Read the full judgment text of CACV 000179/1991 on BabelCite. This Court of Appeal judgment was delivered on 8 January 1992 before Sir Derek Cons VP, Kempster JA, Clough JA.
Administrative law – Immigration Tribunal – right of abode – removal orders – whether tribunal required to give reasons – Immigration Ordinance (Cap 115) ss 19, 53A, 53D, 53F, 53G – judicial review – natural justice – fairness – legal adviser's presence during deliberations – Children claiming right of abode in Hong Kong born in Hong Kong – burden of proof on appellants – Tribunal dismissed appeals on basis that minors not born in Hong Kong – Three minors, Lau Tak Pui, Lau Tak Miu and Yam Lai San, were the subject of removal orders under s 19 of the Immigration Ordinance. Each claimed the right of abode on the ground of being born in Hong Kong. The Immigration Tribunal, constituted under s 53F, dismissed their appeals after finding that the burden of proving birth in Hong Kong had not been discharged. Mayo J allowed the minors' applications for judicial review, holding that the reasons given were inadequate to comply with the requirement implied in s 53D that the Tribunal set out the facts found and the basis of its determination, and ordered rehearing before a differently constituted tribunal. The members of the Tribunal appealed to the Court of Appeal. The Court of Appeal (Cons VP, Kempster JA, Clough JA) allowed the appeal. The court held that, although the common law does not impose a general duty to give reasons (Public Service Board of New South Wales v Osmond), in the special circumstances of a fully judicial and non-domestic tribunal whose decisions affect liberty and residential and citizenship rights and from which there is no appeal, fairness requires outline reasons showing the issues addressed and the evidence relied on. The court further held that s 53D(1)(a), requiring the Tribunal to determine the appeal on the facts of the case as it finds them, impliedly obliges the Tribunal to articulate the facts it finds. In the present cases, the reasons given were sufficient: in Yam Lai San, the Tribunal addressed the inconsistencies in the parents' evidence and the father's claimed ignorance of the delivery; in Lau Tak Pui and Lau Tak Miu, the brief reasons identified the sole issue (place of birth) and the basis for the conclusion. The court further held that the presence of the Tribunal's Legal Adviser throughout the adjudicators' deliberations did not vitiate the proceedings, s 53G(2) permitting consultation with the legal adviser and the practice being analogous to that of justices' clerks in England. The Court of Appeal allowed the Tribunal's appeal, set aside the order of Mayo J, restored the Tribunal's determinations, and made an order nisi for costs in favour of the Tribunal members here and below.
Legal issues: Whether the Immigration Tribunal is required to give reasons for its determinations · Adequacy of the reasons given by the Tribunal in the two determinations · Whether presence of legal adviser during adjudicators' deliberations vitiated the proceedings
Outcome: Appeal allowed; order of Mayo J set aside; the Tribunal's determinations restored. Order nisi that the members of the Tribunal have their costs here and below.