Read the full judgment text of CACV 000168/1992 on BabelCite. This Court of Appeal judgment was delivered on 24 March 1993 before Litton JA, Mortimer J, Godfrey J.
Administrative law – judicial review – immigration – Immigration Ordinance Cap. 115 s.13 – discretion of Director of Immigration to authorise illegal immigrant to remain in Hong Kong – two families comprising mainland mothers (illegal immigrants) with young children born in Hong Kong and Hong Kong permanent resident fathers – strong humanitarian grounds alleged – whether Director's decision disclosed error of law on face of record by failing to exercise s.13 discretion separately from s.19 removal order – whether Director's decision was Wednesbury unreasonable or irrational – whether government's general 'stated policy' since 1980 (that illegal immigrants should be returned unless strong or powerful humanitarian reasons exist) created a legitimate expectation under A.G. v. Ng Yuen-shiu [1981] HKLR 352 entitling each applicant to have humanitarian circumstances considered before removal order executed – held: first ground of challenge failed because, despite unfortunate and 'confusing' wording of the Department's replies, unchallenged affidavits of Deputy Director showed that humanitarian grounds put forward after removal orders were in fact carefully considered and rejected in both cases; second ground of challenge failed because the threshold of Wednesbury unreasonableness, as formulated by Lord Diplock in CCSU v. Minister for the Civil Service [1985] AC 374 and Lord Greene MR in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223, is very high and was not approached on the facts; third ground failed because the general 'stated policy' is distinguishable from the specific promise or undertaking that grounded the legitimate expectation in Ng Yuen-shiu, and s.13 is an empowering provision that does not impose a duty to entertain applications on humanitarian grounds in every case; s.13 said nothing about 'applications' and it would be an extravagant proposition to construe it as requiring the Director to pause to consider humanitarian grounds before executing a removal order – appeals dismissed with costs to be taxed under the Legal Aid Regulations – court expressed unease at absence of any right of appeal for illegal immigrants with moral claims to remain and suggested legislative amendment (e.g. right of appeal to Governor-in-Council on the model of the New Zealand immigration legislation) as a possible reform.
Legal issues: Whether the Director failed to exercise his discretion under s.13 of the Immigration Ordinance · Whether s.13 of the Immigration Ordinance creates a legitimate expectation of consideration of humanitarian grounds · Whether the Director's decision was Wednesbury unreasonable/irrational
Outcome: Both appeals dismissed; the Director's decisions not to exercise his discretion under s.13 of the Immigration Ordinance in favour of the appellants upheld.
Cited by 3 cases