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HCAL000058/1998
HCAL 58/1998
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 58 OF 1998
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CHAN TO FOON & Others |
Applicants |
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THE DIRECTOR OF IMMIGRATION |
1st Respondent |
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THE SECRETARY FOR SECURITY |
2nd Respondent |
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Coram: Hon Hartmann J in Court
Dates of Hearing: 13 and 14 December 2000; 16 and 23 January 2001
Date of Handing Down Judgment: 11 April 2001
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J U D G M E N T
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Introduction
1. There are four Applicants in these proceedings for judicial review who are all members of the same family. They consist of the mother, the father and their two young children. The Applicants challenge a number of decisions made by the 1st and 2nd Respondents. Those decisions concern an order for the removal of the mother (the 1st Applicant) from Hong Kong back to the Mainland where she was born and raised. The mother is not a permanent resident of Hong Kong. However, her three immediate family members - her husband and her two children - all have the right to reside permanently here.
2. The Applicants, as a family, are of humble means. The father (the 2nd Applicant) works as a chef which means that he is away from the home for much of the day. The children both attend primary school but are free in the afternoons when they must be supervised. The family live in a housing unit with the father's own parents both of whom are retired and suffer from ill health. Indeed, the father's mother has in the past year spent much of her time in hospital suffering from respiratory failure, recurrent chest infections and depression. A social welfare report written in August of last year speaks of the 1st Applicant, the mother, in the following terms:
"At present, [the mother] takes up an important role in taking care of the children and the household chores. She has been a back-up support of the husband and the parents-in-law as the husband was fully occupied by his job and hospital visits to his mother. Regarding the strong need of care of the elderly parents-in-law and young children, it is recommended that [the mother] stay in Hong Kong for the well being of the whole family."
3. Clearly the removal of the mother from Hong Kong will have a profound effect on the family; that is, on the husband and the two young children. However, the 1st Respondent, the Director of Immigration, who is responsible for enforcing Hong Kong's immigration laws and policies, found that there were insufficient humanitarian circumstances to warrant a departure from his settled policy of ordering the removal of all persons whom I will, for convenience, call illegal immigrants.
4. The mother, who lacks the right to remain in Hong Kong without the permission of the Director, acknowledges that she has only a limited ability to challenge the decisions which have resulted in her order for removal. However, as I have said, the remaining Applicants are all permanent residents and, expressed broadly, it is their contention that the decisions resulting in the imposition of the removal order are unlawful because they have ignored their rights. Such rights, it is argued, are contained in a number of international conventions which have been applied to Hong Kong. These conventions acknowledge that the family unit is the 'natural and fundamental group unit of society' deserving of the widest possible protection, especially where there are children involved. The conventions acknowledge the special protection that must be afforded to children, their best interests always being a primary consideration.
5. It is contended on behalf of the Applicants that Hong Kong's commitment to these rights has created a legitimate expectation that they will, when relevant, be given due consideration by public authorities. In this instance, such rights are directly relevant and they apply to persons who may legitimately seek their protection ; namely, the members of the family who are Hong Kong permanent residents. However, the Director has failed to give consideration to the protection afforded to the father and the two children under the conventions. Indeed, the Director has stated that he is not required to take into account the protections afforded by the conventions and accordingly has not done so in respect of the three Applicants. It is argued that this failure on the part of the Director is unlawful. In the result, all the decisions which have resulted in the order for the mother's removal must be quashed and the matter remitted to the Director for reconsideration in accordance with law.
6. It is accepted by the Applicants that the Director is vested with what I will call a 'general' discretion in terms of the Immigration Ordinance, Chapter 115 ('the Ordinance'), more particularly section 13 of the Ordinance which reads:
"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."
7. This discretion is employed when the Director considers that there are exceptional humanitarian reasons to warrant an exception to the policy. It is, however, a purely administrative discretion vested in the Director which may encompass the circumstances of the illegal immigrant and/or his or her family members.
8. The Applicants argue, however, that the existence of this general discretion is irrelevant or insufficient. It is their contention that in addition to this general discretion, the Director must have particular regard to the fundamental human rights protected by the international conventions which have been applied to Hong Kong.
9. The core questions, therefore, are, first, is the Director obliged, when exercising his discretion in immigration matters, and when children or immediate family members who are permanent residents will be affected by the exercise of that discretion, to give due consideration to the specific protections afforded to those persons by applicable international conventions? Second, if the Director is so obliged, will that create a legitimate expectation enforceable at law?
A brief history
10. The 1st and 2nd Applicants; that is, the mother and the father, were married in the Mainland in March 1992. The mother, as I have said, has been born and raised in the Mainland and has no right of permanent residence in Hong Kong. The father, however, has been born in Hong Kong and therefore possessed that right.
11. In late 1992, the mother was permitted to come to Hong Kong on what is commonly called a 'two way permit'. This allowed her to remain in Hong Kong for a limited period of time. While in Hong Kong on this visit, the first child of the marriage was born. She is Tse Wing Yau who is now eight years of age, a permanent resident of Hong Kong.
12. In or about April 1993, the mother returned to the Mainland with her baby daughter. The father travelled to the Mainland from time to time to be with his family and in late 1994 the second child of the marriage was born. He is Tse Kee On who is now six years of age.
13. In 1995, permission was given for the son to be brought to Hong Kong so that he could take up permanent residence here. The mother applied for similar permission but it was refused.
14. Accordingly, in or about August 1996 the mother came to Hong Kong again on a two way permit. When she entered, the Hong Kong immigration authorities gave her permission to remain until October of that same year. However, now that the family was united in Hong Kong, the mother resolved not to return and remained here after the date by which she was due to return. She was thereby in breach of the law and approximately a year later, in November 1997, she was arrested. The following month she pleaded guilty in the Magistracy to an offence under the Immigration Ordinance, Chapter 115 ('the Ordinance'); namely, to remaining in Hong Kong without the permission of the Director. She was sentenced to three months imprisonment suspended for two years.
15. Shortly before her conviction, in early December 1997, the Director served on the mother an order for her removal from Hong Kong. It appears that the order was issued in terms of section 19(1) of the Ordinance on the basis that, in the opinion of the Director, the mother was a person who had remained in Hong Kong without his permission.
16. The execution of the order would have meant that the mother would have to return to the Mainland on her own. This would result in a fracture of the family unity. For this reason, the mother sought to persuade the Director to exercise his discretion to allow her to remain in Hong Kong. When that was unsuccessful, the mother pursued a more formal channel of redress and, in terms of section 53A of the Ordinance, lodged an appeal against the issue of the removal order. The appeal was heard by the Immigration Tribunal in May 1998. That too was unsuccessful.
17. In terms of section 53D of the Ordinance, the Immigration Tribunal has a limited jurisdiction. It may only allow an appeal if it is shown that an appellant does, in fact, have right of abode in Hong Kong or some other legitimate right to land or remain here. However, in appropriate cases the Tribunal has taken upon itself the discretion to recommend to the Secretary of Security that, in the exercise of her administrative discretion, she may allow an unsuccessful appellant to remain in Hong Kong. It is, I believe, indicative of the large number of distressing cases that come before the Tribunal that, in respect of the mother's appeal, it found nothing to warrant such a referral. It was, in fact, the view of the Tribunal that the mother's case shared the same features as many other such cases.
18. In May 1998, after the dismissal of the appeal, the Director notified the mother that the removal order would be executed. The mother sought legal aid. The Director agreed to suspend the removal order so that the mother may pursue other legal remedies and in August 1998 these judicial review proceedings were instituted by the Applicants.
19. The original hearing of this matter was set down for July 1999 but shortly before that date the Director said that fresh consideration would be given to the case. The hearing was therefore adjourned. However, in late June 1999, upon further consideration, the Director came to the view that his earlier decisions were correct and should be maintained.
20. In these proceedings, therefore, three decisions of the Director are challenged; his decision of December 1997 to issue and serve the removal order; his decision, after the dismissal of the mother's appeal, to execute the removal order and, finally, his decision of June 1999 to maintain his earlier decisions.
21. When these proceedings were originally instituted, there was only one Respondent; that is, the Director. It appears, however, that after the mother's appeal to the Immigration Tribunal had been dismissed, her solicitors wrote to the Director asking that the grave difficulty of her personal circumstances be given consideration and that she be allowed to remain in Hong Kong to care for her family. That letter was treated as a non-statutory appeal (made under Article 48(13) of the Basic Law) and was referred to the Secretary for Security for consideration. The matter was duly considered by the Secretary for Security who, in terms of a letter dated July 1999, informed the mother that the decisions of the Director would not be upset and that accordingly the order for her removal remained.
22. As a result of this further decision, the Secretary for Security was joined to these proceedings as the 2nd Respondent.
An outline of the Director's immigration policy
23. The focus of challenge in these proceedings is the immigration policy of the Director (in so far as it relates to the mother) and the manner in which that policy is administered; that is, without due consideration being given to the fundamental human rights protected by the conventions applied to Hong Kong.
24. In an affirmation filed in support of the Respondents' case, Mr Mak Kwai Yin, an Assistant Director of Immigration, described the reason why Hong Kong must impose strict immigration controls:
"Hong Kong is a small landmass with about 7 million people and some of the highest population densities on earth. The policy of its Government with the full support of the legislature and its residents is one of immigration control. It legally allows residents of the Mainland of China to enter Hong Kong for residence at a quota of 150 persons a day. It also allows tourists and visitors with valid travel document to legally enter and stay for short periods and then depart.
The policy of immigration control recognizes that there are many who wish to enter Hong Kong and to reside and work in Hong Kong. Its relatively high per capita income and living standards make it an attractive destination. By way of illustration, about 12,170 illegal immigrants and 21,270 overstayers from the Mainland of China were found in 1999 and 15,611 overstayers were repatriated in the same year."
25. In respect of immigration pressures from the Mainland, Mr Mak said that a substantial number of persons having right of abode in Hong Kong maintain close family ties in the Mainland. As a result, a 'population of considerable size' in the Mainland is constantly seeking to come to Hong Kong to join their families here. In respect of this matter, Mr Mak said:
"In order to maintain immigration from the Mainland into Hong Kong at levels that will not impose excessive strain on local public and social services including medical services and education resources, the current policy allows immigrants from the Mainland to take up residence in Hong Kong at a quota of 150 persons a day. The Hong Kong Government and the relevant authorities in the Mainland of China have also reached a consensus that residents from the Mainland seeking residence in Hong Kong must apply to the Mainland authorities for an Exit Permit for Travelling to Hong Kong and Macau ("One-way Permit"). For residents of the Mainland who wish to enter Hong Kong for visit, they should apply for an Exit-entry Permit for Travelling to and from Hong Kong and Macau ("Two-way Permit") from the Mainland authorities. Holders of Two-way Permits may be allowed to enter Hong Kong for short visits for a period not exceeding 3 months. This Two-way Permit system together with Hong Kong residents entering the Mainland to visit their families is an important scheme which remedies to a certain extent the split up of families.
In view of the present policy governing entry for residence and visit respectively for residents of the Mainland, to allow Two-way Permit holders to stay in Hong Kong for longer than the usually allowed period will upset the balance which the current policy tries to maintain. It is also inequitable to other Two-way Permit holders and to those following the normal procedure and awaiting One-way Permits."
26. In respect of the Applicants, Mr Mak commented that, from his experience, their predicament was typical rather than exceptional. He amplified this by saying:
"Taking care of Hong Kong born or Hong Kong resident children and close elderly relatives was not, in view of all the policy considerations stated above, a sufficient ground for exceptional consideration of stay and there are a lot of similar cases. If this was to be regarded as an exceptional case, other cases would have to be judged in the same way. Our policy of immigration control with regard to Mainland Hong Kong families would be frustrated and undermined. This would not be in the public interest."
27. As to the international conventions protecting the rights of children and the family, Mr Mak confirmed that the Director did not believe himself to be bound by these conventions. This is due to the fact that, where necessary, reservations have been entered in respect of immigration matters: an acknowledgment of Hong Kong's particular immigration problems. Mr Mak stated that, while the Director was not obliged in law to take such personal circumstances as family unity into account nevertheless (in accordance with the general discretion vested in him) -
"... as a matter of practice, where circumstances permit, the Director considers humanitarian representations. But the Director only makes a decision which is contrary to policy where there are compelling and exceptional humanitarian circumstances. There will be few such cases. Any other approach would compromise the effectiveness of necessary policy." [my emphasis]
28. Finally, by way of summary, Mr Mak said:
"The right of the Hong Kong permanent resident to freely bring a spouse from outside (whether from the Mainland or overseas) for residence and consequently freely to raise a united family in Hong Kong has not been possible for a very long time in view Hong Kong's immigration problems. It follows that while the best interests of the children will always be a primary consideration and will always be taken into account, they must be set against the public interest needs of our immigration policy. If it were otherwise, there would be no protection from illegal immigration and overstaying. The need for consistency in decision making is both imperative and obvious. In the cases of Mainland split families, the One Way Permit system provides for family unity in the medium to long term." [my emphasis]
29. As I perceive it, what arises from this statement by Mr Mak is that the best interests of affected children (and no doubt their place in the family) will be considered in determining whether 'compelling and exceptional humanitarian circumstances' exist to allow the Director to make an exception to his policy of removing all illegal immigrants. However, the interests of affected children will be weighed against the broader public interest and their interests will not be considered in the context of the particular protections afforded to children (or their families) under the international conventions applied to Hong Kong.
The conventions relied upon by the Applicants
30. But, as I have said, it is the Applicants' case that, in exercising his discretion under the Ordinance, the Director is obliged (when it is relevant to do so) to give consideration to the specific protections afforded to Hong Kong permanent residents by three international conventions. They are the International Convention on Civil and Political Rights ('the ICCPR'); the Convention on the Rights of the Child ('the CRC') and the International Covenant on Economic, Social and Cultural Rights ('the ICESCR'). The acknowledgment of various rights contained in these international instruments include the following:
(i) Art 23(1) of the ICCPR:
"Family is the natural and fundamental group unit of society and is entitled to be protected by society and the State."
(ii) Art 10(1) of the ICESCR:
"The widest possible protection and assistance should be accorded to the family, which is the fundamental group unit of society ..."
(iii) Art 3(1) of the CRC:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
And in Art 10(1) -
"In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner."
31. These three conventions have been applied to Hong Kong. Two of them, however, the ICCPR and the CRC, have been applied subject to reservations.
32. Two conventions - the ICCPR and the ICESCR - had been applied to Hong Kong prior to the resumption of sovereignty. But, upon resumption, Article 39 of the Basic Law made the following provisions:
"The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article." [my emphasis]
33. It will be seen that only those provisions of the conventions which have been 'applied' to Hong Kong shall remain in force. In short, the existing reservations do not fall away; they remain. It will also be seen that the provisions contained in the conventions may be prescribed by law.
The reservations applicable to the ICCPR and the CRC
34. The ICCPR was first applied to Hong Kong when it was a dependent territory of Great Britain. It was applied, however, subject to a reservation in respect of immigration matters. The wording of that reservation is drafted as follows:
"The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, the acceptance of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories." [my emphasis]
35. The ICCPR has, in fact, been incorporated into Hong Kong's domestic legislative, being embodied in our Bill of Rights. But that, in my view, has not altered the position brought about the registration of the reservation to the international convention itself. In this regard, section 11 of the Bill of Rights Ordinance effectively applies the terms of the international reservation to our domestic law. The section reads:
"As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation."
36. The second convention in respect of which a reservation has been applied concerning matters of immigration is the CRC. The Peoples' Republic of China ratified the CRC in 1992 subject to reservations. In June 1997, it informed the Secretary General of the United Nations that the reservations entered by it would also apply to Hong Kong from the date of resumption of sovereignty. The reservations include the following:
"The Government of the Peoples' Republic of China reserves, for the Hong Kong Special Administrative Region, the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the Hong Kong Special Administrative Region of those who do not have the right under the laws of the Hong Kong Special Administrative Region, and to the acquisition and possession of residentship as it may deem necessary from time to time."
37. In summary, both the ICCPR and the CRC have been applied to Hong Kong subject to the reservation that, expressed broadly, our immigration laws may continue to be applied even if they conflict with or are in any way incompatible with those conventions. The Bill of Rights contains an exception to the exact same effect. In my judgment, the voice of those responsible for entering into the international instruments could not be clearer. The manifest instruction to the Director is that, in applying Hong Kong's immigration laws, he is not bound by the provisions of the ICCPR or the CRC. In light of this, I confess I fail to see how it can be argued that the Applicants have a legitimate expectation that the Director will (and must) take those same international instruments into account.
38. I believe that my view of the effect of the reservations finds support in a relatively recent decision of the English Court of Appeal in R. v. Secretary of State for the Home Department, ex parte Gangadeen and another [1998] 2 FCR 96. There were two appellants. Both had earlier been found to be illegal immigrants and were to be removed from England. Each had a child; one was expected to accompany the parent but the other (with a right of residence in England) was not. The issue on appeal was whether it was incumbent on the Home Secretary, in considering removal of the illegal immigrants, to give preference to the best interests of their children by reason of the provisions of European Human Rights Convention and also the CRC. Hirst LJ, giving the leading judgment of the Court, said the following:
"They [the Appellants] also rely on art 3 of the United Nations Convention on the Rights of the Child which provides:
'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration ...'
They submit that art 8 as interpreted by the decisions of the European Court of Human Rights, together with the United Nations Convention, should directly inform the Home Secretary as to the proper mode of application of the policy."
39. In respect of the CRC, Hirst LJ decided the matter in the following short passage:
"As already noted the appellants also relied on the United Nations Convention 1989, from which I have already quoted the relevant passage.
However, in seeking to bring this provision directly into play in the present case they were confronted with the insuperable difficulty that when in 1991 the United Kingdom ratified this convention such ratification was subject to the following reservation:
'.... (c) The United Kingdom reserves the rights to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time.'
This distinguishes the position in the United Kingdom from that in, for example, Australia and New Zealand where the United Nations Convention has been directly applied (see Minister of Immigration and Ethnic Affairs v Teoh (1994) 128 ALR 353 and Tavita v. Minister of Immigration [1994] 2 NZLR 257)."
40. Hirst LJ distinguished the position in the United Kingdom (where a reservation to the CRC had been registered) to that of Australia and New Zealand (where it had not). On that basis he distinguished the legal position in the United Kingdom from that which was found to apply to Australia and New Zealand by reason of two landmark decisions in those jurisdictions; namely Teoh (Australia) and Tavita (New Zealand). Both those cases, to which I will later make more detailed reference, speak of the legitimate expectation that arises from the ratification of (or accession to) international human rights conventions. These two cases form the foundation of the Applicants' contentions. But, as Hong Kong has had reservations applied to it of the same kind referred to by Hirst LJ, I would also distinguish Teoh and Tavita on the same grounds.
Recognition of Hong Kong's immigration problems by the Hong Kong courts
41. In his submissions made on behalf of the Respondents, Mr Marshall made reference to numerous authorities concerning immigration matters. The Basic Law allows for the rights and freedoms of Hong Kong residents to be prescribed by law. Accordingly, if legitimate expectations have arisen from the international conventions, the scope of those expectations must be seen as part of what I will call our existing legal landscape. That, I believe, must be so.
42. In the Court of Appeal decision of In re Hai Ho Tak and Cheng Chun Heung [1994] 2 HKLR 202, the Court was seized with the issue of determining the meaning and intent of section 11 of the Hong Kong Bill of Rights:
"As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation."
43. In describing the plight of the Appellants in that case, Mortimer JA said:
"Each is a potentially tragic case. They follow a long line of harrowing immigration cases in which illegal immigrants with close family members living in Hong Kong have been ordered to return to China. Often this is the consequence of a spouse with a right of abode in Hong Kong marrying a partner without such a right. Their children born in Hong Kong have a right of abode, those born elsewhere do not."
44. He continued as follows:
"The importance to Hong Kong's survival of a strict immigration policy has been noted in many cases, both in this Court and below. Without it Hong Kong would be swamped with those who wish to enjoy its economic benefits. Even if close family ties were accepted as a valid reason for allowing illegal immigrants to remain, unacceptably large numbers would be involved.
It falls to the Director of Immigration to implement the immigration policy. Therefore, when an illegal immigrant from China is arrested, he is normally returned. The Director exercises his powers of removal under s.19 of the Immigration Ordinance (Cap.115) (the Ordinance). The person concerned has a right of appeal tot he Immigration Tribunal under s.53(a) of the Ordinance. Absent a successful appeal the Director's recognised policy is to enforce the removal order unless on "strong humanitarian grounds" he exercises his discretion to allow the person to remain in Hong Kong under s.13 of the Ordinance.
It has been recognised by this Court in many previous cases that the implementation of the policy is for the director and the decision whether or not to exercise his discretion under s.13, is for him and him alone. Provided that he takes this decision fairly and according to law the courts will not interfere by giving leave for it to be judicially reviewed."
45. This, in my opinion, clearly sets in context the difficulties facing the Director and the broad powers given to him in the exercise of his statutory responsibilities to set and administer a policy in respect of immigration matters.
46. As to the question of recognising the protections granted by the Bill of Rights but doing so within the context of Hong Kong's immigration imperatives, in the same case Godfrey JA said the following:
"But I would add that, even absent s.11, I would not have been prepared to hold that the Director of Immigration was precluded by the Ordinance from making and implementing an otherwise lawful decision merely on the ground that the result of the decision might be to separate members of a family. Like all other human rights, the rights of the family under the Ordinance are not absolute. We must be zealous in upholding individual rights under our Bill of Rights. But at the same time we must ensure that disputes as the effect of the Bill are not allowed to get out of hand. The Bill of Rights will be debased and devalued if it is repeatedly invoked in cases to which its abstract concepts have really no application. The court must hold the balance between the individual and society as a whole, and maintain a sense of proportion in doing so. It should not impose unrealistic standards on the Hong Kong Government's attempts to resolve the difficult and intransigent problems which Hong Kong faces." [my emphasis]
47. In light of these authorities, and bearing in mind the continued immigration difficulties referred to by Mr Mak in his affirmation, I believe I am obliged to consider the Applicants submissions in the present case in the context of those difficulties. As Godfrey JA said: "The court must hold the balance between the individual and society as a whole, and maintain a sense of proportion in doing so."
48. In Ho Ming Sai & Others v. The Director of Immigration [1994] 1 HKLR 21, a case concerning illegal immigrants from the Mainland to Hong Kong who surrendered to the Immigration Department and had removal orders made against them, the Director declined to exercise his discretion under section 13 of the Immigration Ordinance so as to authorise them to remain in Hong Kong. Godfrey J (as he then was) stated that:
"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 s.13 of the Immigration Ordinance confers it, exclusively, on the Director of Immigration."
"... 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."
"... 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."
49. In Lau Kong Yung v. Director of Immigration [1999] 3 HKLRD 805, Li CJ (in the Court of Final Appeal) summed up the position in respect of illegal immigrants in the following terms:
".... First, an illegal immigrant, whether he entered illegally or has contravened a condition of stay, does not have, as a general rule, a right to a hearing, conducted fairly and in accordance with the rules of natural justice, before a removal order is made against him ..."
"Secondly, in relation to such a person the Director has no duty to consider humanitarian grounds in considering the making of a removal order against him. But he can take such grounds into account if he thinks it appropriate in the case in question. This is consistent with the position under s.13 ..."
"Further, if what is suggested is that the Director should consider the exercise of some other statutory discretion (apart from ss.13 and 19) to enable such a claimant to stay in Hong Kong temporarily or permanently, the position would be similar to that under ss.13 and 19 as regards humanitarian grounds."
50. Of course, the two authorities to which I have referred concern illegal immigrants. They do not concern the immediate family members of those illegal immigrants who are permanent residents of Hong Kong and who may therefore seek the protection of Hong Kong's laws. Ms Ng, who appeared on behalf of the Applicants, argued that it is fundamentally wrong in immigration matters to place them in the same camp as illegal immigrants. They are separate under law. At the same time, however, they are invariably profoundly affected by the Director's decisions and their predicament should (and must in law) be given due consideration by the Director.
51. This, of course, begs the initial question: do the reservations to the two conventions, the ICCPR and the CRC (and the exception to our domestic law) apply equally to permanent residents of Hong Kong as they do to illegal immigrants? If they do, it seems to me that the rights propounded by Ms Ng will be greatly restricted if not entirely expunged.
To whom the reservations apply
52. I have earlier said that the ICCPR has been incorporated into Hong Kong's domestic legislation by its embodiment in our Bill of Rights. I have also made reference to section 11 of the Bill of Rights Ordinance which effectively applies the terms of the reservation to the Convention to our domestic law.
53. In respect of section 11, the Court of Appeal held in Hai Ho Tak and Cheng Chun Cheung (supra) that the section not only prevents illegal immigrants from seeking the protection of the Bill of Rights but also prevents family members who enjoy the status of permanent residence from seeking to have their rights protected under the Bill. In this regard, Godfrey JA said:
"In my opinion, the effect of s.11, on its true construction, is this.
1. The Ordinance may not be invoked so as to affect, as regards any person not having the right to enter and remain in Hong Kong, any immigration legislation governing his entry into, stay in or departure from Hong Kong, or the application of any such legislation.
2. This is so no matter who it is that invokes the Ordinance or on what ground he invokes it.
3. In particular (of course) the Ordinance may not be invoked by the person not having the right to enter and remain in Hong Kong. That being so, it would be the height of absurdity if it could be invoked by someone else, e.g., another member of his family. If the person not having the right to enter and remain in Hong Kong could not himself invoke the provisions of the Ordinance relating to his rights as a member of the family, it cannot make sense to allow other members of the family the right to invoke those provisions in relation to their rights as members of the same family. And s.11 should not be construed so as to attribute a non-sensical intention to the legislature."
54. Mortimer JA agreed fully with this reasoning. In so doing, he expanded on the matter by saying:
"The effect of the section upon the rights of close family members of an illegal immigrant in these circumstances cannot be stated so simply. For the most part the Bill is the enactment of the international covenant into domestic legislation ipsissima verba. Words which were intended as the principles which domestic legislation should precisely implement have themselves become the domestic legislation. The consequence is that many indeterminate and undefined rights are given, which absent future defining legislation, will come before the Hong Kong courts for construction for many decades.
Examples of the rights sought to be relied upon are in articles 14 and 19 which read:
"Article 14
(1) No one shall be subjected to arbitrary or unlawful interference with his ... family ...
(2) Everyone has the right to the protection of the law against such interference ...
Article 19
(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."
However, if these general rights have any meaning at all it would be reasonable to assume that the removal of a 6 1/2 years old child from his mother, father and three elder siblings (Hai's case) and the removal of the mother from her husband and five children (Madam Cheng's case) involve a seriously arguable infringement of these rights of their family members. Nevertheless, if reliance upon these rights to challenge the decision to remove them is permissible, this would be a strange if not absurd result of the legislation. The person most affected by the removal order would be unable to challenge the decision for interference with his rights under the Bill whereas those closely but less affected would be able to do so and in appropriate circumstances have the decision struck down.
The principle that the court will interpret statutory provisions so as to avoid absurdity arises only if the provision is ambiguous. In my judgment, however, s.11 of the Bill is not obscure or ambiguous, the meaning is clear. In reaching this decision, I have had the advantage of seeing the relevant part of Godfrey, J.A.'s judgment on this pint in draft. I am indebted for his reasoning. I agree with his construction." [my emphasis]
55. Mortimer JA concluded:
"Section 11 limits the rights under the Bill which may be invoked if there is an exercise by the Director of Immigration of his powers under the Ordinance in respect of a person without a right to enter or remain. This circumstance makes it necessary to interpret the section strictly in accordance with its plain meaning and effect. With respect to the submissions advanced below, the interpretation of this section does not lend itself to elaborate argument. Section 11 is an essential limitation on the general provisions of the international covenant brought about by the reality of Hong Kong's geographical position and economic success. It follows the United Kingdom's reservation to the international covenant's application to Hong Kong.
In my judgment central to the meaning of the section are the words:
"this Ordinance does not affect any immigration legislation .. or the application of any such legislation"
However, the section applies to only part of the immigration legislation and its application; that is to legislation governing entry, stay or deportation of persons with no right to enter or remain. But thus limited, the provision is of general effect, so that all citizens, whether illegal immigrants or others such as close family members, are prevented from invoking their rights in the Bill in the circumstances of these cases. There is no basis upon which the close family members can seek leave to apply for judicial review of the relevant decisions." [my emphasis]
56. In my judgment, these principles effectively decide the issue before me. If section 11 prevents Hong Kong permanent residents from invoking their rights under the Bill of Rights in cases regarding illegal immigrants then the reservations applied to the ICCPR and the CRC must have the same effect. I do not see how in our municipal courts those reservations - which have almost the same language and, in my view, the same intent - can be read differently. The reservations have been applied in recognition of the 'reality of Hong Kong's geographical position and economic success' and apply equally to illegal immigrants and to their family members who are permanent residents of Hong Kong.
The issue of legitimate expectation
57. In matters related purely to municipal law, a legitimate expectation can provide a sufficient interest to enable a person who cannot point to the existence of a substantive right to nevertheless obtain the leave of the court to apply for judicial review. That legitimate expectation, however, must be based upon some clear and unambiguous representation. Such a representation may consist of a specific promise made by a public body, a code of practice that has developed or, in the present case - so it is argued - by Hong Kong's formal accession to a set of humanitarian principles contained in applicable international conventions. In this latter regard the concept of legitimate expectation is founded on the two authorities to which reference has earlier been made; namely, Teoh and Tavita; authorities which have been approved in principle in the United Kingdom. Having said that, however, the principles of legitimate expectation pronounced in those two cases have not been free of criticism. In an article in The Law Quarterly Review [January 1996] vol 112, Michael Taggart of the University of Auckland wrote:
"Up until now the case law on legitimate expectations has required an express promise, undertaking, representation or published policy statement to found an expectation which procedural fairness will protect by way of requiring a hearing before the expectation can be disappointed. To equate ratification of a treaty with a "promise" or "representation" to the people of Australia is a large leap, as McHugh J demonstrates in his careful analysis of the case law (pp. 444-446). As Lord Keith of Kinkel noted recently in R v. Secretary of State for the Home Department, ex p. Fire Brigades Union [1995] 2 W.L.R. 464 at p. 468:
"the doctrine of legitimate expectation cannot reasonably be extended to the public at large, as opposed to particular individuals or bodies who are directly affected by certain executive action"."
58. But if it is accepted that ratification of (or accession to) a convention does give rise to a legitimate expectation, that legitimate expectation must be a reflection of what is promised. A reservation, in my view, is a device employed to make it clear that there is no promise. In short, legitimate expectations do not arise in a vacuum, they arise, if at all, in the context of the international instrument.
59. In Teoh (Minister of Immigration and Ethnic Affairs v. Teoh (1994-1998) 183 CLR 273) the headnote reads:
"(Per Mason CJ, Deane, Toohey and Gaudron JJ) Although a Convention ratified by Australia does not become part of Australian law unless its provisions have been validly incorporated into municipal law by statute, the ratification was an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers would act conformably with the Convention. It is not necessary that a person seeking to set up such a legitimate expectation be aware of the Convention or personably entertain the expectation. It is enough that the expectation is reasonable in the sense that there are adequate materials to support it." [my emphasis]
60. Toohey J (at page 302), in respect of Article 3 of the CRC, described the emergence of a legitimate expectation in the following terms:
"The touchstone in Art 3 is "actions concerning children"... The refusal of an application for resident status to a parent of dependent children living in Australia, with the direct consequence of deportation for the parent and the breaking up of the family, is an action concerning children.
It follows that while Australia's ratification of the Convention does not go so far as to incorporate it into domestic law, it does have consequences for agencies of the executive government of the Commonwealth. It results in an expectation that those making administrative decisions in actions concerning children will take into account as a primary consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected an opportunity to argue against such a course. It may be said that such a view of ratification will have undue consequences for decision-makers. But it is important to bear in mind that we are not concerned with enforceable obligations, but with legitimate expectations, and that there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation."
61. In my judgment, a reading of Teoh makes it clear that the legitimate expectations arise only when they have not been specifically curtailed by the executive or the legislature.
62. In Tavita v. Minister of Immigration [1994] 2 NZLR 257, a case concerning the removal of a visitor to New Zealand who married a New Zealand resident and had a daughter born in New Zealand, the Court of Appeal of New Zealand, consisting of Cooke, Richardson and Hardie-boys JJ, adjourned the hearing in order to enable the Government to consider the ICCPR and the CRC in the light of the rights of the child. The court held that:
"Whatever the merits or demerits of either of her parents, she is not responsible for them, and her future as a New Zealand citizen is inevitably a responsibility of this country. Universal Human Rights and International Obligations are involved."
63. While the principle was enunciated in Tavita, it was not further expanded in order to define its limits.
64. I am satisfied that the authorities on legitimate expectation in this field accept that by lawful action such expectations may be curtailed or expunged. I am satisfied that the reservations to the ICCPR and the CRC are certainly binding on Hong Kong's municipal courts. Those reservations make it manifest that, in what I have broadly termed immigration matters, those making administrative decisions need not take into account the protective provisions contained in the conventions. In short, in my judgment, the reservations pre-empt (in respect of all persons) emergence of any legitimate expectation in matters concerning illegal immigrants.
But are the reservations to be recognised?
65. Ms Ng has referred me to the Vienna Convention on the Law of Treaties, particularly to Article 21(1)(a). The relevant portion of Article 21(1) reads:
"A reservation established with regard to another party in accordance with articles 19, 20 and 23 -
(a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and
(b) modifies those provisions to the same extent for that other party in its relations with the reserving State."
66. I accept that reservations in treaties are confined to their stated limits and must not be read more expansively. But, with respect, I fail to see how this advances the Applicants' cause. Assuming for a moment that the Vienna Convention applies to conventions and covenants as well as treaties, it appears that Article 21 relates to other parties to a treaty; that is, to states parties and not to individual citizens in the state registering the reservation. I do not see therefore that Article 21 is (directly or indirectly) of relevance to the Applicants' challenge in this case. But even if I am wrong in that regard, questions of validity are matters for the other states parties to the conventions, they are not for our municipal courts. In this regard, see, for example, R v. Secretary of State for the Home Department, ex parte Brind and others [1991] 1 AC 696 in which Lord Bridge of Harwich said (at page 747):
"It is accepted, of course, by the applicants that, like any other treaty obligations which have not been embodied in the law by statute, the Convention is not part of the domestic law, that the courts accordingly have no power to enforce Convention rights directly and that, if domestic legislation conflicts with the Convention, the courts must nevertheless enforce it."
67. See also Halsbury's Laws (4th Edition) volume 18, paragraph 1414 headed: 'Acts of State outside the courts' jurisdiction' -
"An act of state is essentially an exercise of sovereign power and hence cannot be challenged, controlled or interfered with by municipal courts. Its sanction is not that of law, but that of sovereign power, and the municipal courts cannot question it: it is a catastrophic change, constituting a new departure, and the municipal law has nothing to do with the act of change by which the new departure comes about. Hence the courts have no jurisdiction to question the validity of an act of state, and an individual cannot rely upon an act of state in order to found a cause of action."
The ICESCR
68. So far, detailed consideration has been made of the two conventions in respect of which reservations have been entered on behalf of Hong Kong. But no such reservations have been entered in respect of the ICESCR. Why is that? In my view, the reason must lie in the nature of this convention (entitled a covenant) and the manner in which its nature may be contrasted with the ICCPR and the CRC.
69. In Chan Mei Yee and another v. Director of Immigration HCAL 77/1999, my brother Cheung J referred to several academic texts in analysing the nature and binding effect of the ICESCR. In this regard, he referred to the text, Human Rights in the World, 4th Edition, by Robertson and Merrills in which, he said, the authors state that -
"... the ICESCR is what is known as a promotional convention, that is to say, it does not set out rights which the parties are required to implement immediately, but rather lists standards which they undertake to promote and which they pledge themselves to secure progressively, to the greatest extent possible, having regard to their resources. As already indicated, this difference in the obligation results from the very nature of the rights recognised in this Covenant. The authors point out that a comparison of ICCPR and ICESCR reveals a major difference in the way their respective provisions are formulated. The rights contained in the ICCPR are stated in the classic form "everyone has the right to ..." or "no one shall be subject to ...". In ICESCR, the articles adopt a different formulation, usually "the State parties to the present covenant recognize the right ..." or "the State parties to the present covenant undertake to ensure ...". In other words, an undertaking or a recognition by States rather than the affirmation of a right inherent in the individual as such." [my emphasis]
70. A second text referred to was International Human Rights in Context (1996) by Henry J Steiner in which at page 284 the author writes:
"... The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the Covenant on Civil and political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d'etre of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question." [my emphasis]
71. In my view, Article 2(1) of the Covenant illustrates both its 'promotional' and 'progressive' elements. The article reads:
"Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures." [my emphasis]
72. Hong Kong may therefore recognise the rights protected by the ICESCR. But they are rights which, having regard to this Territory's existing social difficulties, may only be guaranteed progressively; that is, as and when those difficulties are overcome. Matters of immigration, as our courts have recognised, remain a major problem. If unchecked, it is clear that, in the informed opinion of the Director, the problem will threaten the Territory's social fabric. As a result, in respect of immigration matters, the Government of Hong Kong is unable at this time to guarantee the rights protected in the Covenant when they relate to matters of immigration. I believe it may be taken that it is for this reason that no reservation was entered in respect of the ICESCR: it is an aspirational covenant, not one that creates absolute obligations.
73. A further text referred to by Cheung J was The International Law of Human Rights by Paul Sieghart in respect of which Cheung J commented:
"In respect of ICCPR, the author stated that the obligations imposed on the States are absolute and immediate. They are absolute because they are not expressed as being limited either by the resources available to the State, or by reference tot he means to be employed in performing them. They are immediate in that each State is bound to take the necessary steps to secure the human rights and fundamental freedoms concerned from the moment the treaty comes into force for that State. In respect of the ICESCR, the obligations are qualified rather than absolute in that they are limited to the maximum of the resources available to the State parties to appropriate means. The obligations are also progressive rather than immediate as they call for steps to be taken with a view to achieving progressively the full realization of the rights concerned."
74. Having considered the nature of the ICESCR, Cheung J concluded:
"The way in which the ICCPR and ICESCR are formulated clearly supports the argument that the latter covenant is promotional in nature. However, even though it is promotional in nature, it does not mean that the ICESCR cannot be used as a framework in which government decisions or discretions are to be considered."
75. To this I would add only that at this time, in light of Hong Kong's continuing immigration problems, if public administrators consider the terms of the ICESCR, they do so in an aspirational sense; namely, as to what it is hoped can be achieved in the future. As such, I do not see that such consideration can give rise to a legitimate expectation rooted in the present.
76. Nor, in my opinion, can the ICESCR be looked at in isolation. If must be considered in conjunction with the ICCPR, the CRC, the Bill of Rights and also the decisions of our municipal courts. In respect of the two international conventions where immediate and absolute rights are created (the ICCPR and the CRC) reservations have been entered in respect of immigration matters. To suggest that nevertheless the ICESCR creates legitimate expectations of the sort relied upon by the Applicants in the face of those other two instruments and the Basic Law is, I believe, artificial.
77. Ms Ng has argued that the Covenant is not simply promotional and that it does create immediate and absolute rights which vest in the individual. In this regard, she referred to a document containing commentary on the Covenant by the United Nations High Commissioner on Human Rights, particularly to paragraph 9 which, in relation to 'legal or judicial remedies', specifically refers to administrative remedies whereby -
"... those living within the jurisdiction of a State party have a legitimate expectation, based on the principle of good faith, that all administrative authorities will take account of the requirements of the Covenant in their decision-making ..."
78. But while the UN High Commissioner on Human Rights is an authoratitive commentor, it must be remembered that it is no more than an interpretation, akin to the academic texts, and does not, in my view, undermine (or radically alter) the aspirational nature of the Covenant. It may, therefore, be said that certainly administrative authorities will give due consideration to the requirements of the Covenant in respect of immigration matters but, in accordance with the progressive nature of the Covenant, that will occur when the social imperatives permit.
79. In my view, what must be remembered in respect of immigration matters is that Hong Kong's reservations to the three conventions (and the exception to the Bill of Rights) do not offend peremptory norms. No reservation is made similar to a right to reserve child labour or torture or to continue to deny minorities the right to enjoy their own culture or profess their own religion or speak their own tongue. Of course, the predicament facing the Applicants is distressing. But the orders of removal made by the Director do not, I believe, involve an interference with the fundamental right to a family life. Instead they prevent the 1st Applicant from living with her husband and children without interruption in Hong Kong. The director's policy allows for visits by the mother and there does exist a system for the orderly and fair re-uniting of families, a system devised by the Mainland and Hong Kong authorities that attempts to balance public needs with the natural and legitimate desire of people married to Hong Kong residents to be able to live here with their spouses.
Conclusion
80. For the reasons given in the body of this judgment, I am satisfied that the Director was not obliged, in respect of the Applicants, to give due consideration to the protections afforded by the ICCPR, the CRC and the ICESCR. The application of those international instruments to Hong Kong has not given rise to any legitimate expectation on the part of persons having right of permanent residence in Hong Kong that such protections will be considered by the Director.
81. Although it was not argued directly, I am satisfied that the decisions made by the Respondents in respect of the 1st Applicant cannot be quashed as being perverse or irrational. They lie well within the ambit of the Director's discretion.
82. Accordingly, the application for judicial review must be dismissed.
83. In respect of costs, I have not heard from the parties. But in principle it seems that costs must follow the event. There will therefore be an order nisi for costs in favour of the Respondents, that order to be made final within thirty days of the handing down of this judgment unless an application is earlier made to argue the matter.
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(M J Hartmann) |
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Judge of the Court of First Instance |
Representation:
Ms Margaret Ng, instructed by Messrs Pam Baker, for the Applicants
Mr William Marshall and Mr Dick Ho Chiu-pang, Government Counsel, instructed by Secretary of Justice, for the Respondents
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