Wong Un Ying and Another v. Director of Immigration and Another

HCAL136/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 136 OF 2009

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Before : Hon Poon J in Court

Date of Hearing : 19 July 2010

Date of Judgment : 30 July 2010

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J U D G M E N T

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A.  Application

1.This is the applicants’ application for judicial review against :

(1) the decision of the Director of Immigration dated 1 September 2009 and served on them on 3 September 2009, making a removal order against them (“the 1^st Decision”);

(2) the decision of the Immigration Tribunal dated 18 September 2009, dismissing their appeal against the 1^st Decision (“the 2^nd Decision”). 

They applied for a certiorari to quash the 2^nd Decision and a declaration that they are entitled to remain in Hong Kong. 

2.The background circumstances leading to the present proceedings may be summarized as follows. 

B.  Background circumstances

3.The applicants are mother and daughter.  

4.On 2 June 1991, the 1^st applicant came to Hong Kong by way of an One Way Permit issued by the Bureau of Exit and Entry Administration of the People’s Republic of China (“BEEA”) dated 13 April 1991 in Anhui, which bore the name of Tso Kuk Wan.  The 1^st applicant was then 28 years old.  

5.On 5 June 1991, the 2^nd applicant came to Hong Kong by way of another One Way Permit issued by BEEA dated 13 April 1991 in Anhui, which bore the name Wong Ching.  She was then 4 years old.  

6.On 19 June 1991, the 1^st applicant applied for and obtained a Hong Kong identity card under the name of Tso Kuk Wan.  On 18 November 1991, she applied on behalf of the 2^nd applicant for a Hong Kong identity card, which was duly issued on the same date.  A juvenile Hong Kong identity card was issued to the 2^nd applicant on 8 November 1997. 

7.By a deed poll dated 8 May 1992, the 1^st applicant changed her name from Tso Kuk Wan to Wong Un Ying.  On 30 May 1992, she made a similar application to change her name in her identity card, which was approved. 

8.On 22 May 1998, the applicants applied for verification of eligibility for permanent identity card, which were later approved.  Permanent identity cards were issued to them on 17 July 1998. 

9.In July 2002, the Director received information via the Secretary for Security that two different pairs of mother and daughter obtained two different sets of One Way Permits issued separately in Jiangxi and Anhui under the same identities of Tso Kuk Wan and Wong Ching as mother and daughter; that both sets of mother and daughter had already come to and settled in Hong Kong; and that the set of One Way Permits issued in Anhui were obtained by fraudulent means.  The Director then carried out investigation.  On 22 July 2003, officers from the Immigration Department visited the applicants’ residential address.  The 1^st applicant’s husband, also the 2^nd applicant’s father, 鄭蔭雄who came under an Exit-Entry Permit issued by BEEA, was there as well. 

10.Under caution, the 1^st applicant admitted that her genuine identity was Wong Un Ying, that she was born in Fujian, that Tso Kuk Wan was in fact the wife of her elder brother Wong Kam Ming; and that she applied for the One Way Permits for herself and the 2^nd applicant by falsely pretending to be her elder brother’s wife and daughter in Anhui.  After she was brought back to Kai Tak Government Building for further investigation, the 2^nd applicant made a cautioned statement, which contained similar and further admissions.  The 2^nd applicant also admitted in an interview that鄭蔭雄was her father.  The applicants were then arrested under section 56(1A)(b) of the Immigration Ordinance, Cap. 115 and released on bail. 

11.On 23 July 2003, an interview was conducted with Wong Kam Ming.  Under caution, he made admissions similar to those of the 2^nd applicant. 

12.The Director sought assistance from BEEA.  By a letter dated 13 October 2003, BEEA advised the Director that the 1^st applicant’s real identity is黃鶯英, a native of Fujian Province; that the applicants falsely pretended to be Tso Kuk Wan and Wong Ching of Jiangxi Province and falsely represented their relationship with Wong Kam Ming in obtaining their One Way Permits for settlement in Hong Kong; and that their One Way Permits would be cancelled.  BEEA requested the Director to repatriate the applicants back to the Mainland.  They had also informed the relevant authority of Fujian not to approve the application by鄭蔭雄for settling in Hong Kong for family union with the applicants.  

13.Criminal prosecution against the 1^st applicant and Wong Kam Ming then ensued.  The 2^nd applicant was not prosecuted because of her tender age at the time of the offences.  On 28 September 2004, the 1^st applicant and Wong Kam Ming were acquitted of all the offences charged after the magistrate ruled that the cautioned statements made by them were inadmissible.  Both the applicants had since been released on bail under the Immigration Ordinance pending removal. 

14.By letters dated 19 November 2004, the Director invited the applicants to make representations on an intended invalidation of their Hong Kong identity cards, which they did through their solicitors.  Having considered their representations, the Director maintained the view that the applicants’ One Way Permits were obtained unlawfully.  Thus the permissions to stay granted to Hong Kong were null and void.  The acquittals in the criminal case did not render their previous stay in Hong Kong legal.  By letter dated 18 February 2005, the Director informed the applicants’ solicitors that all permissions granted to the applicants to stay were vitiated and their Hong Kong identity cards would accordingly be invalidated. 

15.By further letters dated 1 March 2005 issued by the Director in the capacity as the Commissioner of Registration, the applicants were informed that their Hong Kong identity cards had been declared invalid under section 3D of the Registration of Persons Ordinance, Cap. 177.  The applicants then appealed to the Registration of Persons Tribunal, which was refused on 31 October 2007. 

16.On 22 January 2008, the applicants applied for judicial review in HCAL6/2008.  Their leave application with notice to the Secretary for Justice representing the Director was heard before Lam J on 1 February 2008 (“the Hearing”).  After hearing the parties, Lam J dismissed their application for leave. 

17.It is the applicants’ case that what transpired at the Hearing gave rise to a legitimate expectation that the Director would consider their humanitarian and compassionate circumstances in considering if removal orders would be issued against them.  I will come back to this point in greater detail below. 

18.In March 2008, the applicants’ legal advisers wrote to the Director, submitting :

(1) the applicants are law-abiding residents earning their own living in Hong Kong;

(2) the 2^nd applicant has been residing and receiving her education in Hong Kong since she was four, and hence has strong connections here;

(3) Lam J had expressed sympathy towards them at the Hearing;

(4) taking into account the humanitarian and compassionate circumstances, it is just and equitable to grant them permissions to stay. 

19.The Director did not immediately give a substantive reply.  Since then up to August 2009, the applicants’ solicitors made various enquiries of progress, to which the Director issued interim replies to the effect that the applicants’ case was still under progress.  When the applicants reported for bail on different occasions in the meantime, the officers of the Immigration Department asked them to consider returning to the Mainland voluntarily.  The applicants refused. 

20.On 7 August 2009, the applicants lodged a complaint to the Ombudsman alleging procrastination on the part of the Director in processing their case for not issuing any removal order against them on humanitarian and compassionate grounds.  It is the Director’s case that he was not aware of the complaint until he received a letter from the Office of Ombudsman on 22 September 2009.  After investigation, the Ombudsman by letter dated 2 December 2009 informed the applicants that the Director had been acting reasonably without procrastination in processing their case. 

21.The Director issued two removal orders dated 1 September 2009 against the applicants.  The removal orders were served on them on 3 September 2009.  The applicants then appealed to the Tribunal, which was as noted, dismissed on 18 September 2009. 

C.  Grounds of judicial review

22.The applicants based their application for judicial review on four grounds.  Logically presented, they are :

(1) The applicants are entitled to a legitimate expectation that their representations based on their humanitarian and compassionate circumstances would be considered by the Director (Ground 2).  

(2) The Director[1] acted irrationally in failing to consider the representations of the applicants on their humanitarian and compassionate circumstances in making the 1^st Decision (Ground 1). 

(3) The Director had failed to act in good faith by not[2] taking into account the humanitarian and compassionate circumstances of the applicants in the process of making the 1^st Decision (Ground 4). 

(4) The applicants’ compassionate circumstances ought to have moved a decision-maker to permit them to stay (Ground 3). 

(5) The Tribunal had failed to give any reason at all on the representations and the personal circumstances of the applicants in reaching the conclusion to issue the removal orders against them by the 2^nd Decision (Ground 5). 

I shall consider them in turn. 

D.  Discussion

D.1.   Ground 2 – legitimate expectation

23.The main thrust of the applicants’ contentions is that the Director had in breach of the legitimate expectation failed to take into account their humanitarian and compassionate circumstances.  This is of course premised on the assumption that what took place at the Hearing did give rise to a legitimate expectation that the Director would consider their representations based on those circumstances. 

24.In Ng Siu Tung & Others v Director of Immigration (2002) 5 HKCFAR , the Court of Final Appeal, after surveying the recent authorities, authoritatively set out the principles on legitimate expectation.  In brief, these principles are :

(1) The doctrine of substantive legitimate expectation (the doctrine) forms part of the administrative law of Hong Kong.  Under this doctrine, a failure to honour a legitimate expectation of a substantive outcome or benefit may, in the absence of any overriding reason of law or policy excluding its operation, result in such unfairness to individuals as to amount to an abuse of power justifying intervention by the court. 

(2) The doctrine comprises four aspects :

(a)  the legitimate expectation arose from a promise or representation, the expectation being that the promise or representation would be honoured, should be properly taken into account in the decision-making process so long as to do so fell within the power, statutory or otherwise, of the decision-maker;

(b) in the absence of reasons recognised by law for not giving effect to legitimate expectations, effect should be given to them, and if effect was not given, the decision-maker should express its reasons so that they might be tested by a court in the event that the decision was challenged;

(c) even if the decision involved the making of a political choice by reference to policy considerations, the decision-maker must make the choice in the light of the legitimate expectation of the parties, the failing of which would usually result in the decision being vitiated by reason of failure to take account of a relevant consideration and thereby constituting an abuse of power; and

(d) it is only in an exceptional case that the court would be satisfied that the failure to take account of a relevant consideration had not affected the decision.  But once the court is satisfied that this is the case, the decision would not be quashed. 

(3) To be legitimate, an expectation must be reasonable in the light of the official conduct which is said to have given rise to the expectation.  This depends on the conduct of the relevant public authority and what it has committed itself to, as well as what the applicants factually expect and what they are entitled to expect.  

(4) A legitimate expectation can be based, in appropriate circumstances, on an implied representation or even broad policy statements, provided that the representation was clear and unambiguous.  Where the representation is on Government policy, which is usually expressed in broad terms, and is reasonably susceptible of competing constructions, the correct approach is to accept the interpretation applied by the public authority, subject to the application of the Wednesbury unreasonableness test. 

25.At the Hearing, Lam J initially explored with Mr Fong, counsel representing the applicants there (also in the present proceedings), the merits of their case.  The learned judge then observed that the best point that Mr Fong could argue was the compassionate ground but that had not arisen yet as no removal orders had been made.  After outlining the applicants’ personal circumstances, his Lordship went on to say :

“It may be that the Director, having considered all the matters, including those compassionate factors, maybe [sic] also take into account of what I said just now …”

Mr Wong of the Department of Justice, representing the Director then said that he could not say how the Director would exercise his discretion. 

26.A short adjournment was then granted, after which, the following exchange between counsel and the bench took place :

“MR WONG: My Lord, I wonder if it’s more appropriate for me to address your Lordship first. 

COURT: Yes. 

MR WONG: Thank you very much for the indulgence, my Lord.  The situation really is this: of course, there is no overriding principle of law which stops the Director of Immigration from considering the issue of a removal order or otherwise even when there are pending proceedings.  So that’s not, say, a legal inhibition.  In the facts of this case, the matter is, of course, being dealt with in the normal course.  In other words, the Director would consider whether or not a removal order would be issued and, of course, in the normal course of events, one would be issued and for obvious reasons. 

On the other hand, there is nothing to prevent anybody in the situation as the applicant from making representations to the Director to put forward whatever grounds they think would be relevant including any compassionate or humanitarian grounds.  And of course, it would be entirely a matter for the Director to consider and, of course, I can’t find in any way how the director would give whatever weight, if any, to those representations to be made.  But, of course, if representations are made, the Director would consider it.  So that’s as far as I can possibly say in a situation such as this.

So that’s, I think, what I could say in respect of your Lordship’s questions. 

COURT: Yes.  But there is no prescribed mechanisms for saying how these representations ought to be made or, say …

MR WONG: What I understand is …

COURT: … what would be the channel and that sort of thing. 

MR WONG: … what normally happens is that because the applicants would have to report regularly and, in these kind of situations, people on recognisance could, at the next time they report, produce whatever representation they wish to make, usually in writing, to the Director.  So this is what I understand usually happens in a case like this.  I don’t think there’s any form to be filled in or anything like that or a special interview or anything like that. 

COURT: Yes.  Thank You. 

MR FONG: Yes, may it please the court.  I have taken instruction from my clients and they confirm that they will withdraw this judicial review application.  And, one last matter is -- in our case is we are preparing, of course, to proceed on the stage whether there are compassionate circumstances.  I just wonder whether it would be helpful.  I do believe my learned friend will readily recall what has happened today and it would be helpful if we can make the court record right – it’s whether your Lordship considers there are compassionate circumstances which the Director ought to consider.  Not a direction by the court but just a clarification from the view -- from the opinion of your Lordship.  I do believe that would be helpful at all.  

COURT: Yes. 

MR FONG: There are compassionate circumstances which the Director ought to consider in the present case. 

COURT: Yes. 

MR FONG: I’m grateful. 

COURT: When did the investigation start in this matter?  Is it 2002?

MR FONG: 2002, July 25, we were informed that we obtained the document unlawfully.  That was information from us. 

MR WONG: It’s on the Summary of Facts as July 2002. 

COURT: July 2002.  Yes, I think, in the circumstances, the application for leave is dismissed but I would like to say this for the record.  As I’ve indicated to the applicants, the next stage would not be started until this matter about the validity of the identity card has been sorted out and I commend them for coming to a wise decision in terms of the challenge to the decisions of the Director and the Registration of Persons Tribunal in that regard so that, at least, that matter can come to a rest and then we can move on to consider the next stage which is for the Director to consider.  But I must emphasise the discretion is a discretion of the Director so ultimately it is for the Director to decide how to exercise his discretion.  Of course, one of the options – and, in fact, as Mr Wong pointed out in his submissions – is that the Director will make a removal order in the normal course of events but there is still a discretion on the part of the Director to consider other options and Mr Wong has kindly indicated on behalf of the Director that the Director will be willing to consider whatever representations that the applicants might have with regard to their case and their personal circumstances in considering whether there should be good reasons to perhaps consider not to make a removal order in these circumstances.  As I said, ultimately, it is the decision of the Director and this court cannot and should not pre-empt how the Director exercises his discretion.  But what I can say is this : having read the papers, I think the Director can take into account of the fact that these two applicants have been here in Hong Kong for 17 years and, from what I’ve seen in the papers, throughout these 17 years, they have been law-abiding citizens earning their own living and, in particular, in the case of the second applicant, she has been here since she was four years old and she is now 21, spending most of her life in Hong Kong as a Hong Kong citizen, building all her roots here, having all her friends, having education here, and she has been making contributions in various areas.  Thus, it is for the Director to consider in the light of these circumstances and perhaps there will be other matters that the Director will consider relevant that it would be possible for him to exercise his discretion to consider options other than a removal order.  But I must stress, at the end of the day, it is a matter for the Director, subject to the rider that, as I’ve put to the applicants, if the Director makes a decision on that and if they feel that there are proper grounds for challenge, they can apply for judicial review at a later stage.  But hopefully, we will not come to that stage.  This is what I can usefully say at this stage.  I will leave it to Mr Fong to interpret that to the applicants.”

27.Viewed objectively and in the overall context of the proceedings then before Lam J, what Mr Wong told the court plainly constituted a clear and unambiguous representation that the Director would consider the applicants’ representations based on humanitarian and compassionate grounds, although at the same time, both Mr Wong and the court had expressly said that how the Director would exercise his discretion, after taking into account all the circumstances, was ultimately a matter for him alone. 

28.The Director now said that he had never instructed his legal representatives to give an undertaking on how the Director would exercise his discretion in considering whether to issue any removal orders against the applicants.  In my view, Mr Wong’s submission did not amount to any blanket undertaking on how he would exercise his discretion as such.  The only representation made was that the Director would consider the applicants’ humanitarian and compassionate circumstances, which was something he otherwise did not need to do legally.  But as to how the Director would evaluate and what weight he would attach to those circumstances, it remained a matter within his sole discretion.  It follows that although he had to consider those circumstances, he was not bound by them when deciding if removal orders should be issued against the applicants. 

29.The applicants succeed on Ground 2.  But that is not the end of the matter. 

D.2.   Ground 1 – failing to consider the representations

30.The Director said he had in fact considered the applicants’ representations based on humanitarian and compassionate grounds but found no exceptional circumstances that would justify the grant of permission to stay to them : see para. 42 of the affirmation of Mr John Lui Yeuk Hon, Chief Immigration Officer of the Removal Section of the Immigration Department, filed on 11 March 2010. 

31.Mr Fong submitted in effect that I should not accept what Mr Lui had said under oath.  He argued that it would not have taken the Director 19 months (between March 2008 and September 2009) to consider the applicants’ case including their representations based on humanitarian and compassionate circumstances.  And it is not a mere coincidence that the Director issued the removal orders against them almost immediately after they had complained to the Ombudsman.  The Director’s conduct showed inferentially that he had not considered those representations. 

32.I am unable to accept Mr Fong’s submissions.  It should be noted that the applicants had made no application to cross-examine Mr Lui.  His evidence remains unchallenged.  Mr Fong’s submission is based on inference.  I can draw the inference urged by counsel if and only if, as a matter of fact, the Director was aware of the complaint before he issued the removal orders.  But the undisputed and indeed undisputable evidence is that the Director only came to know about the complaint on or about 22 September 2009.  I can see no basis for the court to disbelieve Mr Lui’s evidence. 

33.Ground 1 fails. 

D.3.   Ground 4 – bad faith

34.Mr Fong repeated his submissions that it is not a mere coincidence that the Director issued the removal orders against the applicants almost immediately after they had complained to the Ombudsman.  The whole purpose of issuing the removal orders was to defeat the Ombudsman’s investigation into the applicants’ complaint.  The Director had thereby acted in bad faith. 

35.As I have said, the Director was not aware of their complaint when he issued the removal orders.  Any suggestion that he wished to defeat the Ombudsman’s investigation is entirely groundless.  No bad faith whatsoever can be attributed to the Director at all. 

36.At one point of his submissions, Mr Fong seemed to be arguing that mere delay of 19 months would be sufficient to show bad faith on the part of the Director.  I disagree.  For one thing, the applicants have not so alleged in Form 86 or the originating summons.  Mr Fong cannot now run such a case.  More importantly, while the time taken to consider the applicants’ case may have been unusually long, that alone can hardly amount to any bad faith as alleged. 

37.Ground 4 also fails.  

D.4.   Ground 3 – allowing them to stay

38.On Ground 3, the applicants sought leave to adduce further affirmations to bolster their case on humanitarian grounds.  The main allegation is that they have no connection whatsoever with the Mainland since their arrival in Hong Kong.  They will suffer prejudice if they were to be returned to the Mainland. 

39.I refuse to give leave to file the new affirmations.  In my view, the matters covered by them ought to have been included in their affirmations grounding the application.  There is no credible explanation why they only sought to adduce the new evidence now.  Further, the allegation that they do not have any connection with the Mainland is inconsistent with the 1^st applicant’s letter to the court dated 2 January 2008 in which she stated that she had to take care of her husband who was living in the Mainland.  Their allegation also does not sit well with the fact that鄭蔭雄did come to Hong Kong and stay at their home in July 2003 and that he had also made an application to come to settle in Hong Kong for family reunion.  In my view, the new affirmations are no more than a desperate attempt to embellish their case.  That is impermissible. 

40.In exercising the court’s supervisory jurisdiction, I cannot see any reason to interfere with the Director’s conclusion that the applicants’ case did not involve any exceptional circumstances that would justify the grant of permission to stay. 

41.Ground 3 fails. 

D.5.   Ground 5 – duty to give reason

42.The attack based on failure to give reason on the part of the Tribunal is misconceived.  Under section 53A(1) of the Immigration Ordinance, a person against whom a removal order has been made may appeal to the Tribunal on the ground that he enjoys the right of abode in Hong Kong; or he has the right to land in Hong Kong; or he had at the date of removal order was made the permission of the Director to remain in Hong Kong.  As the grounds of appeal are limited, the appellant may not rely on any humanitarian or compassionate grounds.  The Tribunal simply has no jurisdiction to entertain such grounds even if raised.  The Tribunal cannot be flawed for not giving any reason on the applicants’ representations based on humanitarian or compassionate grounds when refusing their appeal.  Any alleged failure to do so will not assist the applicants’ attempt to impeach the 2^nd Decision.  

43.Ground 5 fails as well. 

E.  Conclusion

44.For the above reasons, I dismiss the applicants’ application for judicial review. 

45.Costs should follow the event.  I will make an order that the applicants do pay the Director his costs, to be taxed if not agreed.  The Tribunal has not taken part in the proceedings.  So there will be no order as between the applicants and the Tribunal.  The applicants’ own costs are to be taxed in accordance with the legal aid regulations. 

Mr Stephen Fong, instructed by Messrs Wong, Kwan & Co.,  assigned by DLA, for the Applicants

Mr Liu Yuen Ming instructed by and Mr Suen Sze Yick, GC of Department of Justice, for the 1^st Respondent

The 2^nd Respondent, in person, absent

[1]    In its original form, Ground 1 referred to “the Tribunal”.  But it is apparent from their evidence and submissions that what the applicants meant was “the Director”. 

[2]    In its original form, Ground 4 read “the Director has failed to act in good faith by taking into account …”.  Mr Fong, counsel for the applicants, confirmed that the word “not” had been omitted.