he remained in China having worked there during this time. Upon his return to Hong Kong he reported to the Immigration Authorities in order to regularise his position, but his application was unsuccessful. Eventually on the 21st April 1988 he was served with a Notice of Removal Order that had been made on the 13th April 1988 on the grounds that he had landed in Hong Kong unlawfully.

4. The applicant lodged an appeal against the removal order but his application was dismissed by the Immigration Tribunal on the 20th May 1988. The Tribunal found the following facts in coming to their decision :-

	(1)	that the applicant had lived in Hong Kong for 6½ years from December 1959 to May 1966;
	(2)	that the applicant chose to return to China in May 1966 for settlement purpose and thereafter lived in China; and
	(3)	that the applicant had not been an ordinary resident in Hong Kong for a continuous period of seven years.

5. Mr Necholas who today appeared for the applicant has agrued that the decision made by the Tribunal was unreasonable and therefore seeks an order of certiorari to quash the decision and for the matter to he remitted to the Tribunal. Essentially the only ground put forward is that the applicant did not in fact realise that when he returned to China, he only had a one way entry permit, but believed that he had a re-entry permit enabling him to return to Hong Kong. There was however no evidence before the Tribunal to support this contention.

6. In order for this court to interfere by way of judicial review, it must he established that the Tribunal's decision was illegal or irrational or wholly unreasonable or contrary to common sense. The matter to be determined by the Immigration Tribunal was wholly one of fact. Upon the evidence presented, there cannot be the slightest justification for any complaint to be made that the decision was in any way unreasonable so as to justify any interference by this Court. Indeed it would have been surprising if the Tribunal had come to any other conclusion. The motion must therefore be dismissed with costs.

	(B.L. Jones)
	Judge of the High Court

Representation:

Mr J. Necholas (Charles S.C. Yeung & Co.) for Applicant

Miss V.A. Hartstein (Attorney General's Chambers) for Respondent