Ho Ming Sai and Others v. The Director of Immigration

CACV000162/1992

Headnote

Application for leave to apply for judicial review - proper approach to the exercise of discretion and rights or reasonable expectations of persons affected by a decision of the Director of Immigration under section 13 of the Immigration Ordinance (Cap 115) considered.

Appeal from a decision of Nazareth JA, sitting as an additional judge of the High Court, dismissed.

IN THE COURT OF APPEAL

1992, No 162
(Civil)

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Coram: Hon Kempster and Litton, JJ.A., and Godfrey, J.

Dates of hearing: 19 and 20 January 1993

Date of handing down judgment: 9 February 1993

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J U D G M E N T

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Kempster, J.A.:

1. This is an appeal by Ho Ming-sai, Ho Ming-fung and their father, Ho Juen-hoi, by his daughter and next friend Ho Ming-sai, against the refusal of Nazareth JA, sitting as an additional Judge of the High Court, to grant them leave to apply for the judicial review of a decision of the Director of Immigration and for orders of certiorari and mandamus. That was a decision, communicated on 7 January 1992 and confirming what had been said in an earlier memorandum dated 27 December 1991, declining so to exercise his undisputed discretion under s 13 of the Immigration Ordinance (Cap 115) as to authorise Ho Ming-sai and Ho Ming-fung to remain in Hong Kong where they had "landed" unlawfully during November 1990. Section 13 reads as follows:

"The Director may at any time authorise a person who landed in Hong Kong unlawfully to remain in Hong Kong, subject to such conditions of stay as he thinks fit, whether or not he has been convicted of that offence, and sections 11(5) (5A) and (6) shall apply to him as it applies to a person who has been given permission to land in Hong Kong under section 11(1)."

In contrast with s 20A of the New Zealand Immigration Act 1964, as amended, this provision does not appear to confer any right on a person who has "landed" in Hong Kong unlawfully or to limit the exercise of discretion. Dagnavasi v Minister of Immigration [1980] 2 NZLR 130.

2. The application for leave was heard by Nazareth JA inter partes on 23 September and he handed down his reserved judgment on October 1. His order bears the same date and was filed on 13 October.

3. The first and second applicants are sisters aged 22 and 19 years respectively. They made their way into Hong Kong following the example of their mother, who entered Hong Kong in 1987, and of their father, the third applicant, who did so during September 1990. Although their parents live apart for reasons of incompatibility they are both lawfully resident here.

4. In February 1991 the first two applicants surrendered to the Immigration Department and Removal Orders were made against them on 17 May following. Presently they are bailed and living with and caring for their father in a rented house in Tuen Mun. He works as a cleaner's assistant in a slaughterhouse and suffers from strange delusions and a form of persecution complex. He is averse to the assistance offered by social workers.

5. In a psychiatric report dated 16 September 1991, forwarded to the Immigration Department on the 24th, Dr Singer has expressed the opinion that the father is a paranoid schizophrenic in need of his daughters' care if he is to remain in the community. It is apparent from memoranda from the Director of Immigration to the Director of Legal Aid dated 27 September and 27 December 1991 and 7 January 1992 that he took this report into account. The Immigration Department then arranged for the father to be re-assessed at Tuen Mun Hospital where he had been receiving treatment as an outpatient. Neither the terms nor the tenor of that report have been disclosed to the applicants. The mother, despite ill health, supports her husband and daughters from her earnings as a worker in a restaurant. She was under a cloud when resident in China on account of Taiwan connections. Indeed she was imprisoned for a time as a spy. It is conceded on behalf of the Director that he was made aware of those facts and, from what we were told from the Bar without objection, it is unthinkable that he did not also take them, and their implications, into account when reaching the decision sought to be reviewed.

6. Nazareth JA held, as was apparently common ground, that it was incumbent upon the applicants to demonstrate that it was arguable that grounds for judicial review existed. Having regard to the speech of Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at p 644 this proposition of law is not quite correct and puts the threshold too high. He should have asked himself whether the material before him disclosed matters that, on further consideration, might demonstrate an arguable case for the grant of the relief claimed. Put another way by Lord Donaldson MR in R v Civil Service Appeal Board [1991] 4 All ER 310 at p 315:

"... leave will only be granted if the applicant makes out a prima facie case that something has gone wrong of a nature and extent which might call for the exercise of the judicial review jurisdiction."

In the circumstances the decision of Nazareth JA was sufficiently vitiated on a point of law to allow us to exercise our own discretion under RSC 053 r 3(1). I accept Mr Barlow's submission on behalf of the applicants that it would be a highly questionable exercise of that discretion to refuse leave if the requirements just outlined were satisfied.

7. What is in issue before us is whether or not the available materials did disclose matters which on further investigation might demonstrate an arguable case for the grant of the relief claimed or a prima facie case that something warranting investigation had gone wrong. Albeit no objection to the decision was raised with the Chief Secretary pursuant to s 53, as to which no point is taken, the applicants had availed themselves, in vain, of the appeal provisions provided by s 53A in relation to the Removal Orders while the mother had petitioned the Governor for her daughters to be allowed to remain in Hong Kong. That petition had been rejected on 23 December 1991. We are told that there were other petitions.

8. As was also said by Sir John Donaldson MR, on this occasion in R v Home Secretary ex parte Swati [1986] 1 WLR 477 at pp 484 and 485:

"...it is in the nature of a discretionary decision that it cannot form a binding precedent... judicial review is not so much concerned with the merits of the decision as with the way in which it was reached."

Thus previous decisions on different facts are of only limited assistance to us and it is not our function to determine whether the Director's decision was right or wrong. It does, however, fall for us to consider the submission that the decision was irrational in the sense outlined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. After consideration I reject it without hesitation. It also falls to consider the submission that the Director's conduct in failing to disclose all the materials germane to the decision impugned together with his opposition to the application for leave gives rise to a suspicion of irrationality. This submission I also, unhesitatingly, reject but there remains for determination the question whether, in the interest of fairness, the Director should have submitted to the applicants such other materials as were before him prior to the exercise of his discretion in order to afford them the opportunity of making such further observations as they thought fit as was held requisite in the case of the dismissal of an officer under s 9(1) of the Royal Hong Kong Auxiliary Police Force Ordinance (Cap 233). Mohamed Yaqub Khan v AG [1986] HKLR 972. But in Robert Lee Flickinger v Director of Immigration [1988] 1 HKLR 81 at pp 93 and 94 Clough JA said in relation to another section of the Immigration Ordinance:

"In exercising his discretionary powers under s 11(5A) (c) of the Immigration Ordinance the Director may make such inquiries as he thinks fit. The applicant had no right, nor in the circumstances of this case did he have any legitimate expectation, to be told about the results of the Director's inquiries or to be allowed to rebut the information obtained by the Director concerning the applicant.

In our judgment the situation is covered by the dicta of Lord Denning in Schmidt's case at pp 170 to 171..."

These words are equally applicable to s 13.

9. Insofar as it is submitted that the Director should have given his reasons this Court held in Lau Tak-pui and Ors v Director of Immigration Civil Appeal No 179 of 1991 (Unreported) that the tribunal established under s 53F of the Ordinance was required to do so. But that decision substantially depended upon the fully judicial nature of the tribunal and upon the relevant wording of the Ordinance. By contrast the decision of the Director of Immigration in the instant case was administrative and the decision of the English Court of Appeal in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 is to the effect that an alien has no right even to make representations to the Home Secretary in relation to any extension of permission to stay in the United Kingdom. Referring to the Aliens' Order 1953 Lord Denning MR said, at pp 170 and 171:

"By contrast in the later case of Reg v Secretary of State for the Home Department, Ex parte Avtar Singh (Divisional Court, July 25, 1967, unreported) a Commonwealth citizen said he wanted to come in so as to marry a girl here. He had no right at all to be admitted. The statute gave the immigration officers a complete discretion to refuse. Lord Parker CJ held that they were under no duty to tell him why he was refused admission and were not bound to give him an opportunity of making representations. If such be the law for a Commonwealth immigrant, it is all the more so for a foreign alien. He has no right to enter this country except by leave: and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations; for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right - and, I would add, no legitimate expectation - of being allowed to stay. He can be refused without reasons given and without a hearing. Once his time has expired he has to go."

Widgery LJ agreed. Russell LJ dissented only because he thought the matters raised unsuitable for the application of the striking-out procedure provided by Rules of Court. Lord Denning LJ observed that the Home Secretary did not in practice act arbitrarily and was always ready to consider any representations that were put before him. Similarly, we are satisfied, is the Director of Immigration ready, as presently shown, to consider materials submitted to him. More recently in R v Civil Service Appeal Board ex parte Cunningham [1991] 4 All ER 310 at p 317 Lord Donaldson MR said:

"There are three possible bases for holding that the board should have given reasons for their award. The first is that there is a general rule of the common law or, if that be different, a principle of natural justice than a public law authority should always or even usually give reasons for its decisions. I am not sure to what extent this was advanced before Otton J, but he rejected it decisively. Suffice it to say that the proposition is unarguable..."

As with the appellant in Ng Yuen-shiu v AG [1981] HKLR 352, in which Schmidt v Secretary of State for Home Affairs was followed, each of the applicants here "stands before the Court as one who at best has a hope or expectation of attracting the sympathetic consideration of the Director who has a discretion under s 13 of the Ordinance to authorise him to remain subject to such condition of stay as the Director sees fit to impose" per McMullin V-P at p 360.

10. In the light of the authorities I find nothing in the materials put before Nazareth JA or before us which discloses matters that on further consideration might demonstrate an arguable case for the grant of the relief claimed or suggests that something has gone wrong of a nature and extent which might call for an order of certiorari or mandamus.

11. Mr Barlow finally contends that we should allow the appeal and give leave for the Director's decision to be judicially reviewed in order to furnish an opportunity for testing the continued validity of the decision in Schmidt v Secretary of State for Home Affairs albeit it has stood for over 20 years. It is quite true, as Professor Wade points out in the 6th edition of his Administrative Law at p 576, that:

"In 1969 Parliament enacted an elaborate system of tribunals and appeals, which was extended to aliens, giving procedural rights before immigration adjudicators and the Immigration Appeal Tribunal. Aliens could then appeal against exclusion, deportation, non-renewal of residence permits, conditions of residence, and other restrictions."

So in Hong Kong the Immigration Ordinance was first enacted in 1971 for like purposes. But, attractive as Mr Barlow's submission initially appeared, it would not be an appropriate exercise of discretion to grant an application for leave to apply for judicial review for no other reason than to facilitate an eventual appeal to the Privy Council. Section 13 requires only, in my opinion, that the Director should act lawfully and honestly and no argument has been advanced in this Court which suggests that any application, were leave to be granted, would establish that the Director acted otherwise.

12. While the points canvassed on this appeal, with the assistance of the Legal Aid Department, warranted argument I am satisfied that Nazareth JA came to the right conclusion and that the discretion of this Court should be exercised in the same way. I would dismiss the appeal accordingly and make an order nisi that the Director of Immigration should have the costs. I would also make an order for the Legal Aid taxation of the applicants' costs.

Litton, J.A.

13. The discretion vested in the court under Order 53 r.3 is not an easy one to exercise. Apart from the requirement that the applicant should have a sufficient interest in the matter - Order 53 r.3(7) - and that the application for leave should be made promptly - Order 53 r.4(1) - the rules give no guidance to the judge. Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-employed and Small Businesses [1982] A.C. 617 at 643-G referred to this as the "threshold stage" in the process of judicial review. Obviously, the intention behind the rule is that public authorities and the like should not be vexed with hopeless applications, particularly since the court has power, once leave to apply for judicial review is given, to make orders for discovery, interrogatories, cross-examination etc. against the respondent : Order 53 r.8.

14. On the other hand, the aggrieved citizen may have little material in hand at the leave stage and one of his complaints could very well be that the authority concerned had dealt with him in an oppressively secretive manner. If the court were to erect too high a threshold under Order 53 r.3, many legitimate grievances could be screened out. Further, as Mr. Barlow in this case argued, the remedy of judicial review covers a wide and expanding area of public law; the approach of the courts to the reliefs set out in Order 53 r.1(1) - orders of certiorari and the like - is not set in stone and could change with time. In applying the concepts of "fair play" there must be flexibility. The binding effect of precedent may not be as strong here as in other areas of the law.

15. In this case the judge, after referring to the provisions of section 13 of the Immigration Ordinance - which gives the Director of Immigration a discretion to authorise a person who has landed in Hong Kong unlawfully to remain - said:

"It is not in dispute that to obtain leave the applicants must show that they have an arguable case (see e.g. R. v. Secretary of State ex parte Swati [1986] 1 WLR 477".

16. In referring to ex parte Swati for the threshold test the judge probably had in mind the passage at p.482-F where Sir John Donaldson MR said :

"If the applicant were to obtain leave, he had at least to satisfy the court that he had an arguable case for judicial review upon the grounds of illegality, 'irrationality' (i.e. Wednesbury unreasonableness: see Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223) or procedural impropriety : see Council of Civil Service Unions v. Ministers for the Civil Service [1985] AC 374, 410."

17. If emphasis were put on the word "at least" in the passage quoted above, then it is clear that a requirement that an applicant must, in every case, show an arguable case for judicial review before leave can be granted would put the threshold far too high. This becomes clearer at p.485-A where Sir John Donaldson MR said :

"Even if the matter had stopped there, I would have been minded to refuse leave to apply upon the grounds that an applicant must show more than that it is not impossible that grounds for judicial review exist. To say that he must show a prima facie case that such grounds do in fact exist may be putting it too high, but he must at least show that it is a real, as opposed to a theoretical, possibility. In other words, he must have an arguable case."

18. Plainly, it is not intended that in dealing with an application for leave under Order 53 r.3 the court should anticipate the outcome as if all the relevant evidence were already before the court. It is not intended that the court should, at the threshold stage, entertain elaborate arguments on the facts and the law: see Lord Diplock in IRC v. National Federation of Self-employed (1982) AC 617 at 643-H to 644-A where he said:

"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

19. The threshold described by Lord Diplock at the leave stage appears similar to that referred to in Lord Donaldson MR's judgment in Ex Parte Cunningham [1991] 4 All ER 310 at p.315H, referred to by Nazareth JA in his judgment at p.18 of the appeal bundle, where he said:

"The public law jurisdiction of the court is supervisory and not appellate in character. All this is very much present to be minds of judges who are asked to give leave to apply for judicial review. Such leave will only be granted if the applicant makes out a prima facie case that something has gone wrong of a nature and extent which might call for the exercise of the judicial review jurisdiction."

20. Although the words "to obtain leave the Applicants must show that they have an arguable case" in Nazareth JA's judgment (p.10 of the appeal bundle), taken in isolation, suggest that the threshold was put too high, I am not convinced that reading his judgment as a whole, he has in fact applied the test incorrectly. On this ground alone I would be inclined to dismiss the appeal. But I go further.

21. Looking at the possible grounds for judicial review, as referred to in ex parte Swati at p.482F, it seems to me that no question of illegality could possibly arise upon the facts disclosed in the affidavits. As to irrationality in the Wednesbury sense, I cannot see how it could be suggested that a refusal to allow illegal immigrants to remain in Hong Kong, for "compassionate" reasons, could bring the case within this ground. The Director has a very wide discretion under s.13 of the Immigration Ordinance, and it is not for the courts to say how that discretion should be exercised. As Mr. Graham, on behalf of the Director, submitted, there must be many persons in Mainland China applying through proper channels to enter Hong Kong legally on compassionate grounds; to allow others to "jump the queue" by breaking the law and then dealing with them favourably because they have done so may not seem wholly reasonable.

22. This leaves the last ground for analysis, that of procedural impropriety. Putting the applicant's case at its highest, it is this : the Immigration Department could, without detriment in any way to good administration, have stated whether they accepted Dr. Singer's opinion that the father, a Hong Kong permanent resident, required the care of his two daughters, the 1st and 2nd applicants; in particular, they could have disclosed, in the course of correspondence with the Director of Legal Aid, whether they had received contrary advice from the Tuen Mun Hospital to the effect that the father did not need the daughters to care for him. This argument hinges on whether, arguably, the Director was required to give reasons for his decision, or, perhaps more accurately, whether further consideration of this point might be justified on an inter partes basis. The answer in my judgment must be NO. There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other people : see Gibbs CJ in Public Service Board of NSW v. Osmond [1986] 60 ALJR 209 at 211 [High Court of Australia] where many Commonwealth authorities are cited.

23. An illegal immigrant could not expect to be permitted to remain in Hong Kong by the Director; indeed, if the Director were to exercise his discretion under section 13 to create such an expectation, he would be acting contrary to the whole scheme of the Ordinance, which is to. regulate the lawful entry of persons into Hong Kong, either on a temporary or a permanent basis. Putting the applicants' case at its highest, they might hope that the Director would allow them to remain on compassionate grounds. There is no question here of anyone needing to make out a case against the applicants, before the Director could lawfully decide to order their removal to China. Assuming that the Director had obtained confirmation of Dr. Singer's opinion, say, from the Tuen Mun Hospital, that the father needed the care of the two daughters, still he could refuse them permission to stay. The Director has clearly much wider considerations to bear in mind, in exercising his discretion under s.13, than the welfare of the applicants. Assuming he had given reasons and had said:

"It is generally not my policy to allow illegal immigrants to stay; I see no reason to depart from that policy in this case": would the applicants be any better off?

24. In my judgment the judge had reached the right conclusion in this case. I concur in the order My Lord Mr. Justice Kempster has proposed.

Godfrey, J.:

25. This is a sad case. Kempster, J.A. has set out the facts in his judgment. I gratefully adopt his account of them.

26. If the question for this Court to determine was whether the daughters of this sick man had made out a case, on compassionate grounds, for their being allowed to remain here in order to look after their father, I would, without hesitation, answer it in the affirmative; particularly since, after 1st July 1997, they will be entitled to be treated as "permanent residents" of Hong Kong pursuant to Article 24 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, due to come into force on that date.

27. But that is not the question before this Court.

28. These girls are "illegal immigrants"; and this Court has no power to decide whether illegal immigrants, however strong the merits of their case, ought to be allowed to remain here or not. Such a power does exist; but section 13 of the Immigration Ordinance, Cap.115, confers it, exclusively, on the Director of Immigration.

29. Now, although these girls are illegal immigrants, I would for myself distinguish their position from that of the "foreign alien" in Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch.149, or the "commonwealth immigrant" in Reg v. Secretary of State for the Home Department, ex parte Avtar Singh (Divisional Court, 25th July 1967, unreported). These girls are Chinese nationals. In a few years' time, all Chinese people here and on the mainland will be universally recognized as "compatriots" and indeed are already and understandably so recognized by the Government' of the People's Republic of China. I would like to think this makes a difference. But does it?

30. The courts are concerned with the law as it is. What we, or some of us, may think it ought to be, is irrelevant. What it may or even will be in the future is equally irrelevant. For the purposes of this appeal, we must treat these girls, who are illegal immigrants, as the law requires us to do; and the law is as clear as can be. Each of these girls "stands before the court as one who at best has a hope or expectation of attracting the sympathetic consideration of the Director of Immigration who has a discretion under s.13 of the Ordinance to authorise [her] to remain....": see Ng Yuen-shiu v. A.G. [1981] HKLR 352, per McMullin, V-P at p.360. They have no right, and no legitimate expectation (i.e., an expectation, induced or encouraged by the conduct of the Director of Immigration) of being allowed to stay here.

31. The Director of Immigration's power, under s.13, to allow an illegal immigrant to stay here is administrative rather than judicial in character. Of course, those on whom administrative powers are conferred are not altogether immune from judicial review. On the contrary. It behoves every civil servant entrusted with administrative powers always to remember the judge at his elbow. But the grounds on which the exercise of such administrative powers will be judicially reviewed are, in my judgment, necessarily much more limited than the grounds on which the court will review the exercise of a power of a judicial, or quasi-judicial, character. Certainly, the court would be prepared to intervene in the event of any misuse by the Director of Immigration of his power under s.13. If he were to abuse his power illegally (e.g., by refusing to consider an exercise of his powers in favour of an illegal immigrant unless bribed to do so) or irrationally (e.g., by refusing to consider an exercise of his powers in favour of any illegal immigrant of Chinese race or nationality) the court would intervene. But, further than that, I do not believe the court would or should go.

32. If it be thought that some procedure ought to be laid down for the Director of Immigration to follow in considering pleas by illegal immigrants such as these girls to be allowed to remain here, it is for the legislature, not the court, to introduce such a procedure into the law. Once such a procedure has been introduced, it becomes the right of the person for whose benefit it was provided to have it properly observed. The court would then be able to intervene in any case in which there was some reason to believe that the Director of Immigration had been guilty of a procedural impropriety because he had failed to follow the prescribed procedure. But, absent any legislative provisions in that connection here, there is simply no room, in my judgment, for a review of a decision of the Director of Immigration under s.13 on the ground that he has failed to proceed in accordance with the rules of natural justice. In particular, there is no room for any suggestion that he is under some sort of duty, before making up his mind, to disclose to the illegal immigrant all, or any, of the materials on which he proposes to rely in coming to his conclusion. (This view of the matter is supported by the observations of Clough, J.A. in Robert Lee Flickinger v. Director of Immigration [1988] 1 HKLR 81, at pp. 93-94, cited in Kempster, J.A.'s judgment.)

33. If I am right so far, it is obvious that leave should not be given to the applicants in the instant case to apply for a judicial review of the refusal of the Director of Immigration to exercise in favour of these girls the power conferred on him by s.13; for any such application, based on the material before us, would be bound to fail. Mr Barlow, as I understood his argument on their behalf, submitted that if on that material the judge to whom the application for leave was made felt that, on the review itself (in which the Director of Immigration would have to file evidence) something might turn up which could assist the applicants, then leave ought to be granted. I do not agree. You do not get leave to apply for a judicial review when your case is all surmise and Micawberism (if I may borrow a phrase used in a different context by Megarry, V-C in The Lady Anne Tenant v. Associated Newspapers Group Limited [1979] FSR 298).

34. The judge below said (and it was not disputed) that "to obtain leave the applicants must show that they have an arguable case". But, since the purpose of requiring leave to be granted before a substantive application for a judicial review is allowed is simply to filter out hopeless cases, I think a more liberal test is required than that adopted by the judge. In my judgment, the question which a judge has to ask himself at the leave stage is this: "Does the material before me disclose what might on further consideration turn out to be an arguable case?" If he asks himself whether there is an arguable case, he risks pre-empting questions which ought properly to be decided at the substantive hearing, not at the leave stage.

35. But it makes no difference. The judge decided that this case was one in which leave ought not to be granted. I have reached the same conclusion, although by a shorter route. I agree that this appeal must be dismissed, with the order nisi as to costs proposed by Kempster J.A.

Representation:

Barrie Barlow (M/s Wong, Hui & Co) for Appellants

Peter Graham & Merna Datwani (AG) for Respondent