Chan Heung Mui and Others v. The Director of Immigration

CACV000168/1992

Headnote

Judicial Review of Director of Immigration's power under section 13 Immigration Ordinance Cap. 115 - Strong "humanitarian grounds" for permitting applicants to stay in Hong Kong - whether there has been "procedural impropriety" in making decision to refuse permission to stay - whether the decision is "Wednesbury" unreasonable - the scope of "legitimate expectation" in A.G. v. Ng Yuen-shiu [1981] HKLR 352 considered.

IN THE COURT OF APPEAL

1992, No. 168
(Civil)

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and

IN THE COURT OF APPEAL

1992, No. 169
(Civil)

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

Dates of hearing: 4 and 5 March 1993

Date of handing down judgment: 24 March 1993

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J U D G M E N T

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Litton, J.A.:

1. These appeals concern the scheme of immigration control administered by the Director under the Immigration Ordinance, Cap. 115. They involve the stories of two families, in each of which the mother, born in China, is an illegal immigrant with young children born in Hong Kong who have the right of abode in the territory. In each case the father is a Hong Kong permanent resident. The two cases were heard together by Liu, J. in September last year and it is against his refusal to grant relief in proceedings for judicial review that the appeals have been brought to this court.

2. It might be helpful at the outset to repeat section 13 of the Immigration Ordinance Cap. 115 since much of the argument on these appeals focussed on this section. It states:

"The Director may at any time authorize 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......"

Background Facts : CA 168/92

3. The first applicant is Madam CHAN Heung-Mui who was born in China and married a Hong Kong resident YEUNG Shui-kan in May 1989. After the marriage in China, her husband returned to Hong Kong. In November 1989, the applicant entered Hong Kong illegally and resided in a flat in the Choi Wan Estate with her husband, her parents-in-law and her husband's three brothers. In January 1990 the applicant gave birth to a daughter YEUNG Wing-kwan. In August 1990 the applicant surrendered to the immigration authorities as an illegal immigrant, was detained briefly, and then released on bail pending further investigation. In March 1991 the applicant gave birth to another girl, Yeung Wing Po.

4. On 14 November 1991 the applicant was taken back into custody pending her removal to China, an order for removal having been made against her on 6 November 1991 pursuant to section 19(1)(b)(ii) of the Immigration Ordinance. She was released on bail on 19 November 1991.

5. By letter dated 15 November 1991 solicitors for Madam Chan wrote to the "Officer-in-Charge Victoria Immigration Centre" asking for the exercise of discretion under section 13 of the Immigration Ordinance to permit Madam Chan to remain in Hong Kong pending her appeal under section 53A of the Immigration Ordinance to the Immigration Tribunal. In this letter a number of compassionate grounds were set out including the following :

(i) The two daughters, both born in Hong Kong, were then respectively only 22 months old and 7 months old.

(ii) Madam Chan's husband was mentally retarded and could barely take care of himself. She lived with her parents-in-law who were in poor health and, in fact, her mother-in-law had died two days before.

(iii) Madam Chan had the responsibility of taking care of the entire family.

(iv) All the members of her husband's family lived in Hong Kong.

6. The letter was aimed at persuading the authorities that Madam Chan should be released on bail so that she could attend to her family whilst funeral arrangements were being made for her mother-in-law. It did make the general point that Madam Chan had made "several applications to the Immigration Department for stay in Hong Kong for herself and her two children on humanitarian grounds". The letter also made the point that Madam Chan would have great difficulty in earning a living in China and would also face a heavy fine which she would be unable to pay. She was likely therefore to be sent to prison in China.

7. On 26 November 1991 Madam Chan's appeal to the Immigration Tribunal was dismissed without a hearing.

8. On 17 December 1991 Madam Chan attended at the Victoria Immigration Centre and gave a lengthy statement to an Immigration Officer concerning the state of health of members of her family and other circumstances, such as the fact that her husband earned very little and the family was mainly supported by her three brothers-in-law.

9. On 2 January 1992 the Legal Aid Department, which had by then had decided to grant legal aid, wrote to the Director of Immigration in these terms :

"re Madam CHAN Heung-mui

1. The purpose of the letter to yourselves from Messrs Ching, Yeung & Co dated 15 November 1991, and our memo to yourselves dated 10 December 1991, was to set out matters which justify exercise of discretion under section 13.

2. Are you going to reconsider matter?"

10. This was followed up with memos seeking a reply.

11. On 27 February 1992 the Director of Immigration answered as follows:

"re Madam CHAN Heung-mui

The circumstances of Madam Chan's case had all been carefully considered before the issue of removal order against her.

Unless confirmation of approval of the application for legal aid is received before 19 March 1992..... we are prepared to execute the removal order without further notice."

Background Facts: Civil Appeal No. 169/92:

12. In this case the first applicant is Madam HUI Kat-fan who was also born in China. In October 1978 she married Mr. LAU Kwan who came to Hong Kong as an illegal immigrant at a time when the "touch base" policy still prevailed and was permitted to remain in Hong Kong. He accordingly acquired the status of a Hong Kong permanent resident after seven years.

13. In November 1981 Madam Hui gave birth to her first child LAU Chung-yiu who is also one of the applicants in the proceedings before the judge. It is common ground that his case stands or falls with that of his mother Madam Hui.

14. Between her marriage to Mr. LAU Kwan in October 1978 and January 1990, when the fourth child of the family was born in Hong Kong, Madam Hui had entered Hong Kong illegally, and then returned to China, a total of three times. On the last occasion, in March 1988, she was removed by the Director under s.19(1)(b)(ii) of the Ordinance. Three of her four children were born in Hong Kong. When Madam Hui were removed to China in March 1988 she took with her the second and third child. In 1989 Mr. Lau brought the second and third child back to Hong Kong, so that the second child could start schooling here. Shortly thereafter Madam Hui returned to Hong Kong illegally, to take care of the children and be with her husband. In November 1990 the first child LAU Chung-yiu also entered Hong Kong illegally from China in order to join the rest of the family.

15. On 20 November 1990 Madam Hui and the first child LAU Chung-yiu surrendered themselves to the Immigration Department. Madam Hui also brought with her the fourth child, LAU Hiu-lam, then 10 months old, because she was born at home in Hong Kong and there was therefore no hospital record of her birth in Hong Kong.

16. On 19 June 1991 removal orders were made against Madam Hui, the first child LAU Chung-yiu and the fourth child LAU Hiu-lam and, for the period of about one week, all three were detained at the Victoria Immigration Centre pending removal. However, the family were able to establish to the satisfaction of the Immigration Tribunal that the fourth child LAU Hiu-lam had a right of abode in Hong Kong. Hence, the removal order was effective only as against Madam Hui and LAU Chung-yiu. The information available to the Immigration Department showed that at the time when Madam Hui was previously removed by order of the Director, in March 1988, she had a widowed father and a brother residing in her native village in China.

17. On 21 January 1992 the Director of Legal Aid, acting on behalf of Madam Hui and LAU Chung-yiu, asked the Director of Immigration to consider authorising them to remain in Hong Kong and, for that purpose, enclosed a letter of the same date from the husband LAU Kwan. In his letter LAU Kwan stated fully the family circumstances and made the following points:

(i) That two of the children were attending local schools and were "well integrated into their own little community be it school or at home";

(ii) Madam Hui, although an illegal immigrant, had spent the last seven years out of ten in Hong Kong;

(iii) that they had no close relatives in Hong Kong;

(iv) that he worked as a delivery worker and would not be able to stay at home to look after the children;

(v) that much grief and harm would result if the family were split up and his wife and eldest son were sent back to China.

18. The reply from the Director of Immigration, dated 26 February 1992, was in these terms:

"I refer to your letter dated 21 January 1992 passed to us by the Director of Legal Aid.

As a matter of fact, the circumstances of Madam Hui and master Lau had been carefully considered before the removal orders were issued against them. We are prepared to execute the removal orders as soon as possible".

Application for Judicial Review

19. It is against the backgrounds as summarised above that the applicants in the two cases applied to Stock J. for leave to issue proceedings for judicial review, which was granted on 26 May 1992. It is worth noting in passing that in the notice of motion before Stock J. the relief sought was inter alia for an order of mandamus directed to the Director of Immigration directing him to "re-exercise his discretion under section 13 of the Immigration Ordinance to allow the applicants.....to stay in Hong Kong....." [emphasis added]. Relief in similar terms were sought in the case of CHAN Sau-mui v. Director of Immigration CA 60 of 1992 (29/5/92, unreported) where, at p.4, Sir Derek Cons, V.-P. said that such prayer for relief indicated a clear misunderstanding of the role of the court in proceedings of this kind. The court has no function whatever in deciding whether an applicant should or should not be allowed to stay in Hong Kong. The court's role is purely supervisory, to ensure that the decision-making process of the Director is according to law. Leave should never have been granted to issue proceedings in those terms. However, before the matter was heard by Liu, J., the notice of motion was amended so that an order of mandamus was sought directing the Director of Immigration to "exercise his discretion under section 13 of the Immigration Ordinance in respect of the applications by the applicants ......".

Grounds for Relief

20. The grounds for relief, as set out in the amended statements were virtually identical for both cases and were in these terms:

"1. The decision-making process and decision(s) of the Director of Immigration are predicated on an error law, as revealed in the decision dated 27th February 1992 (26th February 1992), in that the Director of Immigration has failed to exercise the separate and cumulative discretion under s.13 Immigration Ordinance Cap. 115 and has merely relied on his earlier decision in making a removal order under s.19 Immigration Ordinance Cap. Cap. 115, believing that the decision under s.19 is determinative and conclusive of any decision under s.13. This is, inter alia, an error of law on the face of the record.

2. The decision-making process and decision(s) are fundamentally flawed, as the Director of Immigration has failed to take into account that the Applicants Yeung Wing-kwan aged 2 years and Yeung Wing-po aged 1 year (Lau Cheung-yuk aged 6 years, Lau Hiu-ling aged 5 years and Lau Hiu-lam aged 2 years) have the unfettered right to remain in Hong Kong, yet that human right is rendered nugatory in the absence of their mother (and brother).

3. The Director of Immigration has failed to take into account the financial, social and humanitarian circumstances, pertaining to all the Applicants. The decision(s) is (are) necessarily predicated on findings or assumptions of material facts that are demonstrably incorrect. Alternatively, the Director of Immigration has misdirected himself as to material facts such as to have never legally entered upon a proper and fair decision-making process.

4. Further and alternatively, if the Director of Immigration did exercise his discretion under section 13 against the Applicant CHAN HEUNG MUI (Applicants Hui Kat Fan and Lau Chung Yiu) then his decision was irrational since no reasonable Director of Immigration could have concluded that no humanitarian grounds or circumstances existed." (The bracketed portions come from Civil Appeal 169/92).

21. Paras 2 and 3 of the statement seem to be focussed upon particular factors which point to the decision of the Director being "irrational" in the "Wednesbury" sense, and could never have been separate grounds for relief in judicial review proceedings. In essence, the points argued before Liu, J., and repeated in this court, were these:

(i) That, having regard to the answers given by the Director of Immigration, in CA 168/92 dated 27/2/92 and in CA 169/92 dated 26/2/92, it is manifest that the Director never applied his mind to the strong humanitarian factors put forward on behalf of the applicants when they invoked his discretion under section 13 of the Immigration Ordinance, since, up to the stage when the removal orders were made in each case, no humanitarian grounds had been put forward for consideration. Thus, in CA 168/92, when the Director said that "the circumstances of Madam Chan's case had all been carefully considered before the issue of the removal order against her", this excluded any possibility of the Director having considered the circumstances after the issue of the removal order.

(ii) That, in any case, having regard to the strong humanitarian grounds actually put forward, the decision not to allow the applicants to remain in Hong Kong in each case "irrational" and therefore unlawful.

Ground (i)

22. If the replies were taken in isolation, the point might be well made. However, after the institution of proceedings, the Deputy Director of Immigration has, in each of these two cases, made an affidavit.

23. In Madam Chan's case he said, quite rightly, that when Madam Chan's solicitors wrote on 15 November 1991 asking for the Director's exercise of discretion under section 13, it was limited to enabling Madam Chan to stay in Hong Kong pending her appeal to the Immigration Tribunal against the removal order. However, after Madam Chan's appeal had been dismissed by the Tribunal on 26 November 1991 without a hearing, Madam Chan's case was nevertheless reviewed by the department in the light of the latest health and medical conditions of members of Madam Chan's family. She was invited to give a statement to the department, which she did on 17 December 1991. On 2 January 1992 the Legal Aid Department, writing on Madam Chan's behalf, said that the solicitors' letter of 15 December 1991 was written "to set out matters which justified the exercise of discretion under section 13". This was taken by the department to be a request for consideration under section 13 without qualification : that is, not for the limited purpose of permitting Madam Chan to remain in Hong Kong pending the appeal to the Tribunal. The Deputy Director's affidavit then goes on to say as follows:

"17 The Immigration Department's file indicated that the statement given by Madam Chan on 17 December 1991 .... had been scrutinized by my staff. Further reassessment was done on new matters arising since the issue of the removal order in view of the fact that Madam Chan's mother-in-law had passed away on 13 November 1991, and that fresh complaints had been raised by Madam Chan regarding her own health as well as that of her eldest daughter....

18. Madam Chan's files and related documents were again studied by me in consideration of whether to exercise my discretion under section 13 of the Immigration Ordinance. After review of the papers, I came to the view that no strong or powerful humanitarian grounds had been made out by Madam Chan. I therefore decided, on 21 February 1992, not to allow Madam Chan to remain in Hong Kong.

19. It was against this background that on 27 February 1992 a memo was sent to the Legal Aid Department advising that "the circumstances of Madam Chan's case had all been considered before the issue of a removal order against her".

24. In Madam Hui's case, there was, of course, already in existence a file concerning her before she surrendered herself to the Immigration Department on 20 November 1990, since she had been repatriated to China once before, in March 1988. At the time when the removal orders were made against Madam Hui, her eldest child LAU Chung-yiu and the baby LAU Hiu-lam, it was known to the department that Madam Hui had a widowed father and a brother residing in China in the same village. The removal orders were made on 19 June 1991. An appeal against the removal order was lodged on behalf of the baby LAU Hiu-lam, on account of the fact that she was born in Hong Kong, and this was established in the proceedings. On 21 January 1992 the Director of Legal Aid wrote to the Director of Immigration enclosing the letter from Madam Hui's husband LAU Kwan in which he stated a number of humanitarian factors why the family should not be split up and why Madam Hui and their eldest child should not be repatriated to China. Para. 18 of that letter is notable. It states:

"18. You may if you wish grant them leave to remain for 12 months initially renewable at the expiry of the said 12 months' period. My main concern now is to keep the family together especially when the children are still young and not yet able to look after themselves."

The letter, according to the Deputy Director of Immigration, was dealt with in this way:

"18. The matter was initially examined by my staff. Reference was made to all previous known facts in the files concerning the earlier and present unlawful landings of Madam Hui as well as that of master LAU Chung-yiu. Comparison of such known facts with those set out in the letter of letter of 21 January 1992 from LAU Kwan to the Immigration Department was made. Although it was asserted by LAU Kwan that "my wife, although an illegal immigrant, has nevertheless spent the last seven years out of ten in Hong Kong", it was noted that her alleged stay in Hong Kong which remained undetected between 1981 and 1988, was not unlawful. Consideration was also given to the assertion that the couple had no close relatives in Hong Kong.

19. All in all, the request for an initial stay of 12 months in Hong Kong and renewable at the end of the 12 months for Madam Hui and master LAU Chung-yiu was reassessed by my staff, noted in the files and submitted to me for consideration. I took note that no new or fresh facts had emerged from the letter of 21 January 1992 sent by LAU Kwan, and that no strong or powerful humanitarian ground or other circumstances existed which could convince me to grant their request for an initial stay of 12 months. I therefore on 21 February 1992, after a full review of the files and materials available, decided not to allow Madam Hui and master LAU Chung-yiu to remain in Hong Kong."

25. In the light of the evidence as summarised above, it seems to me impossible to contend that the Director had given the strong humanitarian factors of the two families no consideration. On the contrary, the evidence established that careful consideration was given to those matters in each instance. The phraseology of the respective replies (dated 27 February 1992 in CA 168/92 and 21 February 1992 in CA 169/92) was unfortunate, since they referred to the circumstances before the issue of the removal order, and could well have given the impression that the matters put forward for consideration after the removal orders were disregarded. The judge thought the terms of the letter "confusing" and "less than accurate". He is correct in this regard. The unchallenged evidence in the Deputy Director's affidavits shows conclusively that the grounds put forward were considered. This, in my view, totally disposes of the appellants' first ground of appeal.

26. I should, in parenthesis, add this observation. I am by no means convinced that, if the Director had given no consideration at all to the humanitarian grounds put forward, the appellants must necessarily have succeeded in these proceedings. Section 13 of the Ordinance imposes no statutory duty of any kind upon the Director, beyond the broad duty falling upon him to administer the scheme of immigration control embodied in the Ordinance fairly and properly. One can test the legal position by asking a rhetorical question: How would it be "procedural impropriety" (as per the speech of Lord Diplock in CCSU v. Minister of Civil Service (1985) AC 374 at 410) if the Director did not look at the humanitarian considerations applicable to each applicant? The argument for the appellants runs along these lines:

(i) There is a government policy, publicly stated, that humanitarian considerations would be considered in the exercise of the Director's discretion under section 13:

(ii) this creates a "legitimate expectation" on the part of all illegal immigrants in the territory that the humanitarian considerations applicable to their individual cases would be given due consideration;

(iii) failure to afford each appellant an opportunity to state his case defeats such expectation and impeaches the decision in law: Attorney General v. NG Yuen-shiu (1981) HKLR 352.

27. I doubt whether the decision of the Privy Council in Ng Yuen-shiu goes as far as this. In that case, when the "touch base" policy was discontinued, a promise was made to the illegal immigrants, in particular the group who submitted a petition to Government House, that they would be interviewed in due course and that each case would be "treated on its merits". That was an undertaking given to the illegal immigrants present in the territory; an undertaking from which the government resiled. The Privy Council, upholding this court, concluded that the Director was bound to hear the appellant on such humanitarian grounds as he might choose to advance before exercising his discretion under s.13.

28. Here, the policy on which the appellants rely is stated in these terms:

"Since 1980 it has been the government's stated policy on illegal immigrants that they should all be returned unless there are considered to be strong or powerful humanitarian reasons for doing otherwise in individual cases".

29. These statements in general terms seem to me to be distinguishable from the "promise" made to illegal immigrants in Ng Yuen-shiu's case. It is worth recalling that in Ng Yuen-shiu's case two questions were raised on the appeal: see Lord Fraser's speech at 636A. The broad question was whether an illegal immigrant had, as a general rule, a right to a hearing, conducted fairly and in accordance with the rules of natural justice, before a removal order was made against him. The Court of Appeal decided this question against the illegal immigrant. Their Lordships in the Privy Council left this decision undisturbed. Their conclusion was upon a narrower ground and was in effect this: assuming that, as a general rule, an illegal immigrant had no right to a hearing in accordance with the rules of natural justice, nevertheless because of the exceptional circumstances in Ng Yuen-shiu's case, where a positive undertaking had been given, the Director of Immigration was bound by it.

30. In terms of the "stated policy", as deposed to by the Deputy Director of Immigration in this case, I find it difficult to conclude that any kind of "undertaking" has been made by the Director to anyone to consider each case on humanitarian grounds. In Ng Yuen-shiu, the legitimate expectation was based upon something specific: the promise made at Government House and repeated over the electronic media that the illegal immigrants would be "interviewed in due course" and that each case would be "treated on its merits". Similarly, in R. v. Liverpool Corporation (1972)2 QB 299, (a case much relied on by counsel in Ng Yuen-shiu) there was a clear undertaking given to the existing holders of tax licences that the corporation would not grant any increased number of licences without first hearing representations from persons interested, including the applicant, the Liverpool Tax-Fleet Operators Association. In Oeilly v. Mackman (1983)2 AC 237, the legitimate expectation was based upon the clear practice, applicable to all prisoners, that they would be granted the maximum remission, permitted by rule 5(2) of the Prison Rules, of one third of the sentence if no disciplinary award of forfeiture of remission had been made.

31. Is the "legitimate expectation" allegedly aroused by the government's stated policy capable of being formulated in any precise way in this case? What are "strong or powerful humanitarian reasons"? How strong is "strong"?

32. Assume, for instance, that Hong Kong were to be overwhelmed by a great influx of illegal immigrants, as has happened in the past. Is the Director not at liberty to make removal orders under section 19(1)(b)(ii) and, after the period of appeal to the Immigration Tribunal has passed, to cause such orders to be forthwith executed? Is the Director bound to pause in the process, in order to entertain "applications" for the exercise of his discretion under section 13? Is he bound to consider every case on "humanitarian grounds" before deciding to repatriate the illegal immigrants to China? Having regard to the scheme of the Ordinance, this appears to me an extravagant proposition. Section 13 says nothing about "applications" by illegal immigrants on humanitarian or any other grounds. Section 13 is an empowering provision; it would be an odd thing if, because of the current "humanitarian" practice of the Director, his future powers of action have become emasculated. A court would hesitate, in construing a statute, to give it such effect.

33. However, we need not decide this issue here because, on the facts of the two cases, the Director plainly did carefully consider the humanitarian grounds put forward.

Ground (ii)

34. The "irrationality" upon which counsel for the appellants relies is sometimes referred to by lawyers as "Wednesbury unreasonableness". This is a shorthand way of expressing the proposition of Lord Greene MR in Associated Provincial Picture Houses v. Wednesbury Corporation (1948)1 KB 223. It might be worthwhile recalling how the proposition was put, at p.229:

".... a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and is often said, to be acting "unreasonably". Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v. Poole Corporation [1926] Ch. 66 at 90 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another."

35. How do these considerations apply in the two cases before us? There are, in the circumstances of both families, strong humanitarian grounds for saying that Madam Chan in CA 168/92, and Madam Hui and LAU Chung-yiu in CA 169/92, should be allowed to remain in Hong Kong. As to which of these two cases is stronger, from the humanitarian point of view, it is hard to say. This illustrates, perhaps, the inherent difficulty in making a judgment in such matters. There are of course, almost invariably, unknown factors. For instance, if the crunch really came and these people were returned to China, how much hardship would they actually suffer? How much support would members of their families in China actually provide? To what extent would they be discriminated against, having left China without an exit permit?

36. Here, the Deputy Director in his respective affidavits simply stated that after reviewing the papers he had come to the view that "no strong or powerful humanitarian grounds" had been made out by the respective applicants. Counsel's complaint is that he has not "condescended upon any particulars", nor has he given examples of how strong and powerful humanitarian grounds have been made out in other instances. Mr. Martin Lee Q.C. counsel for the appellants argues as follows:

(i) Good administration requires that when a Government authority resists an application for judicial review, it should play with all the cards face upwards on the table: see Sir John Donaldson MR in R. v. Lancashire County Council, ex parte Huddleston (1986)2 AER 941 at 945g.

(ii) Here, the Deputy Director has simply made a bald assertion that no strong or powerful humanitarian grounds have been made out. That, says counsel, begs the question; if there were other considerations, such as, for instance, the fear of a great influx of immigrants if the policy was not tightly applied, these have not been stated by the Deputy Director; it must therefore be inferred that there are no such considerations which could justify the decision.

37. Attractive though these propositions may sound, in the skilful way in which they were put, I must reject them. It must always be borne in mind that it is for the Director and not for the courts to administer the scheme of immigration control under the Ordinance. If "irrationality" is the ground of challenge, the threshold is very high. It only applies to a decision which is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" : per Lord Diplock in CCSU v. Minister for the Civil Service (1985) AC 374 at 410G.

38. The expression "Wednesbury unreasonableness" or "irrationality" is used so often by lawyers that it may take on a life of its own, separated from its roots. It is worth recalling the genesis of this ground of attack. For it to succeed the court must be able to infer that the decision-maker must have made a mistake of law by, for instance, straying wholly outside the scope of the statute or taking into account totally irrelevant considerations: see Lord Diplock in CCSU at 410H.

39. Obviously, if the facts set up by the applicant in his challenge were such as to raise prima facie a case of irrationality, to the high degree indicated in CCSU v. Minister for the Civil Service (supra), then the authority concerned cannot hide behind a wall of silence. The difficulty facing the appellants in this case is that, in my judgment, they have not come within striking distance of setting up a case of "irrationality". The Director of Immigration has, unquestionably, a most difficult task to perform. The Government of Hong Kong is by any standards a "humane" government and, as a matter of common-sense, there must be many cases in Hong Kong where "mainland brides" have married Hong Kong permanent residents and have given birth to children in Hong Kong having the right of abode here. In all cases, reasons will be advanced for saying that the applicant will suffer hardship if repatriated and some will be more cogent than others. Should the Director, in every case, accept without question the assertions of the applicants concerning their family circumstances in their native villages? Is the Director to make inquiries in every instance into the kind of family support which the applicants might be able to expect back home if he or she were repatriated?

40. The Government stated policy, since 1980, is that all illegal immigrants should be returned unless there are considered to be strong or powerful humanitarian reasons for doing otherwise in individual cases. The exercise of discretion under section 13 is only made in exceptional cases. How wide this should be is a matter entirely for the judgment of the Director.

41. In my view, it would not have advanced the appellant's cases in any way if the Director had come forward with individual examples. Simply comparing the circumstances of the two cases before us illustrates the point. They are certainly not the same. In Madam Chan's case, she has been abandoned by her husband and, if she were repatriated to China, it is most unlikely that her husband would join her there or that he would help in maintaining her in any way. Her case cannot be classified as that of a "split family" in any real sense of that expression. If she goes, most likely her two young children will go with her. The circumstances are rather different in Madam Hui's case. Her husband originally came from China and only migrated to Hong Kong in 1980 when he was 24. Might he, for the sake of keeping the family together, if his wife and eldest child were repatriated, decide to relocate back to China? This is perhaps not a question which any one could, at this stage, answer : not even Madam Hui. Her case was put to us, quite understandably, as that of a "split family". Of the two cases before us, which is stronger on humanitarian grounds? Reasonable opinion could easily differ on a point as nebulous as that.

42. The decision of the Director in these two cases may be said to be hard. But then, he has a very difficult function to discharge. In my judgment, the judge was right when he said : "It can never be suggested that it is a decision no reasonable authority can make".

Conclusion

43. For the reasons stated above, I would dismiss these two appeals and make an order that the appellants' costs should be taxed under the Legal Aid Regulations.

Mortimer, J.:

44. I have had the opportunity of considering the judgment of Litton J.A. I entirely agree with its reasoning and conclusions and I have nothing to add. I also would dismiss this appeal.

Godfrey, J:

"Give me your tired, your poor, your huddled masses, yearning to breathe free ... Send these, the homeless, tempest-toss'd to me"; such were the lofty ideals which (once) inspired the immigration policy of a great country.

45. But Hong Kong is not a great country.

46. Hong Kong is a pimple on the backside of China. China contains (I use the word advisedly) a population of countless millions; and Hong Kong simply cannot support an immigration policy similarly inspired, as its recent experiences with the Vietnamese boat people demonstrate. Immigration from the mainland to Hong Kong must of necessity be strictly controlled; and it is.

47. It is the policy of the Hong Kong Government to preclude all immigration from the mainland to Hong Kong save such as may be permitted under arrangements for the time being in force. The arrangements currently in force allow for the immigration from the mainland to Hong Kong of some 75 people per day, selected by the Chinese Government. This falls far short of the number who would like to emigrate from the mainland and settle here. Those who would like to settle in Hong Kong may have all sorts of moral claims for wishing to be allowed to do so. But, no matter how compelling their claims may be, if they make their way into Hong Kong illegally (i.e., otherwise than under the arrangements to which I have referred), they are liable to be returned to the mainland with no avenue of appeal, judicial or otherwise, open to them to challenge on its merits a decision on the part of the Director of Immigration to send them back. As this court has more than once pointed out, an illegal immigrant "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 [Immigration] Ordinance to authorise him to remain ..." See Ng Yuen-shiu v. A.G. [1981] HKLR 352, per McMullin V-P at p.360; and see also the Director of Immigration v. Ho Ming Sai, 9th February 1993 (unreported), per Kempster J.A. at p.7 of his judgment.

48. Despite this, there will, obviously, be some cases the circumstances of which are so compelling that any right-thinking person would immediately recognise the immigrant, although an illegal immigrant, to have a strong case, on humanitarian grounds, to be allowed to remain here.

49. The cases of the illegal immigrants whose appeals are presently before this court are, in my judgment, undoubtedly such cases.

50. Now (as one would expect) the Director of Immigration will give, and has let it be known that he will give, sympathetic consideration to the case of any illegal immigrant who can show strong or powerful humanitarian reasons why he or she should be allowed to remain here. If, having given that consideration to the illegal immigrant's case he is of the opinion that the illegal immigrant should, indeed, be allowed to remain here, he is empowered, by s.13 of the Ordinance, to allow him or her to do so. When he exercises this power, he is not enforcing the immigration policy of the Hong Kong Government. He is sanctioning an exception to it.

51. I would think it impossible, in the light of the two authorities to which I have referred earlier in this judgment, to contend that s.13 imposes a duty on the Director of Immigration to give any consideration at all, sympathetic or otherwise, to an appeal (I use the word in an informal sense) by an illegal immigrant to be allowed to remain here. But it is not necessary so to pronounce in the present cases; for the Director of Immigration was and is content for present purposes to have his decisions not to exercise in favour of the appellants the power conferred on him by s.13 reviewed by the court according to the familiar principles on which the court will review the exercise of an administrative discretion. In other words, the Director of Immigration is, as I understood Mr McNamara's argument on his behalf, content to accept that if the decisions of the Director of Immigration can be shown to have been unlawful, improper, or irrational, then the court is entitled to review them and to require the Director of Immigration to exercise his discretion properly.

52. On that footing, I consider that the appellants here did make out a prima facie case for a judicial review. Each of them was able to point to evidence indicating that, after the date of the removal order affecting them, the Director of Immigration had given no consideration at all to their cases; and to evidence indicating that the Director of Immigration had concluded that there were no (not "no sufficient") humanitarian grounds to attract his sympathetic consideration. If this evidence had stood unanswered, I would for my part have been prepared on this basis to find that the decisions of the Director of Immigration were so flawed as to cry out for review. To my mind, a finding that these appellants had demonstrated no strong or powerful humanitarian grounds to be allowed to remain here would have been a finding so outrageous in its defiance of logic and of accepted moral standards that no sensible person who had applied his mind to the question could properly have arrived at it; and a decision based on a failure or refusal to consider material placed before the Director of Immigration between the date of the removal order and the date on which he was asked to exercise his discretion in favour of the appellants under s.13 would have been so unfair as to justify the same sort of criticism.

53. But, if I may be pardoned for saying so, a prima facie case is only a prima facie case; that is to say, it is a case which it is open to the other side to rebut, if it can.

54. In the present case, the Director of Immigration has been prepared to assume the burden of rebutting the appellants' case. In my judgement, he has succeeded. I am now quite satisfied, on the evidence as a whole, that, as a matter of fact, the Director of Immigration did consider the material placed before him after the date of the removal orders affecting the appellants before he decided not to exercise in their favour the power conferred on him by s.13; and that he did recognise that there were strong and powerful humanitarian grounds which would have justified him in allowing the appellants to remain here, although, in the end, he did not consider that those grounds were in fact sufficiently strong to justify such a favourable decision.

55. That being so, the appellants' cases collapse. They came before the judge with a good arguable case (which was, no doubt, why they were given leave to apply for a judicial review); but the Director of Immigration has succeeded in rebutting it.

56. For these reasons, I agree that these appeals must be dismissed. But I cannot part from the case without first expressing my profound unease at the failure of our system to provide any right of appeal for an illegal immigrant with a moral claim to remain here but whose claim has been rejected by the Director of Immigration.

57. Under the Immigration Ordinance, s.53F, an "Immigration Tribunal" is constituted to which an immigrant against whom the Director of Immigration has made a removal order may appeal on the grounds that he enjoys a right of abode in Hong Kong; or had a right to land in Hong Kong; or had at the date when the removal order was made the permission of the Director of Immigration to remain in Hong Kong: see s.53A. But otherwise there is nothing in s.53A or elsewhere which allows an illegal immigrant who claims to have a case to be allowed to remain here to have that case considered by the tribunal. His only hope is that he may succeed on an appeal to the sympathetic consideration of the same person who made the removal order against him in the first place. Of course, there is no one better placed than the Director of Immigration to administer the immigration policy of the Hong Kong Government; and no one who knows better the problems involved. But to give exclusively to the person whose duty it is to keep illegal immigrants out the power to decide whether in exceptional cases to let them in is not the best way of maintaining a fair balance between the interests of the individual on the one hand and the interests of good government on the other hand. Under the present arrangements, the Director of Immigration, no matter how diligently and fairly he seeks to discharge his duties, is placed in a very difficult position. The solution to the problem might lie in an amendment to the Immigration Ordinance giving a person against whom a removal order is made a right of appeal to the Governor-in-Council. No doubt careful consideration would have to be given to the formulation of the amendment; a discretion to temper justice with mercy needs to be confined within pretty narrow limits to ensure consistency over what is really not a justiciable issue at all, but a moral issue. This problem has been resolved in New Zealand (and, we were told, elsewhere). In New Zealand the legislation provides a right of appeal to the Minister of Immigration, on whom is conferred power to order that the appellant be not deported if the Minister is satisfied that, because of exceptional circumstances of a humanitarian nature, it would be unduly harsh or unjust to deport the appellant. Since this does seem to work, it might afford a useful precedent.

Representation:

Martin Lee, Q.C., Barry Barlow (M/S Wong Hui & Co.) for the Appellants in both appeals

John McNamara, Miss M. Datwani (Crown Solicitor) for the Respondent