Lui Pui Shan (a minor) v. Immigration Tribunal

1993, M.P. No.4302

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On the 22nd July 1993, the Deputy Director of Immigration made a Removal Order under S.19(1)(b)(ii) of the Immigration Ordinance, Cap.115 ("The Ordinance") against Miss Lui Pui-Shan ("the child"), then approximately two years old and residing at Room 627, Block 16, Kwai Chung Estate, New Territories, which was the home of her parents, Mr Lui Yau-Tung, ("the father") and Madam Ngan Sui-lan, ("the mother"). At the same time, the Deputy Director of Immigration served a similar Removal Order on the mother.

2. The mother does not claim any right of abode for herself in Hong Kong. She does, however, assert such a right for the child on the basis that she was born in Hong Kong on the 10th July 1991.

3. The mother had married the father in China in 1988. The father has had the right of permanent residence in Hong Kong since 1979, when he first came here from China.

4. It is common ground that the mother surrendered herself to the Immigration Department in Hong Kong in November 1992 when she was approximately eight months pregnant with Ngan Chai, a son born to her and the father on 28th December 1992 in Yan Chai Hospital in Hong Kong.

5. At the time of surrendering herself to the Immigration Department in November 1992, the mother had the child living with her and the father at the Kwai Chung Estate address referred to earlier.

6. The father and mother both assert that the child was born at their Kwai Chung Estate home on the 10th July 1991. The Director of Immigration does not accept their assertion, his contention being that the child was born to the mother in China. There is no suggestion from the Director of Immigration that the mother and father are not the parents of the child.

7. Acting on behalf of the child, the father, on the 23rd July 1993, lodged an appeal with the Director of Immigration, pursuant to s.53A(1)(aa) of the Ordinance, that the child enjoyed the right of abode in Hong Kong because she had been born here.

8. The Immigration Tribunal ("The Tribunal"), comprising two lay adjudicators, heard the appeal of the child, represented by the father, a building worker, on the 27th September and 2nd November 1993 By virtue of S.64 of the Ordinance, the onus was on the child to prove she was born here.

9. At the end of the hearing on the 2nd November 1993, the Tribunal dismissed the child's appeal, giving the following reasons:

"After hearing all the witnesses and examined all the evidence, the appellant offered no creditable evidence. Not a single piece of evidence was believable. On the balance of probabilities the appellant failed to establish the child was born in Hong Kong. The appeal is therefore dismissed."

10. The present application for Judicial Review was made on the grounds, inter alia, that the Tribunal had failed to weigh and assess the evidence in a manner consistent with its adjudicative functions, and that its determination lacked rationality.

11. At the hearing, five witnesses were called.

12. The evidence of the father and mother was that the latter had sneaked into Hong Kong from China on the 1st March 1991, by when she was already pregnant. They both said that the child was born to them at their Kwai Chung Estate address on the 10th July 1991, with the father performing the role of midwife. As the father could not even explain to the Tribunal how he tied the baby's umbilical cord and does not know how to bathe a new-born baby, it was clear that he and the mother were not telling the Tribunal the whole truth. A neighbour, Madam Fong Kam-yip, whom they called as a witness to support their story about the birth of the child at home was, obviously, not telling the truth either, since at the material time, she appears to have been away working in China. Another witness, Mr Ma Sai-chung, a work-mate of the father was not of much help to the case presented by the father, either, since he claimed to have seen the mother in China at a time when she was supposed to have been in Hong Kong.

13. The fifth witness, a herbalist, Mr Chun Kwan Fat, confirmed that he had supplied pregnancy-related medication to someone with the same surname as the mother on the 30th March and 20th May 1991, but he had no recollection of the woman concerned, and, apart from the name on the prescriptions, there was nothing to relate the pregnancy medication to the mother.

14. As the father and mother portrayed the position to the Tribunal. they had been living together at the Kwai Chung address from the time she sneaked into Hong Kong in March 1991 up to the time she surrendered to the Immigration Department in November 1992. On their version, the child has remained with them both at Kwai Chung from the time of her birth.

15. A weakness in their story was that the mother had been intercepted by the Royal Hong Kong Marine Police on the 7th January 1992, when she was attempting to sneak into Hong Kong. Her story to the police then was that she was a single woman, knowing no one in Hong Kong but wanting to enter Hong Kong to get work. A day or two after being thus intercepted, she was deported back to China. The reasons she gave in Court for telling those lies to the police on that occasion was that she did not want to get the people sheltering her in Hong Kong into trouble, since it is a criminal offence to harbour an illegal immigrant.

16. According to her version of events, she had interrupted her illegal residence which had been continuing in Hong Kong from 1st March 1991onwards, for the purpose of going back to China at the end of December 1991 in connection with her grandmother's funeral. After the funeral, she wanted to sneak back into Hong Kong, but got caught the first time on 7th January 1992,but was successful the next time.

17. Although much of what the father and mother told the Tribunal was obviously untruthful, there was also quite a lot which appears to have been truthful, such as, for example, their being the parents of the child. In the same way that the mother had understandable reasons for not wanting to tell the Marine Police the truth when they apprehended her on the 7th January 1992,namely, that she did not want to get people in Hong Kong who had helped her into trouble, she and the father might well have had similar reasons for not wanting to tell the whole truth about their life together in Hong Kong to the Tribunal.

18. Just because the father and mother tell lies does not necessarily mean that the child was not born in Hong Kong.

19. By indiscriminately characterising every single piece of evidence offered by them as unbelievable, the Tribunal does not appear to have carried out its evidence-weighing exercise, winnowing the good evidence from the bad, as carefully as it should have done. Like the Immigration Appeal Tribunal in Reg v. Immigration Appeal Tribunal, Ex Parte Khan [1983], 1Q.B.790,795, the Tribunal has left itself open to criticism because, "... they do not satisfactorily delineate those parts of the evidence... which they accept and those parts which they do not". The blunderbuss approach involved in asserting, "not a single piece of evidence was believable", when parts of the evidence were in fact believable, calls in question the rationality of the determination made against the child by the Tribunal. For reasons to measure up to the standard of fairness required by public law, they have to be, "proper, intelligible and adequate": see Save Britains Heritage v. Number 1 Poultry Ltd. [1991]1 WLR 153, 166, per Lord Bridge, citing In re Poyser and Mills Arbitration [1964]2 QB 467, 478.

20. As the Tribunal acts judicially in relation to rights which are of vital importance, it has to act fairly by giving reasons which are adequate for its determinations, (see Immigration Tribunal v. Lau Tak-pui [1992] 374,383), and it is a long established rule of public law that a decision-making body's determination will fail the test of fairness if flawed by irrationality (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948]1 KB 223, and Edwards v. Bairstow [1956] AC 14).

21. Bearing in mind that the interests of a very young child are involved and the general undesirability of splitting up any family except for the most cogent reasons, I am satisfied this Court should intervene on the ground of the child not having had a fair hearing by an order of certiorari quashing the Tribunal's determination and remitting the issue of whether the child has the right of abode in Hong Kong by virtue of being born here to a differently constituted Tribunal for the matter to be heard afresh.

22. I would hope that, for the next hearing before a Tribunal, the child will be properly represented.

23. This being a Judgment delivered pursuant to O42, r.5B, I make a 14 day order nisi that costs are to follow the event, such costs being taxed in accordance with Legal Aid Regulations.