V v. Director of Immigration
Read the full judgment text of CACV 9/2006 on BabelCite. This Court of Appeal judgment was delivered on 19 May 2006 before Ma CJHC, Stock JA, Yeung JA.
Administrative law – immigration – Immigration Ordinance (Cap 115) – section 36(1) recognizance as alternative to detention – whether Applicant 'liable to be detained' under section 36(1)(b) – overstayer subject to ongoing CAT screening following Prabakar – whether 49-day maximum detention period under section 32(2A) also caps duration of recognizance – whether impermissible conditions in recognizance (residence at specified address and restriction from leaving Hong Kong Island) invalidate the entire recognizance and the underlying decision – Interpretation and General Clauses Ordinance (Cap 1) s.37(1) – prescribed Form 8. The Applicant, a torture claimant and overstayer, was required by the Director of Immigration to enter into a recognizance under section 36(1) of the Immigration Ordinance while the Director was considering whether to make a fresh removal order under section 19(1)(b)(ii) and while CAT screening was being conducted following the Court of Final Appeal's decision in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187. The Applicant contended, first, that he was not a person 'liable to be detained' within section 36(1)(b) because the CAT screening would necessarily exceed the 49-day maximum period of detention under section 32(2A), and secondly, that the inclusion of impermissible conditions (residence and movement restrictions not permitted by the prescribed Form 8) rendered the entire recognizance and the underlying decision unlawful. The Court of Appeal (Ma CJHC, Stock JA and Yeung JA) held that the Applicant was a person 'liable to be detained' because the Director was actively considering whether to make a removal order, and rejected the argument that the 49-day period under section 32(2A) also caps the duration of a recognizance under section 36. The court reasoned that section 36 contains no time limit and sets out a separate, detailed scheme for recognizances distinct from detention; sections 36(3)–(6) permit recognizances imposed by a magistrate of up to six months, demonstrating that recognizance and detention are not equivalent in duration or kind. As to the impermissible conditions, the court held that the Director's power under section 36(1) is limited to requiring a recognizance 'in the prescribed form' (Form 8, which permits only amount, number of sureties, and reporting requirements); the residence and movement restrictions were therefore void and of no effect. However, the court drew a distinction between the decision to require a recognizance and the implementation of that decision, holding that the inclusion of impermissible conditions does not invalidate the recognizance as a whole or the underlying decision to require one. Section 37(1) of the Interpretation and General Clauses Ordinance was held inapplicable on the facts. The appeal was dismissed; the impermissible conditions were declared void and of no legal effect, and an order nisi was made for costs to the Respondent.
Legal issues: Power of Director of Immigration to require recognizance under section 36(1) of the Immigration Ordinance · Effect of impermissible conditions on validity of recognizance and underlying decision
Outcome: Appeal dismissed. The Director's decision to require the Applicant to enter into a recognizance under section 36(1) of the Immigration Ordinance was lawful; the impermissible residence and movement restrictions were void and of no legal effect but did not invalidate the recognizance as a whole or the underlying decision.
Cited by 2 cases · Cites 3 cases
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CACV9/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 9 OF 2006 (ON APPEAL FROM HCAL NO. 60 OF 2005) ______________________ BETWEEN
______________________ Before: Hon Ma CJHC, Stock & Yeung JJA in Court Date of Hearing: 3 May 2006 Date of Handing Down Judgment: 19 May 2006 ______________ J U D G M E N T ______________ Hon Ma CJHC : Introduction 1.Two interesting questions arise in the present appeal both in relation to recognizances that may be required to be provided under section 36(1) of the Immigration Ordinance, Cap.115 (“the Ordinance”). The first question goes into the jurisdiction on the part of an immigration officer to require recognizances to be given, the second deals with the issue of the validity of recognizances that impose invalid conditions. 2.The relevant facts have been set out in the judgment of Chu J handed down on 25 November 2005 and are essentially these : -
The present proceedings 3.On 16 June 2005, the Applicant applied for leave to apply for judicial review of the Director’s decision to require him to enter into a recognizance. The relevant decisions impugned were those dated 28 September 2004 and 23 October 2004 : see paragraphs 2(8) and (11) above. 4.As summarized by Chu J, the Applicant’s challenge was two-fold : -
5.The Applicant sought declarations to the effect that both the decision to require the Applicant to enter into a recognizance in the first place and that requiring him to be subject to the impermissible conditions were unlawful. 6.Chu J, after analyzing the legal effect of sections 19, 32 and 36 of the Ordinance, held that the decision to require the Applicant to enter into a recognizance was lawful. As regards the imposition of the impermissible conditions, the Judge accepted that they could not be lawfully imposed and accordingly made a declaration that these conditions were unlawful and of no effect. The appeal 7.The Applicant now appeals the decision of Chu J and seeks effectively a declaration that the decision made by the Director to require the Applicant to enter into a recognizance in the first place was unlawful. The same two grounds relied on before Chu J were advanced before us. The issues in the appeal can therefore be condensed into the following questions : -
8.Mr Philip Dykes SC, who appeared for the Applicant both in the Court below and before us, submitted, first, that the Director had no grounds to require the Applicant to enter into a recognizance and secondly, even if he did, the imposition of the impermissible conditions rendered the whole recognizance (and therefore the decision to require a recognizance) invalid. 9.Before dealing with these questions, I think it important first to set out the relevant statutory scheme. The statutory scheme 10.For persons entering Hong Kong, permission is required to remain here unless that person comes within any of the situations set out in section 7 of the Ordinance. Permission may be refused at the point of entry but for many visitors, permission will be given to enter and remain in Hong Kong although conditions of stay (usually permission to remain for a limited time and a prohibition on employment) will be imposed : c.f. section 11. It will be recalled that the Applicant was given permission to land and allowed to remain in Hong Kong (with several extensions) until late 2002 when a further request for extension was refused. 11.Where a person does not have any permission to land or remain in Hong Kong, a removal order may be made against him. Section 19 of the Ordinance states : -
In the case of the Applicant, section 19(1)(b)(ii) was relevant. 12.In some cases, it may be relatively straightforward for the Director to decide whether or not to make a removal order. In others, the position may be more difficult and the Director may need some time to conduct investigations when considering whether or not to make a removal order. The range of possible situations in which investigations may be required are so broad that they may require either comparatively little time or in some cases, a lot of time. The Applicant’s position fell within the latter : the evidence indicates that the CAT screening will be very time consuming, particularly given the guidance provided by the Court of Final Appeal in Prabakar. 13.Accordingly, the Ordinance nowhere sets out a time limit within which the Director of Immigration must complete his consideration of whether or not a removal order should be made, although he must act at all times reasonably. 14.When the Director of Immigration is considering whether or not to make a removal order, he is given a number of options in dealing with the relevant person concerned. He can, for example, do nothing and simply allow that person to remain in Hong Kong subject to conditions of stay. But he is also empowered to detain that person if the circumstances so justify. Section 32 of the Ordinance deals with the question of detention pending removal. So far as relevant to the present case, it states : -
15.Where the Director of Immigration is of the view that a person should be detained pending his consideration of whether a removal order should be ordered, section 32(2A) sets the maximum period of detention at 49 days. Of course, in exercising the powers under this provision, the Director must be of the view that detention and the period of detention are reasonable in the circumstances. This is an application of the Hardial Singh principles : - see Tan Te Lam and Others v Superintendent of Tai A Chau Detention Centre and Another [1997] AC 97, at 111; see also section 32(4A) of the Ordinance. 16.It was part of Mr Dykes’ submissions that somehow section 32(2A) effectively imposed a 49-day time limit on the Director to complete his consideration of whether a removal order should be made. And if he could not complete the exercise by that time, he could not exercise the power to detain in section 32(2A). 17.Where a person is detained or liable to be detained, the Director as an alternative to detention may require that person to enter into a recognizance : - see section 36(1) of the Ordinance. Section 36 states : -
18.Mr Dykes submitted that the effect of section 36(1) when seen together with section 32(2A) was that even where detention or the requirement of entering into a recognizance was reasonable, nevertheless the maximum period for either measure was 49 days. In the case of a physical detention, this is of course stipulated in section 32(2A) and there is no controversy as to that. As regards the duration of a recognizance, Mr Dykes’ point really boiled down to this : since the imposition of a recognizance was alternative to a detention (and indeed, a recognizance could not be required unless a detention was in existence or justified), so there must be an exact match between recognizances and detentions, particularly as regards the duration of either. The express reference made to sections 27, 32 and 34 when considering recognizances under section 36(1)) meant that the relevant time limits of detentions also applied to recognizances. This, he submitted, was a process of necessary implication in the construction of these provisions. 19.I am unable to agree with the Applicant’s submissions here. I agree with Chu J’s analysis and would only make some additional points : -
20.I now deal with the two questions raised in the present appeal. Did the Director of Immigration have any grounds under section 36(1) to require the Applicant to enter into a recognizance? 21.In my view, the answer is Yes. 22.The Applicant’s position was that the Director did not have any grounds to require him to enter into a recognizance. According to Mr Dykes, section 36(1)(a) was not engaged since at the relevant time, the Applicant was not in detention (as stated above, although a detention order had been made on 28 September 2004, this was never carried out : see paragraph 2(9) above). This was of course correct. As for as section 36(1)(b), he submitted that the Applicant was not a person who was “liable to be detained”. 23.Mr John Bleach SC (for the Respondent) said that the Director did not seek to rely on section 36(1)(a) but submitted that the Applicant was a person who was “liable to be detained” for the purpose of section 36(1)(b). This subsection therefore became the focus of the arguments. 24.Mr Dykes advanced two separate arguments to support the Applicant’s case : -
25.I am unpersuaded by these arguments : -
26.I now move on to the second question. If he did, did the existence of the impermissible conditions render the Director's decision unlawful? 27.It is common ground that the impermissible conditions were conditions that could not be lawfully imposed on the Applicant as part of the recognizance he entered into. Chu J reasoned that by the reference in section 36(1) of the Ordinance to the Director being empowered only to require a person to enter into a recognizance “in the prescribed form”, the limits of the conditions that could be imposed on a person were those stipulated in the prescribed form. Any other conditions could not be lawfully imposed. Form 8, which is the prescribed statutory form, makes a reference only to the amount and number of sureties, and reporting requirements. With respect to the Judge, her reasoning is impeccable and cannot be faulted. 28.Chu J was prepared, however, only to make a declaration that the impermissible conditions were of no legal effect. The Applicant was not content with this and sought a declaration that by reason of the existence of the impermissible conditions, the whole of the Director’s decision to require him to enter into a recognizance in the first place was unlawful. This was the order that the Applicant sought in his Notice of Appeal. 29.Reliance was placed by Mr Dykes on section 37(1) of Interpretation and General Clauses Ordinance, Cap.1 which states : -
30.The Judge having held that the impermissible conditions were more than just deviations, it therefore followed that the recognizance as a whole was rendered invalid. 31.I doubt this to be the effect of section 37 at all and Mr Dykes seemed to have accepted the proposition that where there were deviations in a statutory form that were substantial, this did not necessarily mean that the whole document was automatically invalidated. Much depends on the context of course. In a sense, the document was invalid inasmuch as the impermissible conditions were imposed but the effect was simply that the document took effect without those conditions. As Mr Bleach submitted, there is no reason why the existence of invalid conditions should render the valid conditions also void. There is no practical or commonsense reason for this. Still less is there any justification to impugn as a whole the decision of the Director to require the Applicant to enter into a recognizance in the first place. I agree with the Judge’s views contained in the following passage : -
32.In the course of his submissions, Mr Dykes also made reference to the penal sanctions that could be imposed on a person by a magistrate where he failed to comply with an order to enter into a recognizance : - see sections 36(3) and (4) of the Ordinance. In my view, while it is one thing to say that no criminal liability will attach where a magistrate orders a person to enter into a recognizance with impermissible conditions, it is quite another to conclude that the whole recognizance is void, not merely the impermissible conditions or that the effect of these conditions is to render the decision to require a recognizance to be entered into, wholly invalid. 33.In my view, this second question is to be answered No. Costs 34.For the above reasons, the appeal should be dismissed. I would also make an order nisi that the costs of the appeal should be to the Respondent, such costs to be taxed if not agreed. Hon Stock JA : 35.I agree with the judgment of the Chief Judge. The argument that the power to impose a recognizance may last only so long as the maximum period prescribed for detention, is contrary to any purposive construction of the relevant provisions. It would drive a coach and horses through the scheme. All that a person seeking asylum – say, for present purposes, a bogus claim – would have to do is to present a highly complicated story to the authorities here, involving a number of different countries and a host of suggested witnesses, of whom inquiries might have to be addressed, and the scheme would be defeated. The effect of Mr Dykes’ argument is that for practical purposes it would impose upon the Director a need to complete his inquiries and make a decision within 49 days; for once he is disempowered even to require a recognizance, he has no control over the applicant’s movements whatsoever. But a decision in that time may be impossible and contrary to the claimant’s interests; and we cannot read such a requirement into the scheme. If that had been intended the legislature would have said so. And if at the outset of a particular exercise relating to a particular claimant for refugee status it is apparent that the inquiries are to take longer than 49 days, especially if they are to be fair to the claimant, what then? According to Mr Dykes’ argument, the Director should not in such circumstances detain, let alone seek a recognizance, because the detention would be for a purpose outwith that authorized. But what if the Director following this line of thought, then releases the claimant only to find two days later that there is irrefutable evidence that the claim is bogus but the claimant has melted into the population and cannot be found: the result is a power of control rendered nugatory on the basis of a wrong estimate of the likely length of the inquiry. None of this makes practical sense and cannot have been intended. The power to order a recognizance is not, as was argued, a power auxiliary to detention. It is simply one course amongst others that can be taken. Hon Yeung JA : 36.I agree with the judgment of the Chief Judge and Stock JA. I have nothing to add.
Mr Philip Dykes SC instructed by Messrs Barnes & Daly for the Applicant Mr John Bleach SC instructed by the Department of Justice for the Respondent |
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