Choy Siu Hung Alias Tsoi Siu Hung v. Attorney General the Immigration Tribunal

HCMP000079/1987

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MISCELLANEOUS PROCEEDINGS NO. 79 OF 1987

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BETWEEN

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Coram: The Hon, Jones, J. in Court

Date of hearing: 24th February 1987

Date of delivery of judgment: 24th February 1987

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JUDGMENT

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1. This is an application for judicial review by TSOI Siu-hung pursuant to leave granted by Deputy Judge Barnett on the 27th January 1987, By that order the applicant seeks the following relief:

2. A further ground was added today, no objection being taken by Counsel who appeared before the Crown, which was as follows:-

"Alternatively, if the Director of Immigration in or about 1986 had considered the applicant's application for permission to remain in Hong Kong, or for extension of permission to remain in Hong Kong, the Director in refusing such application was wrong in law and/or acted unfairly and unreasonably."

3. Relief is claimed by way of certiorari to quash that decision and also an order of mandamus directed to the Director of Immigration to reconsider the case.

4. The evidence before the Court is set out in an affirmation made by the applicant on the 9th January 1987 and an affidavit of an Immigration Officer, HAU Soo-mun which was sworn on the 18th February 1987. The evidence shows that the applicant arrived illegally from China on the 2nd November 1979 and on the 14th November 1979 was granted permission to remain in Hong Kong for. a limited stay, which stay has been extended from time to time on his application and was last extended until the 13th November 1985. The applicant was issued with an entry permit on the 14th December 1979 and with an identity card in May 1980. On the 2nd September 1981, the applicant obtained a document of identity for visa purposes which is issued to temporary residents of Hong Kong in order that they may travel outside the territory. This document which is usually valid for a period of seven years does not affect the national status of the holder. Further, it is not valid for the holder's return to Hong Kong unless it is stamped with a re-entry visa which may be either for a single journey or may be a multiple visa. As the applicant's first document of identity became defaced, he was issued with a replacement on the 10th November 1983.

5. The applicant went to China for a visit on the 12th January 1984. According to his affirmation, the applicant was subsequently detained by the police in China for a period of over one year and he claimed that all his travel documents including his Hong Kong Identity Card and his Hong Kong Re-entry Permit were seized and have not since been returned. The applicant agrees that he entered Hong Kong illegally on the 16th September 1986. He reported the loss of his documents to the police on the 18th September 1986, who in turn referred him to the Immigration Department. After investigations had been carried out, the Director of Immigration declined to exercise his discretion under Section 13 of the Immigration Ordinance, whereby he has a discretion to authorise a person who has landed in Hong Kong unlawfully to remain in Hong Kong subject to such conditions of stay as he thinks fit.

6. As a result of his decision to disallow the applicant to remain in Hong Kong, a Removal Order was made by the Director on the 8th December 1986 under the provisions of Section 19(1)(b) of the Immigration Ordinance which reads:-

7. The applicant lodged an appeal to the Immigration Tribunal under Section 53A of the Immigration Ordinance and this appeal was heard and dismissed on the 29th December 1986. Section 53D(1) of the Ordinance which relates to the determination of appeals provides:-

8. It was conceded at the hearing by Mr Lo, who appeared for the applicant, that the applicant was an illegal entrant and had no permission to land and further that he was allowed to present his case before the Director of Immigration. However, Mr Lo submitted on two grounds that the Director had exercised his discretion unfairly or unreasonably. First, that the applicant had a legitimate expectation that his application would be granted. This was made on the grounds that since his arrival in 1979, his various applications for renewal of stay had been granted, and that no new facts had emerged to justify a refusal of his application. In support of his submission Mr Lo cited Mclnnes v. Onslow Fane and another ⁽¹⁾ which concerned an application for a boxer's manager's licence to the British Boxing Board of Control. That application was refused. The plaintiff sought a declaration that the board had acted in breach of natural justice and/or unfairly in failing to comply with his request to be informed of the case against him or to grant him an oral hearing. The Court held:

"in view of the fact that the plaintiff had already made five unsuccessful applications for a manager's licence and had already had all his other licences withdrawn,he could only hope, and was not entitled to expect, to be granted a manager's licence, and in those circumstances the board's duty to act fairly was no more than a duty to decide the application honestly and without bias or caprice. The board were not under a duty to give the plaintiff any reasons for refusing or proposing to refuse his application or to give him an oral hearing before refusing it because a refusal did not necessarily cast any slur on the plaintiff ......................................... the plaintiff had not shown that the board had acted unfairly and therefore his claim would be dismissed."

9. The instant case is, in my judgment, clearly distinguishable. Here the facts show that the applicant's status is that of an illegal entrant. He has no right to land in Hong Kong for he did not come within any one of the categories set out in Section 8(1). Accordingly, at the time of his entry he could not be said to have had any legitimate expectation. Had, as Mr Whaley for the Crown submitted, he been making an application for a renewal, he might be able to argue that he did have such an expectation. However, upon the facts in this case I am quite satisfied that there was no legitimate expectation that he could expect, and accordingly this submission is rejected.

10. Mr Lo's second ground was that on the whole of the evidence, not to allow the applicant to remain in Hong Kong is manifestly arbitrary and unreasonable. No reasons have been given for the decision by the Director and I am quite satisfied, and indeed it is accepted by Mr Lo, that he is not obliged to do so. Mr Lo therefore invites me to look at the whole of the circumstances as to whether the decision was in fact justified. The evidence reveals that after his escape from detention in July 1985, the applicant remained with some of his relatives in China before he eventually came to Hong Kong in September 1986, Accordingly, he stayed there for a period of four months whilst his permitted period for stay in Hong Kong was still operative and of course, as I have said, he did not come to Hong Kong until the following year, in September 1986. Mr Lo cited a number of decisions concerning the court's function upon an application for judicial review as to whether the Court may enquire into the exercise by the Director of his discretion. Those cases were Minister of National Revenue v. Wrights' Canadian Ropes, Limited ⁽²⁾ ; Padfield and Others v. Minister of Agriculture, Fisheries and Food and Others ^（3）and R. v, Home Secretary, Ex p. Khawaja^（4）. None of those cases, however, affect the wellknown Wednesbury principles upon which the court will act on an application for a judicial review.

11. It is clear that the Director of Immigration has an unfettered discretion under the Section and that no criteria have been laid down as to how that discretion should be exercised. However, the court upon a judicial review is entitled to interfere if it has been exercised unfairly or unreasonably or contrary to the rules of natural justice. The onus lies upon the applicant to show that it has been exercised unfairly, and that onus is a high one. The test is to show that the decision was so unreasonable that no reasonable person could have made it. The court cannot, of course, substitute its own discretion for that of the Director. Mr Whaley cited a recent decision on this matter Puhlhofer & Anr. v. Hillingdon London Borough Council ⁽⁵⁾ where Lord Brightman had this to say at p. 518:-

"The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. v. Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] A.C. 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of the fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

12. In this case the appellant was not deprived of a fair hearing by the Director to whom he explained the full circumstances whilst he also took advantage of his right of appeal. Admittedly, this applicant did not disappear into thin air upon his arrival into Hong Kong by remaining here illegally but attempted to regularise his position. To that extent he may be afforded some sympathy. However, the circumstances do not show that the decision made could be said to have been either manifestly arbitrary or so unreasonable that no reasonable person would have come to that decision. The motion is therefore dismissed.

(1)    [1978] 3 All E.R. 211

(2)    [1947] A.C. 109

(3)    [1968 ] A.C. 997

(4)    [1984] 1 A.C. 74

(5)    [1986] A.C. 484

Representation:

Mr Peter Lo (Kwan & Kwan) for the Applicant

Mr B. Whaley for the Attorney General