RAZWAN AHMED v. REGISTRATION OF PERSONS TRIBUNAL AND OTHERS

HCAL 30/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTTITUTIOAL AND ADMINISTRATIVE LAW LIST

NO 30 OF 2011

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J U D G M E N T

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A. INTRODUCTION

1.  This is the applicant’s judicial review against the following decisions which effectively decided that he does not enjoy the right of abode in Hong Kong:

(1)    A decision dated 6 December 2005 by the Director of Immigration (“the Director”) (the 3^rd respondent herein) that the applicant’s claim to have the status of a permanent resident of the Hong Kong Special Administrative Region cannot be established (“the Director’s Decision”).

(2)    A decision dated 7 March 2006 by the Commissioner of Registration (“the Commissioner”) (the 2^nd respondent) that the applicant does not enjoy the right of abode in Hong Kong (“the Commissioner’s Decision”).

(3)    A decision dated 28 January 2011 by the Registration of Persons Tribunal (“the Tribunal) (the 1^st respondent), upholding the Commissioner’s Decision that the applicant does not enjoy the right of abode in Hong Kong (“the Tribunal’s Decision”).

2.  The applicant raises two grounds of judicial review, which I would later elaborate.  However, it is common ground that the central issue under this application is whether, on a proper construction, s 2(4)(a)(ii) of the Immigration Ordinance (Cap 115) (“the Ordinance”) requires that a person be “culpable” as to any contravention of his condition of stay in Hong Kong for such stay to be discounted as ordinary residence.

3.  To put this application in proper context, I need to set out the relevant background as follows.

B.      BACKGROUND

4.  Except as otherwise stated, the following background facts are not in dispute.

5.  The applicant was born in Dhaka, Bangladesh in 1967.

6.  He first came to Hong Kong on 30 January 1997. He was allowed to enter as a visitor.  His stay as a visitor was last extended to 26 September 1997.

7.  On 29 April 1997, the applicant and a Ms Tamang filed a Notice of Marriage in Hong Kong.  Ms Tamang was born in Hong Kong and is a permanent resident.

8.  Their marriage was solemnized at the City Hall Marriage Registry on 15 May 1997.

9.  On 16 May 1997, the applicant applied to the Immigration Department (“the Department”) for dependent status as a dependent spouse of Ms Tamang.  She sponsored the application. 

10.  After conducting interviews, the applicant’s dependent status application was approved in September 1997.  He was given a dependent visa to stay in Hong Kong on 8 September 1997.  His limit of stay was then further extended in 1998 and 2001 with the last extension up to 8 September 2004.

11.  Ms Tamang stated both in the Notice of Marriage and on the Certificate of Marriage in relation to her marriage with the applicant that she was a “spinster”.  But Ms Tamang was in fact married in Nepal to another person known as Mr Kaphle when she married the applicant in May 1997.  

12.  Ms Tamang’s case on this earlier marriage is this. She had an arranged marriage with Mr Kaphle in Nepal according to a social custom some time before January 1996, and this customary marriage was registered in Nepal on 16 January 1996.

13.  After that marriage, Ms Tamang then sponsored Mr Kaphle for a dependent visa to come to Hong Kong in 1996.  The certificate of registration of the customary marriage was filed with the Department in support of this application.  Mr Kaphle was subsequently granted the dependent visa to come to and stay in Hong Kong.

14.  Ms Tamang claimed that the relationship between her and Mr Kaphle was tumultuous and by 1997 had broken down.  Mr Kaphle then left the family home.

15.  In 2000, Ms Tamang applied for a court order in Nepal to recognise her divorce from Mr Kaphle on the grounds of abandonment. The relevant court granted an order on 17 January 2001 with the divorce taking effect from 18 October 1997.

16.  However, in July 2003, a Mr Kaphle applied to the Department for an extension of stay.  In his application, he named Ms Tamang as his wife but was unable to furnish the statement of family background of Ms Tamang.  Later, upon the Department’s inquiry, he confirmed that he had not been living with Ms Tamang for more than 2 years.  Mr Kaphle’s case before the Department was that it was Ms Tamang who had left him, and that it was he who had applied for divorce in Nepal.

17.  The Department says that it was only by then that it discovered that Ms Tamang was married to Mr Kaphle in Nepal in January 1996 and was the sponsor wife for Mr Kaphle’s dependent visa application and subsequent extension of stay applications. 

18.  Then, on 23 February 2004, the applicant applied for Verification of Eligibility for Permanent Identify Card (“VEPIC”) on the basis of paragraph 2(d) of the Schedule 1 to the Ordinance, that is that he had been ordinarily resident in Hong Kong for a period of not less than 7 years and had taken Hong Kong as his place of permanent residence. 

19.  On 8 September 2004, the applicant also applied for an extension of stay under his dependent visa.

20.  On 10 November 2004, the applicant and Ms Tamang attended an interview at the Department together with a solicitor.  They were then cautioned that they were under investigation for criminal offences[1], presumably in relation to the above earlier marriage of Ms Tamang.  They both declined to answer any questions although they asserted their innocence of any offence.

21.  On 8 December 2004, the General Investigation Team of the Department informed the applicant’s solicitors that no prosecution would be brought against the applicant or his wife and they were released from immigration bail.

22.  On 17 March 2005, the Director wrote to the applicant to inform him that it was the Director’s intention to vitiate the previous permissions of stay on the ground that the marriage between the applicant and Ms Tamang was null and void under s 20(1)(c) of the Matrimonial Causes Ordinance (Cap 179).

23.  After that, there had been correspondence exchanges between the applicant’s legal advisers and the Department between March and August 2005.  The applicant and Ms Tamang were then due to attend a meeting with the Department in early August 2005, but this was cancelled as Ms Tamang by then had left Hong Kong.  Later, in late August 2005, Ms Tamang’s brother informed the Department in writing that Ms Tamang was in the United States, but she confirmed that she had a happy married life with the applicant.

24.  On 23 September 2005, the applicant’s solicitors wrote to the Director making submissions on the Director’s aforesaid expressed intention to vitiate the applicant’s permissions to stay.  To the submissions, the solicitors also attached a declaration (which was however not made before a notary public in the United States) from Ms Tamang dated 25 August 2005.  In this, she explained her relationship with Mr Kaphle and that at the time when the applicant married her, the applicant did not know of her marriage to Mr Kaphle.

25.  On 29 November 2005, the Director wrote to the applicant: (a) vitiating all permissions to remain given to the applicant under the dependent visa from 8 September 1997[2] onwards, and (b) rejecting the application for an extension of stay.  The grounds for this decision were that:

(1)    The Director considered the marriage between the applicant and Ms Tamang to be null and void.

(2)    Consequent upon this finding, the director was of the view that the previous permissions given to the applicant to stay in Hong Kong were obtained by a false representation and/or deception that there was a valid and lawful marriage.

(3)    Such permissions of stay were therefore vitiated.

(4)    The Director was not satisfied that the applicant and Ms Tamang were genuinely living as husband and wife.

(5)    Further, there were no sufficient justifications warranting an exception to the dependent policy. 

26.  The applicant was required to leave Hong Kong by 21 December 2005.

27.  Then, on 6 December 2005, by way of the Director’s Decision, the Director rejected the applicant’s application for VEPIC.  The decision was premised on the basis that (a) his marriage with Ms Tamang was null and void and that all his permissions to remain were vitiated on 29 November 2005, (b) as a result, the applicant had breached his condition of stay which expired on 26 September 1997 (given under the last extension of stay of the visitor’s visa), (c) thus, pursuant to s 2(4)(a)(ii) of the Ordinance, the applicant’s said stay would not be treated as ordinary residence, and therefore he had not been ordinarily resident in Hong Kong for 7 years.

28.  Notwithstanding the Director’s Decision, the applicant filed an application for a Hong Kong permanent identity card on 7 March 2006.  By way of the Commissioner’s Decision, this was refused on the same day on the basis that there was no sufficient evidence to show that the applicant had the right of abode in Hong Kong.

29.  On 22 March 2006, he filed an appeal to the Tribunal against the Commissioner’s Decision. 

30.  The appeal was heard on 12 July and 6 August 2010.  By the Tribunal’s Decision, the Tribunal dismissed the appeal.  

C.      THE GROUNDS OF JUDICIAL REVIEW

31.  The applicant by way of this judicial review seeks to quash the Director’s Decision, the Commissioner’s Decision and the Tribunal’s Decision.  He has raised two grounds in support.  They are primarily related to the Tribunal’s Decision, which I would now explain and deal with below.

C1.  The Tribunal’s Decision

32.  Although the appeal before the Tribunal was related to the Commissioner’s Decision, as that decision was effectively based on the Director’s Decision, the applicant’s grounds of appeal as advanced also focused on the reasons of the Director’s Decision.

33.  In relation to that, the Tribunal formulated at paragraph 17 of the Tribunal’s Decision the following four issues in that appeal:

(1)    Whether the applicant’s permissions to stay as a dependent of Ms Tamang were obtained by false representation and/or deception as to the existence of a valid and lawful marriage.

(2)    Whether the applicant and Ms Tamang were genuinely living as husband and wife.

(3)    Whether Ms Tamang’s constitutional rights under the Hong Kong Bill of Rights Ordinance had been infringed for the Director in not providing the grounds for his decision that there were no circumstances to justify an exception to the policy in granting dependent visa.

(4)    Whether the Tribunal has a direction not to treat such permissions as of no effect.

34.  The Tribunal rejected all the grounds of appeal, and upheld the Director’s conclusions (and thus the Commissioner’s Decision) under the first three issues above.

C2.    1^st ground of judicial review - error of law

35.  The first ground of judicial review relates to the Tribunal’s Decision under the first issue.  For this, in summary, the Tribunal held at paragraphs 40‑41 of the Tribunal’s Decision as follows:

(1)    The Director’s Decision was correct that the applicant’s permissions to remain in Hong Kong under the dependent visa since 8 September 1997 were vitiated on the ground that such permissions were obtained by false representation and/or deception as to the existence of a valid and lawful marriage.

(2)    Thus, the applicant’s stay in Hong Kong after 26 September 1997 was in breach of the condition of stay[3].  Under s 2(4)(a)(ii) of the Ordinance, that period of stay beyond 26 September 1997 should not be regarded as ordinary residence.  Further, s 2(4)(a)(ii) of the Ordinance did not require the proof of the applicant’s knowledge of the fact that the permission to land was unlawfully obtained.

(3)    As a result, the applicant had not had 7 years of uninterrupted ordinary residence in Hong Kong by the time he applied for the permanent identity card.  The applicant did not enjoy any right of abode in Hong Kong.  The Commissioner’s Decision was correct in rejecting his application.

36.  Mr Ross for the applicant submits that the Tribunal committed an error of law in concluding that, under s 2(4)(a)(i) of the Ordinance, it is not necessary for the Department to show knowledge on part of the applicant of the breach of the condition of stay.  Mr Ross contends that, on a proper construction of s 2(4)(a)(i), it would only operate if the applicant is “culpable” in the contravention of the condition of stay.

37.  This ground involves therefore the question of the proper construction of s 2(4)(a)(ii). To understand Mr Ross’ arguments, it is necessary to set out the relevant parts of 2(4)(a)(i) and (ii) as follows:

“(4) For the purposes of this Ordinance, a person shall not be treated as ordinary resident in Hong Kong –

(a) during any period in which he remains in Hong Kong -

(i) with or without the authority of the Director, after landing unlawfully; or

(ii) in contravention of any condition of stay; or

(iii) …”

38.  Mr Ross submits that on a proper construction of s 2(4)(a)(ii) (together with some other provisions of the Ordinance), it is objectively clear that the section should be read to require the proof of a knowledge element.  As I understand it, the basis of Mr Ross’ submissions on such a construction can be summarised as follows:

(1)    Other than the length of stay, conditions of stay under a visa may include a prohibition on taking up employment, establishing or joining a business, or becoming a student.  All these conditions can only be breached by a knowingly intentional act by a visa holder.  Thus, a condition limiting the length of a person’s stay should (further submitted by Mr Ross) be interpreted the same way, in that the person must know they are overstaying. 

(2)    Further, s 2(2)(b) of the Ordinance provides that a person shall not be prevented from being regarded as landing unlawfully for the purposes of the Ordinance only because he is not guilty of an offence of landing unlawfully under s 38(1)(a) of the Ordinance.  As this provision (ie, s 2(2)(b)) shall only apply to s 2(4)(a)(i), by implication (says Mr Ross), that curtailment of residence under subparagraph (ii) of s 2(4) is not possible without proof of some forms of mens rea.

39.  Alternatively, Counsel further submits that if the wording of s 2(4)(a)(ii) is ambiguous, then he relies on some Australian and New Zealand authorities[4] to show that similarly worded provisions in those jurisdictions require the proof of an element of mens rea.

40.  With respect, I am not persuaded by these arguments.  My reasons are as follows.

41.  First, in my view, the purpose of s 2(4)(a) of the Ordinance is clear from its words.  This is a provision simply to provide for the various situations and scenarios the existence of which would disentitle someone’s relevant period of stay in Hong Kong to be regarded as ordinary residence in Hong Kong.  The existence or not of such a situation or scenario is an objective fact itself.  This is not a provision to establish the underlying scenario or situation.  Thus, the examples cited by Mr Ross to say that the breaches per se of the conditions would require the knowledge of the person in breach of them are in my view inappropriate for and irrelevant to the construction of this section.

42.  Thus, in Sun Jie v Registration of Persons Tribunal[5], Rogers VP observed at paragraphs 10 and 11 that s 2(4)(a)(ii) of the Ordinance was only to emphasise the point that ordinary residence must entail presence in that place and if a person cannot lawfully be in that place he cannot reside there, still less can he be ordinarily resident there. 

43.  Second, the reference to s 2(2)(b) of the Ordinance does not assist Mr Ross any further.  This section provides as follows:

“(2) References in this Ordinance to landing in Hong Kong unlawfully are references to landing in or entering Hong Kong in contravention of this Ordinance, the repealed Immigration (Control and Offences) Ordinance or the repealed Immigrants Control Ordinance, and for the avoidance of doubt it is hereby declared that no person shall be held not to have landed unlawfully-

(a) …

(b) on the ground only that he is not guilty of an offence under subsection (1) of section 38 in respect of paragraph (a) of that subsection.”

44.  S 38(1)(a) of the Ordinance provides as follows:

“(1) Subject to subsection (2), a person who-

(a) being a person who by virtue of section 7 may not land in Hong Kong without the permission of an immigration officer or immigration assistant, lands in Hong Kong without such permission; or

(b) …

shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 3 years.”

45.  S 38(1)(a) thus creates the offence whereby someone has landed in Hong Kong without the permission of an immigration officer.

46.  All s 2(2)(b) of the Ordinance says is therefore simply that, for the purposes of the Ordinance, whether someone is to be regarded as “landing in Hong Kong unlawfully” does not require the proof of the offence under s 38(1)(a). In other words, the references in the Ordinance (including by way of s 2(4)(a)(i) to “landing in Hong Kong unlawfully”) has a wider meaning than committing an offence under s 38(1)(a) of the Ordinance. 

47.  Read as such, quite to the contrary to Mr Ross’ submissions, this fortifies my above view that the references to the various scenarios and situations under s 2(4)(a) of the Ordinance are references to the objective fact of the existence of those scenarios but not the underlying proof of the breaches or offences themselves.

48.  Mr Ross also says, for the purpose of the analysis as to the requirement of the proof for a breach, there is a distinction between the situation where a person enters Hong Kong unlawfully and one (as the applicant) where he has entered Hong Kong lawfully in the first place but has since say overstayed.

49.  In contending that such a distinction is one without substance, Mr Chan for the Commissioner and the Director rightly refers me to the recent case of Raboy v Commissioner of Registration[6].  One of the issues to be considered in that case is whether the applicant had been ordinarily resident in Hong Kong over the period of time where she had overstayed, although she lawfully entered into Hong Kong in the first place as a domestic helper.  Lam J concluded that under s 2(4)(a)(ii) of the Ordinance, the applicant’s said relevant period of stay was in breach of a condition of stay and shall not be regarded as ordinary residence.  His Lordship then further rejected a similar argument (as now advanced by Mr Ross) that, for the purpose of construing s 2(4)(a)(ii), a distinction should be drawn for cases involving persons entering Hong Kong unlawfully and those who have overstayed.  The learned judge said at paragraphs 47‑49 as follows:

“47. Section 2(4)(a) of the Immigration Ordinance provides that a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong,

‘(ii) in contravention of any condition of stay’.

If a person was given permission to stay up to a date, any stay beyond that date would be in contravention of the condition of stay.

48. There is no challenge to the constitutionality of this statutory provision and there cannot be any challenge in the light of the clear statement of Lord Scarman in Ex p Shah.

49. Ms Li, in her oral submissions, invited this court to distinguish this line of authorities because, unlike some other cases, Mrs Domingo entered Hong Kong lawfully.  In my judgment, this is not a valid distinction.  As a matter of principle, as submitted by Mr Chan, the question is addressed towards the nature of the stay in Hong Kong instead of the entry into Hong Kong.  I fail to see why there should be a distinction in this regard between an overstayer (who stayed beyond the period permitted in his condition of stay granted upon his entry) and a person who had sneaked into Hong Kong without any permission to enter though the relevant statutory provision governing the latter would be Section 2(4)(i) as opposed to (ii).  In Mohammed Hasham, the applicant also entered Hong Kong lawfully.”

50.  I respectfully adopt Lam J’s above observations to reject Mr Ross’ submissions on drawing such a distinction.

51.  For these reasons, I conclude that the meaning of s 2(4)(a)(ii)of the Ordinance is clear and its application does not require the proof of culpability or knowledge of the person whose ordinary residence is in question. 

52.  Therefore, strictly speaking, it is unnecessary for me to go into Mr Ross alternative submissions relying on various Australian and New Zealand authorities. 

53.  But for completeness, I would simply say that these authorities can be easily distinguished on the bases that they are related to the relevant statutory provisions in the respective jurisdiction concerning the creation and thus conviction of the relevant offences (albeit in immigration contexts) or the finding of discrimination.  These are very different considerations from s 2(4)(a)(ii) of the Ordinance, which as I say above, provides for the objective situations where a person shall not be treated as ordinary resident in Hong Kong.  In my view, there are no valid analogies to be drawn between these authorities and s 2(4)(a)(ii) of the Ordinance.

54.  In this regard, Mr Chan (for the Director and Commissioner) is again correct in pointing out that Hong Kong courts have repeatedly emphasised that Hong Kong’s immigration context is unique and one in which a particularly restrictive approach is justified at the legislative, policy and discretionary levels. See MA v Director of Immigration[7]and Li Nam Han v Director of Immigration[8].

55.  For the above reasons, the Tribunal committed no error of law in concluding that the applicant has not acquired the necessary 7 years of ordinary residence in Hong Kong since, by virtue of s 2(4)(a)(ii) of the Ordinance, he shall not be treated as ordinary resident in Hong Kong beyond 28 September 1997.

56.  This ground of error of law therefore fails.

C2.    Ultra Vires

57.  Although entitled “ultra vires” in the Amended Form 86 and in the applicant’s skeleton, it appears that this ground is related to a challenge saying that the Tribunal has failed to take into account of a relevant factor in one of its conclusions. 

58.  As I understand it, the arguments run as follows:

(1)    The Tribunal found that Ms Tamang was fraudulent or reckless in sponsoring the applicant’s application for the dependent visa.

(2)    At the same time, before the Tribunal was the unchallenged fact that Ms Tamang had at different occasions supplied to the Director (a) a copy of her marriage certificate with Mr Kaphle in sponsoring his dependent visa, and (b) her marriage certificate with the applicant in support of the applicant’s dependant visa application. 

(3)    Since supplying both certificates to the Director is an act inconsistent with Ms Tamang being fraudulent or reckless, this was a relevant factor that the Tribunal should have taken into account in considering whether she was thus fraudulent or reckless. 

(4)    However, in coming to the conclusion that Ms Tamang was fraudulent or reckless, the Tribunal had acted “ultra vires” in failing to take into account the above unchallenged fact.

(5)    The Tribunal’s Decision should thus be set quashed and the matter remitted back to the Tribunal for reconsideration as to whether Ms Tamang was fraudulent or reckless, and if not, whether the Director was wrong in not allowing the applicant’s dependent visa to stand.  This is so because the mere fact that she was not validly married to the applicant would not automatically disentitle him from obtaining a dependent visa.

59.  In my view, there is nothing in this ground.

60.  The question of whether the Tribunal had wrongly failed to take into account of a relevant factor must be looked at against the particular relevant material issue determined by the Tribunal.

61.  As mentioned above, the Director’s Decision in vitiating all previous permissions of stay granted to the applicant under the dependent visa was based on the following main reasons:

(1)    That the permissions were obtained by a false representation or deception as to the existence of a valid and lawful marriage.

(2)    That the Director was not satisfied that the applicant and Ms Tamang were genuinely living as husband and wife; and

(3)    That the Director could not find sufficient justifications in the present case warranting an exception to the policy on the granting of dependent visa.

62.  In light of these reasons, the first question decided by the Tribunal in the Tribunal’s Decision was “Whether permissions to stay were obtained by false representation and/or deception”.

63.  Under this question, the Tribunal had at paragraphs 18 to 38 of the Tribunal’s Decision looked at and considered all the evidence and arguments presented before it to decide whether the applicant’s dependent visa was obtained by a false representation or deception.

64.  For the present purposes, it is relevant to set out the Tribunal’s reasoning at paragraphs 36 to 38 of the Tribunal’s Decision as follows:

“36. Whether or not polygamy is permitted under Nepalese law does not alter the legal consequence of section 20(1)(c) of the Matrimonial Causes Ordinance, Cap 179. The law in section 20(1) is strict and does not contain any exception or proviso. Ms Tamang was wrongfully or being recklessly in contracting the marriage with the appellant while her marriage with Mr Kaphle remained undissolved. The Appellant’s marriage was therefore null and void ab initio.

37. The fact that the appellant has a valid and lawful marriage with Ms Tamang was a material factor in permitting his immigration status to change from visitor to dependant. The Tribunal considers that this fact is of a decisive character and is not simply likely to influence the decision of ImmD in permitting the change of status. The Tribunal understands that there is a possibility that the appellant has no knowledge of Ms Tamang’s concealment of her first marriage at the time when he applied for change of status. However, the Tribunal has to follow the Yu Ah Wing case and so even if the appellant was an entirely innocent party, the permissions for him to stay in Hong Kong as a dependant were still considered to be obtained by false representation as to the existence of a valid and lawful marriage. One of the appellant’s argument that ImmD should be in full possession already of the facts regarding Ms Tamang’s first marriage is irrelevant here. The outcome is that same as long as ImmD discovered this false representation. Whether the appellant is allowed to remain staying in Hong Kong after the discovery of this false representation shall fall within the ambit of discretion of the Director of ImmD.

38. Apart from ‘false representation’, the ‘deception’ element is not obviously found in the case of the appellant.  However, considering Ms Tamang’s case as a whole, her concealment of her first marriage had, to a certain degree, constituted a fraud or deception indirectly on the appellant’s application for change of status.  Having considered all the facts and circumstances of the case, the Tribunal concludes that ImmD and the respondent have proved their case on a standard higher than that of a balance of probabilities.”

65.  Thus, after concluding at paragraph 36 of the Tribunal’s Decision that the applicant’s marriage with Ms Tamang was null and void ab initio (a conclusion which is not challenged herein) because of bigamy, at paragraph 37, the Tribunal further considered the applicant’s submission that the Department had in its possession all the relevant facts regarding Ms Tamang’s first marriage to Mr Kaphle (which must mean the possession of the two marriage certificates submitted by Ms Tamang at the two different occasions).  In relation to this, the Tribunal said as follows:

“…One of the [A]ppellant’s argument [sic] that [the Department] should be in full possession of the facts regarding Ms Tamang’s first marriage is irrelevant here. The outcome is the same as long as [the Department] discovered this false representation [that there was a valid marriage]. Whether the Applicant is allowed to remain staying in Hong Kong after the discovery of this false representation shall fall within the ambit of discretion of [the Director].”

66.  Thus, the crucial and relevant material issues looked at and determined by the Tribunal here were whether (a) there was a false (in the sense that it was untrue) representation of a valid and lawful marriage between the applicant and Ms Tamang, and (b) the effect of such a untrue representation.  It was then the Tribunal’s conclusion that, once there was such a false (that is, untrue) representation, its effect was that the applicant’s marriage was null and void, and whether the applicant could still remain in Hong Kong was a matter for the Director’s exercise of discretion.  This conclusion is not and cannot be challenged under this application.

67.  It was in this context that the Tribunal regarded the fact that the Department had in its possession the fact regarding Ms Tamang’s first marriage was irrelevant to the question of the effect of such a false representation.  This observation, in my view, was correct.

68.  Although the Tribunal did go on to say at paragraph 38 of the Tribunal Decision that Ms Tamang’s case “constituted a fraud or deception indirectly” on the applicant’s application for change of status, this in my view is not relevant to the above material issues. 

69.  The Tribunal therefore had not acted “ultra vires” as submitted by the applicant.

70.  There is thus also no question of the Tribunal committing any error recognised by public law in not referring the decision back to the Director to exercise his discretion afresh.

71.  This ground of judicial review must also fail.

D.      CONCLUSION

72.  For the above reasons, the applicant is unsuccessful in this judicial review.  I would dismiss the same and make an order nisi that he should pay the costs of the 2^nd and 3^rd respondents, to be taxed if not agreed.  Given that the 2^nd and 3^rd respondents have a joint representation, there is effectively only one set of costs.

73.  Unless any of the parties applies to vary it by summons, the order nisi shall be made absolute 14 days from today.