HARJIT KAUR AND ANOTHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL47/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.47 OF 1999

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J U D G M E N T

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THE APPLICATION

1. This is an application for judicial review pursuant to Order 53, RHC. Leave so to apply was granted by this court on 23 April 1999, the Notice of Motion being issued on 7 June 1999.

2. The applicants, who bring this application by their mother and next friend, Madam Mohinder Kaur, are her two daughters, Harjit and Gurjeet, now aged 16 and 18 respectively. Their complaint is that the Director of Immigration has made a decision, upheld on appeal by the Secretary for Security, and further upheld upon their petition to the Chief Executive, to decline their application for change of immigration status to enable them to take up residence in Hong Kong as dependants of their mother, who herself is now a Hong Kong resident. How did this come about?

THE FACTUAL BACKGROUND

3. Harjit and Gurjeet Kaur are Indian nationals born on 14 October 1983 and 11 November 1981 respectively. Their parents, who married on 11 June 1980 in India, were divorced on 25 August 1996, and it was agreed that the children would be kept by their mother who would be responsible for maintaining them. I am told that the husband was not required to pay any amount of maintenance to Madam Kaur at any time in the future.

4. In December 1996, the applicants' mother came to Hong Kong alone to join her father, Mr Singh Atma. Mr Singh Atma was born in Hong Kong in 1936. He is and was at all material times a Hong Kong permanent resident with a Hong Kong Identity Card No.XXXXXXX(X).

5. Before she left India, Madam Kaur entrusted the care of the applicants to a relative in India. She was permitted to take up residence in Hong Kong, and has been permitted to remain in Hong Kong until 15 August 2001. She was also allowed to take up employment in Hong Kong, and was issued a Hong Kong Identity Card on 16 August 1997.

6. In July 1998, in view of the age of the relative who was taking care of these two girls in India, Madam Kaur arranged for the applicants to come to Hong Kong to reunite with her, and on 7 July 1998 they duly arrived in Hong Kong. They travelled on their Indian passports.

7. Upon arrival, the two girls were permitted to remain in Hong Kong as visitors until 21 July 1998. However, on 13 July 1998, they applied for change of their immigration status to take up residence in Hong Kong as dependants of their mother.

8. It is at this point that the present case has its genesis. On 3 December 1998, the Director of Immigration refused their application for change of status on the ground that he was not satisfied that their mother was financially capable to support their living and to provide suitable accommodation for the girls in Hong Kong. The Director's written response read as follows :-

" I refer to your application for change of immigration status to take up residence in Hong Kong Special Administrative Region (HKSAR) as a dependant of Kaur Mohinder.

Under the existing immigration policy, an unmarried person under the age of 21 may be allowed to come to Hong Kong for residence to join his mother/father already resident here as his/her dependant provided inter alia, that his parent is able to support and provide accommodation for him. After careful consideration of your application, I regret to inform you that your application is refused because we are not satisfied that Kaur Mohinder is financially capable to support your living and provide suitable accommodation for you in Hong Kong.

You are permitted to remain as a visitor until 10 December 1998. You are required to leave the HKSAR on or before that date."

9. On 9 December 1998, the applicants lodged a notice of objection to the Chief Secretary under the Immigration Ordinance. This letter asserted that the Director had acted "unreasonably and irrationally" in making his decision, and set out the applicants' side of the case in terms of the financial capability of their mother (who was their sponsor) and grandfather, together with argument as to the suitability of their present accommodation. This letter concluded thus :-

"Further grounds of objection to be given at a later stage."

10. Following on from this, on 5 January 1998, the applicants were asked by the Secretary for Security to submit such "further grounds of objection" by 19 January 1999, and on 11 January 1999, the applicants wrote to the Secretary for Security informing her that as the Director of Immigration did not give the particulars of his reasons given on 3 December 1998, they would therefore not be in a position to submit such further grounds of objection. On the same day, that is 11 January 1999, the applicants also wrote to the Director of Immigration requiring him to supply the particulars of his reasons upon which his decision dated 3 December 1998 had been made.

11. On 30 January 1999 the Director of Immigration replied, inter alia :-

"Our letter of 3 December 1998 makes it clear that your applications were refused because the Director is not satisfied that your mother is financially capable of supporting you and providing accommodation for you in Hong Kong."

12. On 2 February 1999, the Secretary for Security again requested the "further grounds of objection", to which on 8 February 1999 the applicants in turn responded that they were unable to formulate such further grounds given that the Director had simply repeated his reasons, namely that "the maintenance and accommodation conditions were not met". This letter further mentioned that the applicants' grandfather was willing to undertake their support, and that there was "cogent evidence" of ability to support, including "the fact of employment" and there being "no recourse to public funds".

13. On 8 March 1999 the Director of Immigration sent an internal Restricted Memo to the Secretary for Security. This Memo, which prior to this application had not been disclosed to the applicants, has assumed considerable profile in this application. It is a carefully drafted document, some seven pages long and enclosing 17 documentary annexes. This Memo reviewed the case background, the reasons for the Director's refusal, on 3 December, of the girls' applications, and went on to note the joint petition against such refusal that the applicants had lodged on 9 December 1998 with the Chief Secretary for Administration. The Memo then commented on the "reviewing process" which had taken place, and proceeded (at sub-paragraphs 11(a)-(d)) to provide commentary upon the views that the Director had formed of the case, concluding (at paragraph 12) as follows :-

"12. Having considered all the relevant matters, we are not satisfied that Madam Mohinder can meet the requirement of being financially capable of supporting the living and providing accommodation to her dependant daughters in Hong Kong. Harjit and Gurjeet are now aged 16 and 19 respectively. There would not be any undue hardship if they return to live in India where they have two young brothers residing there. In the absence of strong humanitarian grounds, we are of the view that the petitions should be rejected."

14. The decision of the Director of Immigration was upheld by the Secretary for Security, her letter dated 17 March 1999 reading, in part :-

"I have reviewed your case. Having considered all the circumstances, I have decided to uphold the Director of Immigration's decision to refuse your applications for change of immigration status ..."

15. Thereafter, the applicants' further appealed to the Chief Executive, by joint petition dated 29 March 1999. This petition was referred to the Chief Secretary for Administration, acting in this instance as the Chief Executive's delegate in dealing with appeals or petitions against decisions made by the Secretary for Security and the Director of Immigration. By letter dated 11 November 1999 the applicants' petition was refused, the concluding paragraph of the relevant letter reading thus :-

"The Chief Secretary for Administration has personally considered your petition. Having carefully considered all circumstances of the case, she is of the view that the decisions made by the Secretary for Security and the Director of Immigration to refuse your application for change of immigration status should be confirmed."

16. Having now taken this case through the three stages open to them, the applicants now return to this court for relief, this case having been adjourned at the outset initially to enable the applicants to obtain pro bono legal advice. Thereafter, I am pleased to note, they successfully obtained a reconsideration, and subsequent grant, of legal aid.

THE RELIEF SOUGHT

17. The applicants seek, inter alia, an order of certiorari to quash the decision of the Director of Immigration dated 3 December 1998 refusing the applicants' request for change of immigration status, and a further order of certiorari to quash the decision of the Secretary for Security dated 17 March 1999 whereby the initial decision of the Director of Immigration was upheld.

18. In addition, Mr Pun, who has appeared throughout for the applicants, successfully applied to amend the relief sought to seek a further order, namely :-

"An order of certiorari to bring up and quash the decision of the Chief Secretary for Administration on 12 February 1999 not to treat the letter of the applicants dated 9 December 1999 as an appeal under section 53 of the Immigration Ordinance, Cap.115."

19. This latter amendment focused upon the apparent distinction which was sought to be drawn between 'statutory appeals' pursuant to section 53, Cap.115, and 'non-statutory appeals', which I am given to understand are separately categorized within Government.

THE ISSUES ARISING

20. It is probably fair to say that, in substantive terms, Mr Pun mounted his attack upon two primary bases :-

first, the absence of reasons or adequate reasons, for the Director of Immigration's decision to reject the application; and

second, that the Director of Immigration failed to act fairly in not permitting the applicants sight of the 'Restricted Memo', which was considered by the Secretary for Security when she considered and subsequently rejected the appeal from the Director's primary decision.

21. As to the argument concerning the absence of reasons, Mr Pun submitted that where a statute provides a right to appeal, reasons are required to enable the individual affected to exercise that right. In the present case, therefore, the applicants had rights under section 53 (albeit the appeal appeared to have been otherwise categorized and dealt with), and the Director had failed to provide adequate reasons for his decision.

22. With regard to the disclosure issue, it was well established, he said, that if relevant evidential material had not been disclosed to a party potentially prejudiced by it, there was therefore prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. At the very least, Mr Pun maintained, the applicants should have had the opportunity to comment upon the document which had been sent to the Secretary for Security.

23. The third issue, which only assumed any importance at the end of this case (arising, I gather, from a misunderstanding between counsel, initially it having been thought that the point had been no longer 'live') - and which led to the amendment to the relief prayed for - was the submission by Mr Pun that the applicants' appeal from the Director's decision should have been dealt with as a 'statutory appeal', and that in any event all appeals were, and could only be, creatures of statute, and that in the present case the Secretary for Security had had no legal power to deal with the appeal from the Director's decision.

DECISION

24. I have no hesitation in refusing the application to quash the primary decision of the Director of Immigration. I can see no reason why a decision taken by his officers, who were in possession of all relevant material regarding the circumstances of the applicants and their mother, should now be susceptible to being set aside on the basis of lack of adequate reasons. The Director refused the applications expressly because "after careful consideration" those charged with making this particular decision were not satisfied, on the evidence presented, that the applicants' mother and sponsor was financially capable of supporting the living and accommodation requirements of her daughters, and I am unable to see why this conclusion is said to be procedurally flawed.

25. The reason given has been simply and plainly stated. As a value judgment perhaps it may appear hard, but having stated the central premise for the rejection, I do not consider that the Director or his staff, who are in the business of making hard decisions in a difficult and emotive area, can or should now be criticised for failing to provide amplification of the basic reason proffered. Nor do I consider that the reason in this form has fettered the appellate process, which is Mr Pun's contention. Indeed, the manner in which this developed on the correspondence indicates that the argument as to lack of adequate reasons began to emerge only when, by letter dated 5 January 1999, the office of the Secretary for Security wrote a chasing letter requesting "your further grounds of objection" which was something which had been referred to at the conclusion of the applicants' letter of 9 December 1998 written in response to the Director's refusal of their application. This letter of 9 December 1998 is comprehensive and detailed, and does not appear to have suffered from any lack of focus; in fact, the true nature of the current 'reasons' argument is reflected in the applicants' response to the Secretary for Security's chasing letter, wherein they assert that no further grounds will be forthcoming "unless and until the Director of Immigration has supplied us with the particulars of reasons for his decision" (emphasis added).

26. Procedural fairness is clearly a movable feast which is dependent upon the specific circumstances of any given case, but in this instance I do not think that the applicants can justifiably complain under the 'reasons' head. The Director has made a judgment and contemporaneously stated the reason for that judgment. In addition the particular matters relevant to the conclusion now have been further set out in the Affirmation of Lai Kam-hung, acting Senior Immigration Officer, which has been filed in response to this application.

27. In the particular circumstances, I fail to see why the Director should be criticized in the terms now put forward on behalf of the applicants, whom the evidence indicates arrived in Hong Kong on 7 July 1998 and who were permitted to enter as visitors for a period of two weeks, thereafter applying for a change of immigration status but six days after their arrival (and in a substantially similar manner to their mother's own application for a change of immigration status, from visitor to dependant of her father, in January 1997).

28. In my judgment, this ground of attack has no merit, and there has been no procedural irregularity which would justify intervention by this court by way of judicial review.

29. Which brings me to the second substantive issue, namely that of the use of the 'Restricted Memo' in the circumstances of the consideration of this case by the Secretary for Security. From the applicants' standpoint, this appears to provide more cause for optimism. In this context Mr Pun's basic complaint that the Secretary for Security made the adverse decision upon the applicants' appeal on the basis of a document of which the applicants had not seen nor had been given the opportunity to comment upon - a submission that in my view possesses resonance in any consideration of whether these applicants for judicial review can be said to have had a fair crack of the procedural whip.

30. Mr Pun has emphasised that there are parts of this Memo which are not accurate and as to which there was no direct evidence before the Director of Immigration; for example, the allegation that Madam Mohinder Kaur still has to remit money to India to support her two young sons (paragraph 11(a)) or that the grandfather's ability to continue to finance the sisters "is in doubt" (paragraph 11(b)). To which Ms Crabtree has responded that there is even now nothing in evidence put in by the applicants as to these matters, and that looked at in the round, there is and can be no ground for complaint, in that the Director had merely been setting out, for the attention of the Secretary for Security, all relevant matters which had been before him.

31. It is unclear why this Memo was not shown to the applicants, albeit I assume it was forwarded as part of normal inter-departmental procedures. However, it has now been exhibited, entirely properly in my view, in the affirmation of Miss Hudson, Senior Government Counsel, dated 22 September 1999; indeed, the fact of reference to this Memo of 8 March was first disclosed in the affirmation of So Kam Shing, dated 19 July 1999, who deposed to the manner and reasons for the upholding by the Secretary for Security of the Director of Immigration's decision.

32. I have been troubled by this aspect of the case. If the true ambit of judicial review begins and ends with the concept of administrative fairness, it seems to me that there is here justifiable cause for concern. The point, I think, is not satisfactorily confronted by categorising this document merely as an internal review document, or by pointing (as indeed is the case) to the absence of evidence now put in by the applicants on the matters in issue in this Memo. The point here (putting to one side the vires issue) is that the appellate authority, in the person of the Secretary for Security, acted on the basis of a document containing material adverse to the applicants' interests of which the applicants had not had sight and with regard to which no opportunity was afforded to the applicants to put forward any remedial response. At the end of the day this is simply procedurally unfair, however unintended it may have been on the part of those responsible for the situation, and as a consequence in my judgment the decision made by the Secretary for Security upon the applicants' appeal from that of the Director of Immigration should not be permitted to stand.

33. A not dissimilar situation was recently the subject of consideration by the Hong Kong Court of Appeal in Chan Tak Shing v. Chief Executive of the HKSAR [1999] 2 HKLRD 389 (CA). In that case the Court of Appeal considered the argument put forward by the applicant police officer, in the context of his application for a judicial review of the decision as to his required retirement, that there had been procedural unfairness, as under section 12 of the Executive Order No.1 of 1997, he should have been given an opportunity to respond to an undisclosed document that had been submitted in reply to his own written submissions filed in answer to the primary representations of the Commissioner of Police. His appeal was allowed, specifically upon the unfairness ground, Godfrey JA observing (at page 393E) :-

"... The CE had before him, in the form of the submission in reply, a document calculated to work to the prejudice of the officer's case, a document (whatever its provenance) which the officer had not been shown and with the content of which he was given no opportunity to deal. The fact that the document contained no new ground of complaint against the officer and no new facts makes no difference. Nor does the fact that the officer knew perfectly well what was the case made against him. No person with any power of adjudication may hear evidence or (as here) 'receive representations from one side behind the back of the other': see Kanda v Government of Malaya [1962] AC 322, per Lord Denning at p.337. As Lord Denning went on:

The Court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough.

Conclusion

The author of the minute fell into error in laying before the CE a submission in reply which the officer had not been shown and with which he was given no opportunity to deal. The submission in reply was obviously calculated to work to the officer's prejudice. Whether it did or did not achieve that object is immaterial. Although the author of the minute may well not have realised it, what he did was unfair to the officer, and on that ground the officer's appeal must be allowed and the decision of the CE quashed."

34. Whilst Chan Tak Shing (op.cit.) involved, inter alia, the construction of section 12 of Executive Order No.1 of 1997, and in particular whether the apparent intent of that instrument was to give the officer the last word - and thus, as Ms Crabtree has submitted, is distinguishable on its facts - I do not consider that the broad principles expressed by the Court of Appeal are any the less applicable to a situation such as the present wherein the Secretary for Security, qua appellate body, acted on the basis of a document not shown to the applicants - albeit, as I have indicated, this appears to have occurred simply as a result of the relevant internal procedures and there is no basis for suggesting (and none has been so suggested) that what was done was done other than in good faith.

35. At the end of the day, therefore, for this reason alone I have concluded that this application for judicial review has been successful in terms of the attack launched upon the decision of the Secretary for Security dated 17 March 1999, but not otherwise. It follows therefore (although no application has formally been made in this regard) that the subsequent decision of the Chief Secretary for Administration, rejecting the applicants' petition to the Chief Executive, can no longer be supported to the extent that the rejection of that petition signifies affirmation of the decision of the Secretary for Security.

36. Having reached the view that I have, there is no need to express a final opinion upon Mr Pun's submission in terms of what has throughout been referred to as the 'non-statutory appeal' route, and I do not do so, although in light of the evidence placed before the court in the second affidavit of Miss Hudson as to the operation and scope of this particular appellate procedure, it would be surprising to say the least if Mr Pun's arguments were well-founded. To the contrary. I am firmly inclined to the view that they are not, although having decided this case upon other grounds, there is presently no need to grapple with this particular nettle.

ORDER

37. It follows from the foregoing, therefore, that the Order of the court upon this application for judicial review is as follows :-

1. The application for an Order of certiorari to quash the decision of the Director of Immigration made on 3 December 1998 is dismissed;

2. An Order of certiorari is to issue to bring up and quash the decision of the Secretary for Security, dated 17 March 1999, upholding the decision of the Director of Immigration dated 3 December 1998.

38. I will hear the parties as to costs (and, if necessary, as to the precise form of the Order) at a date and time convenient to counsel.

39. I thank both counsel for their assistance over the course of what regrettably has been an attenuated application.