Ooi Yen Khim v. The Immigration Tribunal and Another

HCAL 133/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 133 OF 2006

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Before: Hon Reyes J in Court

Date of Hearing: 6 March 2008

Date of Judgment: 6 March 2008

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J U D G M E N T

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INTRODUCTION

1.Ms. Ooi entered Hong Kong on a Malaysian passport in March 2003.  She was permitted to stay for 90 days.  While here during that period, she married Mr. Ng, a Hong Kong permanent resident. She gave birth to a child by Mr. Ng in November 2003.  In January 2004 Ms. Ooi’s application to remain in Hong Kong as a dependent of her husband was approved, subject to a limit of stay of one year.  A Hong Kong Identity Card was issued to her.

2.In June 2004 Ms. Ooi was arrested on suspicion of possessing and using a forged Malaysian passport, that is, the very passport which she had used to enter Hong Kong in March 2003.  The Immigration Department alleged that Ms. Ooi was in actuality Ms. Zhu Fang, a PRC national.  Ms. Ooi’s Malaysian passport and Hong Kong Identity Card were confiscated. 

3.Ms. Ooi was interviewed several times under caution, but opted to remain silent on all occasions.  She was released on bail shortly after her arrest and in November 2004 was unconditionally released from bail.

4.In August 2006 the Director of Immigration made a Removal Order against Ms. Ooi, requiring her to leave Hong Kong.  Ms. Ooi appealed to the Immigration Tribunal against the Removal Order.  In her Notice of Appeal, Ms. Ooi submitted that “the grounds of removal as stated in the Removal Order [were] not supported by concrete evidence”.  In September 2006 Ms. Ooi was told that the Tribunal had dismissed her appeal without a hearing.  The reason given was that the Tribunal was “satisfied that the facts or matters on which [Ms. Ooi was] seeking to rely [were] not matters which would entitle [Ms. Ooi] to succeed in the appeal”.

5.By this application, Ms. Ooi seeks judicial review of the Tribunal’s rejection of her appeal.  She says that the Tribunal’s decision was Wednesbury unreasonable, procedurally unfair, and outside of the Tribunal’s jurisdiction under the Immigration Ordinance (Cap.115) (IO).

II.      BACKGROUND

6.The IO provides as follows:-

Section 53A(1):-

“A person against whom a removal order has been made by the Director of Immigration ... may appeal to the Tribunal against the removal Order on the ground that on the facts of his case:-

(aa)     he enjoys the right of abode in Hong Kong; or

(ab) he has the right to land in Hong Kong by virtue of section 2AAA; or

(b) he had at the date when the removal order was made the permission of the Director of Immigration to remain in Hong Kong.”

Section 53C:-

“Where the Tribunal, upon an examination of the written grounds of appeal on which a person appealing under section 53A seeks to rely, is satisfied that the facts or matters on which the appellant is seeking to rely:-

(a) would not entitle the appellant to succeed in the appeal; or

(b) ...

it may dismiss the appeal without a hearing and in any such case it shall cause written notice of such dismissal to be given to the appellant and to the Director of Immigration.”

Section 53D:-

“(1)     On an appeal under section 53A against a removal order:-

(a) where the Tribunal determines that on the facts of the case as it finds them the appellant:-

(ia) does not enjoy the right of abode in Hong Kong; and

(ib) does not have the right to land under section 2AAA; and

(ii) does not, disregarding the effect of the removal order under section 19(4), have the permission of the Director of Immigration to remain in Hong Kong,

it shall dismiss the appeal; and

(b) in any other case, subject to subsection (3), it shall allow the appeal and rescind the removal order.”

7.In coming to its decision, the Tribunal had before it the following documents:-

(1) the Removal Order;

(2) the notice of the Removal Order provided to Ms. Ooi;

(3) a document entitled “Summary of Facts and Reasons for Removal” (the Summary); and, 

(4) Ms. Ooi’s Notice and Grounds of Appeal.

8.The Summary (with paragraph numbers in square brackets inserted for easier reference) stated the following:-

“2. REASONS FOR REMOVAL

[1] The Director has reasons to believe that Madam ZHU entered the Hong Kong Special Administrative Region on the strength of a Malaysian Passport No. A11785035 of which she is not the rightful holder, and that she is not of the identity of the passport holder as shown on the said passport.  Permissions granted to Madam ZHU to land and subsequently to remain in the Hong Kong Special Administrative Region are therefore rendered null and void.  Madam ZHU is deemed to have landed in the Hong Kong Special Administrative Region unlawfully.  After investigation, it is satisfied that she has no legal claim of any right of to land or remain in the Hong Kong Special Administrative Region.

3. SUMMARY OF FACTS

[2] Madam ZHU arrived in the Hong Kong Special Administrative Region from the Mainland of China on 14 March 2003 on the strength of a Malaysian passport No. A11785035 in the identity of OOI Yen Khim born on 4 December 1977 and was permitted to remain as a visitor for ninety days from date of entry.  She married a Hong Kong permanent resident, Mr. NG Fung Lung Francis on 9 June 2003.  On 26 June 2003, she applied for change of status to join her Hong Kong permanent resident husband as his dependant for residence. Her application was subsequently approved and she was permitted to remain as a dependant of her husband until 28 January 2005.

[3] According to information, Madam ZHU is indeed a Mainland resident and had travelled to the Hong Kong Special Administrative Region in 2002 on the strength of a People’s Republic of China passport No. G02729160 in the identity of ZHU Fang born on 10 May 1979 in Fujian.  She had then submitted and was approved an extension of stay application on 26 April 2002 under the identity of ZHU Fang.

[4] Madam ZHU was apprehended on 7 June 2004 by the Immigration Department. Subsequent information received from the local Malaysian Consulate-General revealed that she was not the applicant of the said Malaysian passport No. A11785035 as stated in the relevant application form.  After being interviewed by the staff of the local Malaysian Consulate-General, it was not satisfied that she was a Malaysian and the said Malaysian passport was believed to be unlawfully detained.

[5] Verification of Madam ZHU’s identity with the Mainland authorities was conducted.  According to the information from the Mainland authorities, it is believed that Madam ZHU is Mainland resident ZHU Fang born on 10 May 1979 in the Mainland of China.

[6] As Madam ZHU is not the rightful holder of the said Malaysian passport with which she had used to enter the Hong Kong Special Administrative Region, permission to land granted to her on 14 March 2003 together with subsequent approval for her change of status (extension of stay) on the basis of the said Malaysian passport are to be vitiated and that her stay in the Hong Kong Special Administrative Region is at all material times unlawful.  She is therefore liable to be removed on the basis that she does not have the Director’s permission to land or remain in the Hong Kong Special Administrative Region.

[7] On 25 April 2005, Madam Zhu’s legal representative was informed of the Director’s intention to vitiate her permission to land and stay. She was invited to give her representations on the matter within twenty one days for the Director’s consideration before making the decision.  However, Madam ZHU or her legal representatives had not submitted any representation on the matter.

[8] After consideration of all available information and the relevant circumstances of the case, it is decided to declare that previous permission to land together with subsequent approval for change of status (extension of stay) granted to Madam ZHU on the basis that she was the rightful holder of the said Malaysian passport No. A11785035 are vitiated by deception given that the said Malaysian passport was unlawfully obtained by Madam ZHU of which she is not the rightful holder.  Accordingly, all such permission to land and approval of her change of status with extension of stay are null and void and that her stay in the Hong Kong Special Administrative Region at all material time is unlawful without the Director’s permission.  Madam ZHU’s legal representatives were informed by letter on 26 September 2005 of the vitiation decision and that in consequence thereof, Madam ZHU is [liable] to be removed from the Hong Kong Special Administrative Region.”

9.Ms. Ooi’s Notice and Grounds of Appeal essentially denied the Director’s allegations, stating that the “grounds of removal ... are not supported by concrete evidence”.

10.Since Ms. Ooi’s judicial review application, the Director has provided additional information in support of the Removal Order.  In particular, the Director has adduced affirmation evidence to the following effect:-

(1)	A comparison of passport photos of Ms. Zhu Fang and Ms. Ooi by an Immigration Officer in the Special Investigation Section of the Immigration Department suggests that the two are the same person.
(2)	The laminate of the bio-data page and a chip embedded in the present Ms. Ooi’s passport have been tampered with.
(3)	The Malaysian Consulate-General had provided the Immigration Department with the passport application record of the real Ms. Ooi.  The photo in the application record is said not to match that in the present Ms. Ooi’s passport.
(4)	Ms. Ooi was interviewed by the Malaysian Consulate-General.  On the basis of the interview, it concluded that Ms. Ooi was not a Malaysian and had procured her passport unlawfully.  Arrangements had been made for the Consulate-General to proffer a witness to testify in Hong Kong court proceedings against Ms. Ooi, but such witness never materialised.
(5)	The Mainland’s Bureau of Exit-Entry Administration (BEEA) had provided the Immigration Department with a copy of the application documents for the real Ms. Ooi’s Malaysian passport.  In the BEEA’s view those show that the present Ms. Ooi is a different person.
(6)	The BEEA had compared a photo of the present Ms. Ooi taken by the Immigration Department with pictures of Ms. Zhu Fang in the BEEA’s files.  In the BEEA’s view the comparison shows that Ms. Zhu and Ms. Ooi are the same.

11.The additional details just summarised in the preceding paragraph had not been placed before the Tribunal.

III.     DISCUSSION

A.      Ms. Ooi’s case

12.Mr. James Collins (appearing for Ms. Ooi) accepts that the sole basis for Ms. Ooi’s appeal against the removal order is IO s.53A(1)(b).  He also accepts that, as far as IO s.53D(1) is concerned, Ms. Ooi neither enjoys the right of abode nor the right to land in Hong Kong.

13.But Mr. Collins stresses that, before it could dismiss her appeal, the Tribunal had to satisfy itself that (ignoring the Removal Order) Ms. Ooi did not have the permission of the Director to remain in Hong Kong.  Acting reasonably, the Tribunal (Mr. Collins argues) could not have been satisfied of this. 

14.On the material before it, the only basis (Mr. Collins says) upon which the Tribunal could have come to any conclusion would have been the Summary.  But (Mr. Collins comments) the Summary consists of bare assertion with references to information received from Malaysian and Mainland authorities.  The primary evidence upon which those assertions were based were not exhibited to the Summary and were never produced to Ms. Ooi or her solicitors.

15.As a result, according to Mr. Collins, there was no cogent material upon which the Tribunal could have rejected Ms. Ooi’s appeal. 

16.Further, Mr. Collins contends that Ms. Ooi was denied the chance to deal adequately with the allegations levied against her by the Director.  Ms. Ooi could not herself investigate or test the evidence upon which the Director was inviting the Tribunal to come to a decision.

17.The foregoing occurred (Mr. Collins says) despite the fact that the burden of proof rested upon the Director and, the case involving the liberty of a person, such burden had to be discharged on a higher degree than a mere balance of probability.

18.Mr. Collins criticises the Tribunal for giving inadequate reasons.  Even if the Tribunal was not required to do more than give outline reasons, at the very least it had to (but did not) explain why it came to the decision which it did on the scant material before it.

19.Accordingly, Mr. Collins’ submissions may be summarised as follows:-

(1)	To the extent that it was merely provided with the Summary, the Tribunal acted unreasonably in coming to any conclusion on that slender basis.  It should at least have requested and examined the underlying documents which formed the basis of the Summary.
(2)	To the extent that Ms. Ooi was not given access to the underlying material upon which the Summary was based, she was denied natural justice.  She should at least have been provided with that material to enable her to make such submissions and observations as she thought appropriate.
(3)	To the extent that it relied solely upon the Director’s views on the inferences to be drawn from material referred to in the Summary, the Tribunal acted ultra vires.  It had a duty to consider the underlying material and form its own views as to the cogency or otherwise of such evidence.  It also had a duty to articulate reasons for its formulated views at least in outline.  By passively accepting the Director’s assertions in the Summary without looking at any underlying material or giving any adequate reasons justifying such a course, the Tribunal in effect misapplied the burden of proof. It in effect placed such onus on Ms. Ooi rather than on the Director.

B.      Evaluation of Ms. Ooi’s case

20.In my view, Mr. Collins is rightly critical of the procedure followed by the Tribunal.

21.The crux of the case against Ms. Ooi is that she entered Hong Kong under a false Malaysian passport.  If that is right, Ms. Ooi obtained leave to stay here by fraud.  Any leave she obtained would have been vitiated by such fraud and she accordingly has no right to remain here.

22.But the Summary relies on bare assertion in making out its case that Ms. Ooi’s Malaysian passport was a forged one and that Ms. Ooi is really none other than Ms. Zhu. 

23.Let me be specific by examining the Summary more closely:-

(1)	Summary §[1] states the Director’s reasons for making the Removal Order.
(2)	Summary §[2] states background facts relating to Ms. Ooi’s entry into Hong Kong.  It refers to Ms. Ooi as Ms. Zhu and thereby implicitly asserts that Ms. Ooi is in fact Ms. Zhu.
(3)	Summary §[3] states that “[a]ccording to information” Ms. Zhu had travelled to Hong Kong in 2002.  The nature of the “information” relied upon is nowhere identified in the Summary or among the papers put before the Tribunal.
(4)	Summary §[4] refers to “[s]ubsequent information received from the local Malaysian Consulate” leading to the arrest of Ms. Ooi in Hong Kong.  But the nature of the “information” is nowhere identified in the Summary or among the papers put before the Tribunal.
(5)	Summary §[4] also refers to the Malaysian Consulate-General not being satisfied, following an interview with Ms. Ooi, that Ms. Ooi was a Malaysian.  But no particulars are given as to the precise basis (for example, Ms. Ooi’s lack of knowledge of (say) things Malaysian or something else) for the Consulate’s view.
(6)	Summary §[4] mentions the Consulate-General’s belief that Ms. Ooi’s Malaysian passport was “unlawfully obtained”.  But it does not explain the basis for such belief.
(7)	Summary §[5] refers to “information from the Mainland authorities” supporting the conclusion that Ms. Ooi and Ms. Zhu are the same person.  But the nature of that “information” is not identified.
(8)	Summary §[6] states the Director’s conclusion that Ms. Ooi is not the rightful holder of the Malaysian passport used at the time of her entry.  That conclusion depends on an acceptance of the “information” referred to (but never adequately identified) in previous paragraphs.
(9)	Summary §[7] states that Ms. Ooi was given a chance to make representations but did not do so.
(10)	Summary §[8] again recites the Director’s conclusion and the making of a Removal Order in consequence.  It does not particularise evidence.

24.Since the Summary only alludes to (but neither exhibits nor particularises) the “information” upon which the Director drew his conclusions, there was no material before the Tribunal upon which it could have evaluated such conclusions.  The Tribunal could not have decided one way or the other whether the Director was right.

25.To have determined the matter in favour of the Director on the Summary alone was tantamount to rubber-stamping the Director’s assertion that the underlying evidence supported his conclusion.  There could have been no independent assessment by the Tribunal of the underlying evidence.  That is contrary to the requirement in s.53D(1) that the Tribunal make its own assessment of the facts in order to determine whether an appellant does or does not have permission to remain in Hong Kong.  See Li Fu Shan v. Director of Immigration [2002] 4 HKC 284 (Hartmann J) (at §59).

26.Ms. Ooi was similarly not provided with the evidence underlying the Director’s conclusions in the Summary.  All she had was the Summary. 

27.She was not in a position to comment on the unparticularised “information” mentioned in the Summary.  She could not (say) make submissions on whether such evidence was hearsay, whether any weight such be put on the material, or simply whether such material even taken at face value supported any conclusion being asserted.

28.It is true that she made no representations to the Immigration Department.  But I am unable to infer much from her silence.  This is because I doubt whether, the underlying “information” not having been provided to her, she was in a position to make any meaningful representations.

29.The denial of the underlying material was in my view procedurally wrong.  It was unfair and so a denial of natural justice.

30.That the Tribunal decided to dismiss Ms. Ooi’s appeal on the basis of the Summary meant in effect that it accepted the Director’s bare assertion.  No reasons (even outline reasons) are given to suggest otherwise.  All that is said is that Ms. Ooi’s Notice and Grounds of Appeal would not entitle her to succeed.

31.That, in my view, was equivalent to placing the burden of proof on Ms. Ooi.  In practical terms the Tribunal required the Director to do no more than assert, while it presumably expected Ms. Ooi to rebut the Director’s conclusions.

32.That seems to me to have been procedurally wrong.  It is contrary to principle.  Where the Director has originally granted permission to stay in Hong Kong on the basis of a document initially accepted as lawful, the burden is on the Director to show that the document was in fact false.  See Li Fu Shan (at §§70-71), citing Re Chen Huan Qiong [1994] 2 HKLR 394 (Kaplan J) (at 397).

33.Mr. Collins observes that the Tribunal’s reasons simply track the wording of IO s.53C.  It may conceivably be that, where self-evidently the grounds of appeal on which a party relies are woefully inadequate, such a terse statement of reasons may suffice.  But that is not the situation here.  There was no adequate substantive material before the Tribunal on which it could evaluate the rights or wrongs of the Director’s decision to remove Ms. Ooi.  In such case, merely repeating the wording of s.53C cannot have been enough to discharge the Tribunal’s duty to outline its reasons. 

34.Mr. Jin Pao (appearing for the Director) argues that there is ample evidence to support the Tribunal’s conclusion.  For this proposition, he relies heavily on the additional details adduced through the affirmation evidence filed by the Director in this judicial review.

35.But the additional details were not before the Tribunal.  The Tribunal had no opportunity to evaluate the same, much less come to any view on their cogency for or against the Removal Order.

36.Mr. Pao criticises Ms. Ooi for raising a “highly vague and non-specific ground of appeal” when she complained of the Removal Order not being “supported by concrete evidence”.

37.But, reading Ms. Ooi’s Notice and Grounds of Appeal as a whole, it would have been apparent that she was denying the entirety of the Director’s adverse conclusions.  Her ground of appeal was complaining about the fact that she had not been provided with the underlying evidence. 

38.In principle, such underlying material should have been furnished to her and the Tribunal: to her, for any comment; to the Tribunal, to enable it to form an independent conclusion.

39.Lastly, Mr. Pao observes that Ms. Ooi has so far not mounted any positive case.  Mr. Pao suggests that, accordingly, I should not set aside the Tribunal’s dismissal of Ms. Ooi’s appeal.  I ought instead (Mr. Pao says) uphold the rejection in the exercise of my discretion.  This is because (Mr. Pao submits) the additional details now provided are so overwhelmingly against Ms. Ooi that any Tribunal can only conclude that the Removal Order was justified.

40.I am not persuaded.

41.It is for the Tribunal to form its own view. I am not in position to substitute my opinion for that of the Tribunal. 

42.Let me given an example to illustrate why. 

43.Some of the case against Ms. Ooi depends on a comparison among photos.  One must contrast photos of the Ms. Ooi who applied for the Malaysian passport with photos of the present Ms. Ooi.   One must likewise consider contemporary photos of the present Ms. Ooi and photos of Ms. Zhu.

44.The photos would have been taken over different times.  People change in appearance over time.  One would inevitably need guidance, in the form of submissions as to what facial features are common or different in the photos, in order to form any opinion.  That exercise is not straightforward.  It may be time-consuming.  It is not an appropriate investigation to conduct in the context of a judicial review.

IV.     CONCLUSION

45.The Tribunal’s decision against Ms. Ooi’s appeal is quashed.  Ms. Ooi’s appeal is to be remitted to the Tribunal for re-consideration.

46.The parties agree that it would be premature in these proceedings to quash the Removal Order.  It is for the Tribunal to decide whether or not the Removal Order is justified.

47.I shall hear the parties on costs and any consequential orders.

Mr. James Collins, instructed by Messrs Henry Wan & Yeung, for the Applicant

1^st Respondent in person - absent

Mr. Jin Pao and Mr. Casper Chu, SGC, instructed by the Department of Justice, for the 2^nd Respondent