Fung Tai Ho v. Immigration Tribunal and Another

HCAL129/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.129 OF 2003

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BETWEEN

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Before : Hon Burrell J in Court

Date of Hearing : 22 September 2004

Date of Judgment : 27 September 2004

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J U D G M E N T

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1.This is an application for judicial review against a decision of the Immigration Tribunal.  The relief sought is that the decision dated 23 April 2003 is quashed and the matter remitted for reconsideration.

2.An outline of the background is as follows.  The applicant came to Hong Kong from the mainland on 21 December 2000 on a two‑way permit in the name of Fung Tai Ho, her place of birth was recorded as Guandong Shanwei and her date of birth as 25 November 1948.  She was due to depart Hong Kong on 19 January 2001 but on 16 January submitted an application for a right of abode on the basis that she was not Madam Fung of the above date and place of birth but that she was in fact Yip Woon born on 8 March 1948 in Hong Kong.  She had a birth certificate of that name and date in her possession.

3.Her claim was that her natural mother had given her up for adoption or fostering to the Fung family who brought her up in the mainland.  Until 1984 she believed her birth name was Fung and that she had been born in the mainland on 25 November 1948.

4.Her adoptive mother died in 1969.  Her adoptive father died in 1984.  On his death bed he told the applicant she had been adopted and he gave her her birth certificate, which she has kept for the last 20 years.  Apart from the birth certificate all her other documents were in the name of Fung Tai Ho.

5.Before the tribunal the onus of proof was on the applicant to prove on a balance of probabilities that she had been born in Hong Kong.  In support she relied on her adoptive father’s death bed revelation and the birth certificate.  A witness, Ms Fung Choi also gave evidence before the tribunal.  She was the applicant’s elder sister who said that she remembered the applicant being adopted into her family in 1948 when she was 15.  In 1952 Fung Choi married and came to live in Hong Kong where she had remained ever since apart from occasional visits to her family in the mainland.  The tribunal also had statutory declarations from the applicant and Fung Choi.

6.In addition, the tribunal was provided with further written statements from three other witnesses from the mainland who did not attend the hearing.  They were :

(1)     a statutory declaration by Ms Lam Ming dated 10 January 2001;

(2)     a notarized declaration by Ms Lau King dated 21 April 2001; and

(3)     a notarized declaration by Ms Lau King and Ms Chin Chor Lin dated 30 September 2001.

7.These deponents were ladies in their late 70’s who had been friends or neighbours of the Fung family.  Their statements purported to recall events, some of which were over 50 years earlier.

8.In a succinct ruling the tribunal listed all the evidence it had received (as per above) and noted, in refusing the application, that there were discrepancies between the oral testimonies and the written testimonies of the applicant and Fung Choi and that there were further discrepancies between the declarations produced by the absent witnesses.

9.Mr Kwok Sui Hay, counsel for the applicant, very helpfully narrowed the issue on judicial review to one question (to which I refer later).  It is unnecessary therefore to make a detailed appraisal of the evidence which was before the tribunal.  Suffice it to say that in the ruling they noted a number of discrepancies in the evidence which led them to make a finding of fact that the applicant had not discharged the burden on her to prove that she had been born in Hong Kong.

10.The key discrepancies, noted in the ruling, were as follows :

(1)     There was evidence that the applicant first got possession of the birth certificate in 1984 when her father died.  There was other evidence that it was four years before his death in 1980.

(2)     There was conflicting evidence as to whether Fung Choi was present at the time the applicant was given her birth certificate.

(3)     There was conflicting evidence as to whether the applicant was adopted into the Fung family when in Hong Kong or when in the Mainland.

(4)     There was conflicting evidence about the applicant’s age when she was adopted.  The difference was eight months old or two years old.

(5)     There was conflicting evidence as to when the applicant discovered that her birth name was Yip Woon.

(6)     In addition, although not a discrepancy, the tribunal noted that the applicant had been to Hong Kong illegally on a number of occasions since 1984 and particularly for a seven‑year period between 1993 and 2000.  On none of these occasions, in spite of her alleged possession of her true birth certificate and true identity, did she apply for residency or claim to be other than Fung Tai Ho.

11.The tribunal’s decision upheld the Immigration Department’s decision dated 26 June 2002 in which, after setting out all the facts, the decision maker concluded :

“The sole evidence that the applicant produced to substantiate her claims was so flimsy that it is hard to put credit on it.”

12.The sole issue on judicial review concerned the evidence of one of the absent mainland witnesses, Madam Lam Ming.  Mr Kwok, for the applicant, submitted that the tribunal had reached an irrational decision because it had failed to consider the evidence of Lam Ming.

13.Lam Ming’s statutory declaration, briefly, stated that, when she was 18 years old (in 1948) she was a friend of the applicant’s birth mother.  She knew that her friend had got pregnant, and that about eight months after the child had been born, she was given to the Fung family who she remembered meeting on a few occasions.

14.Mr Kwok submits, firstly, that this evidence was not considered by the tribunal.  Secondly, that if it had been the tribunal’s findings of fact against the applicant may have been different and a different conclusion may have been reached.

15.In my judgment, both limbs of Mr Kwok’s submission fail.

16.With regard to the first, the tribunal referred to Lam Ming’s statement in the list of documents produced.  They adjourned during the hearing read all the statements.  It was referred to in detail by counsel to the tribunal in his closing address.  Finally, one of the important discrepancies, namely whether the applicant was eight months or two years old when adopted, to which the tribunal referred in its reasons, formed part of her evidence.  In short, in my judgment, to establish that the decision making process was flawed because of a failure to consider one statement resulting in an irrational decision, is a hopeless task.

17.Moreover, turning to the second limb of Mr Kwok’s submission, it is equally forlorn to submit that, on the assumption that they did fail to consider it, they might have reached a different conclusion if they had.  (This limb is in fact academic as a result of my finding that they did, in fact, consider it).  However, had it been given full weight it would still have been weighed in the balance against all the other evidence which taken together raise insurmountable doubts about the truth of her story.  The amount of weight to be attached to Lam Ming’s evidence would naturally be influenced by the fact that it was an untested written account made by a 77‑year‑old woman recalling events many decades earlier.  This would not necessarily render it of no value but it would plainly be a factor to be taken into account when assessing its reliability.

18.It was difficult for Mr Kwok to answer the criticism that, in reality, this was an appeal against a finding of fact dressed up as a judicial review.  His sole ground was that the decision was irrational because the decision making process omitted consideration of one witness’ testimony.  He conceded he had no other peg on which to hang his case.  In truth it was this type of case which caused Hartmann J to make the following observation in Chan Kim Hung v. Commissioner of Police [2001] 3 HKC at page 38 :

“In judicial review proceedings it has long been a fundamental principle that the court does not act as a general court of appeal; the court is concerned not so much with the wisdom of a decision but with the decision-making process.  As Lord Brightman said in Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155 (at 1173) :

Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power … Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.  …

… It is not therefore the role of the Court in exercising its supervisory jurisdiction to be drawn into a study of the minutiae of the evidence presented and the findings made.”

19.The application for judicial review is dismissed.  I make a costs order nisi against the applicant, such costs to be taxed if not agreed.  The applicant’s costs to be taxed in accordance with Legal Aid Regulations.

Mr Kwok Sui Hay, instructed by Messrs Barnes & Daly, for the Applicant

1^st Respondent in person, absent

Mr Dennis Law, instructed by Secretary for Justice, for the 2^nd Respondent