PUN TAI SUNG v. IMMIGRATION TRIBUNAL AND ANOTHER

HCAL51/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 51 OF 2005

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J U D G M E N T

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1.  In this judicial review, the applicant seeks to quash the decision of the Immigration Tribunal (“the Tribunal”) dated 28 February 2005, dismissing the applicant’s appeal against a removal order made against him by the Assistant Director of Immigration on 23 September 2002. The applicant also seeks a declaration that he was born in Hong Kong and alternatively, an order remitting his appeal to a differently constituted Tribunal for reconsideration.

The facts

2.  The applicant was born on 15 July 1935. He did not have a birth certificate.  It is the applicant’s case, but disputed by the Director of Immigration (“the Director”), that he was born in Hong Kong.  The question of where he was born was the central issue in the appeal before the Tribunal.

3.  The applicant’s father is Poon Chi Hoi (潘子海) and his mother is Poon Chan Sze  (潘陳四).  They were born in Mainland China on 6 June 1913 and 22 February 1916 respectively. 

4.  The applicant’s father came to Hong Kong in 1932.  His mother, accompanied by his uncle, came to Hong Kong in August 1933.  Both of them became permanent residents of Hong Kong.  The applicant’s mother died in 1987 and his father died in 2002.

5.  When the applicant’s father was in Hong Kong, he had another wife, Madam Lin Wan Ying.  Madam Lin gave birth to a son called Poon Wing Tak on 29 January 1933.  Poon Wing Tak also did not have a birth certificate.  He is a permanent resident of Hong Kong. Madam Lin had already passed away.

6.  The applicant claims that his mother and Madam Lin maintained separate households in Kowloon City.  The applicant’s mother lived in a cubicle in a wooden hut in Nga Tsin Wai (衙前圍), where Tung Tau Estate (東頭村) subsequently stood, whereas Madam Lin lived at what was then known as Sai Tau Village (西頭村).   

7.  It is the applicant’s case that his mother gave birth to him at the wooden hut where his mother lived, assisted by a mid-wife called Chan Ah Chun (陳亞珍).  The applicant’s father in his statutory declaration referred to the mid-wife as Chan Ping (陳萍).  The applicants said they were the same person.  Madam Chan had already died.

8.  According to the applicant, he spent his childhood in Hong Kong until early 1942.  In about August 1939, his mother took him to stay with his father and Madam Lin. He ran away and got lost. He was taken by the police to Po Leung Kuk in Causeway Bay.  His mother found him some days later and he was returned to his mother.  The applicant had made enquiries with Po Leung Kok, but was told it did not maintain files on the individual inmates before 1962 and the record before 1962 was incomplete.

9.  During the Japanese occupation of Hong Kong in early 1942, the applicant and his mother, as refugees, were assisted by Red Cross and went to their native place, Pu Ning City (普寧市) in Guangdong Province to live with the applicant’s grandfather.  In 1946, the applicant’s mother returned to Hong Kong, leaving the applicant with his grandfather.

10.  In later years, the applicant was transferred to work and live in Mou (or Mao) Ming City (茂名市) of Guangdong Province.  He lost contact with his parents until the 1970s. He is married with four children. 

11.  In May 1990, the applicant’s father made applications to the Mainland authority for the applicant and the applicant’s two sons to come to settle in Hong Kong.  In connection with this, the applicant’s father had written a letter dated 23 May 1990 to the authority of Mou Ming City. The letter did not mention that the applicant was born in Hong Kong. The application of one of the applicant’s sons was approved.  The applications of the applicant and his other son were unsuccessful.

12.    On 20 November 1998, the applicant came to Hong Kong on the strength of a two-way exit permit issued on 19 November 1998. In this document, the applicant’s place of birth was stated to be Pu Ning. He was given permission to remain as a visitor until 13 February 1999. The permission was subsequently extended to 23 February 1999.  Since 24 February 1999, the applicant has been over-staying in Hong Kong.

13.  In the light of the Court of Final Appeal’s decision in Chan Kam Nga & Ors v. Director of Immigration (1999) 2 HKCFAR 82, the applicant’s father wrote on 20 February 1999 to the Director claiming right of abode on behalf of the applicant. The claim was made on the basis that the applicant’s parents were permanent residents of Hong Kong. It was also mentioned that the applicant was born in Hong Kong.

14.  After the Standing Committee of the National People’s Congress issued the Interpretation on Article 24(2)(3) of the Basic Law on 26 June 1999, the applicant applied on 28 June 1999 to the Director for verification of right of abode.  In the application, the applicant stated that he was born in Hong Kong. On 29 July 2000, the Director refused his application. 

15.  The applicant was one of the parties in the case of Ng Siu Tung & Ors v. Director of Immigration (2002) 5 HKCFAR 1.  After the Court of Final Appeal handed down the decision on 10 January 2002, the applicant’s appeal was dismissed by consent.

16.  On 23 September 2002, a removal order was issued against the applicant.  On 3 October 2002, the applicant lodged an appeal to the Tribunal against the removal order, contending that he was born in Hong Kong.  He became legally represented in November 2002. 

17.  By letter dated 11 June 2003, the applicant’s solicitor supplied to the Department of Justice a copy of a Household Register (居民户口簿) issued in 2000 attested by Mou Ming Notary Public Office (“the 2000 Household Register”).  In it, the applicant’s place of birth was manually corrected from “國外” (outside China) to “香港” (Hong Kong).  Previously on 8 March 1999, the applicant had provided to the Immigration Department a Household Register dated 8 August 1991 (“the 1991 Household Register”), on which the applicant’s place of birth was printed as “香港” (Hong Kong).  Subsequently in 2000, the words “普寧” (Pu Ning) were handwritten next to the words “香港” (Hong Kong), but were then crossed out with a tick alongside the words (“the amended 1991 Household Register”).

18.  By letter dated 24 June 2003, the Director wrote to the Guangdong Provincial Public Security Bureau (“GPPSB”) to seek further information and verification of the applicant’s place of birth as stated on the 1991 and 2000 Household Registers.  The GPPSB replied to the enquiry by letter dated 5 March 2004.  I shall return to deal with the enquiry and the reply in more details in the later part of this Judgment.

19.  The applicant was also interviewed by an immigration officer on 7 May 2004.  After consideration, the Director concluded that the applicant’s claim that he was born in Hong Kong was not substantiated. 

20.  On 3 January 2005, the applicant’s solicitor supplied to the Department of Justice two affirmations made by Madam Wong Yue Heung and Madam Yeung Chook respectively on 11 April 2003.  They were the respective neighbours of the applicant’s father in Sai Tau Village and of the applicant’s mother in Nga Tsin Wai Village. They both affirmed that shortly after the applicant was born, they were informed about it by the applicant’s father and family, and that the applicant and his mother went to the Mainland during Japanese occupation of Hong Kong.  On 14 January 2005, the Immigration Officers visited them.  They were both living in elderly homes.  Madam Wong had become bedridden and unable to speak as a result of a stroke in 2004 whereas  Madam Yeung was suffering from dementia.

21.  On 24 and 29 January 2005, the Tribunal heard the appeal. By a Notice of Determination of Appeal dated 28 February 2005, the Tribunal dismissed the appeal.

22.  On 27 May 2005, the applicant commenced these proceedings.  Leave to apply for judicial review was granted on 31 May 2005.  The Notice of Originating Motion was filed on 13 June 2005.  After obtaining legal aid, the applicant filed an Amended Form 86A and a Supplemental Notice of Originating Motion on 3 November 2005.

The grounds for judicial review

23.  The application is based on two broad grounds.  They are:

(1)	There was procedural impropriety in that the Tribunal had failed to assess all the evidence, make specific findings as to credibility and/or give adequate reasons for its conclusion.
(2)	The Tribunal’s decision was Wednesbury unreasonable in that it failed to take into account all relevant factors and at the same time accorded manifestly excessive or manifestly inappropriate weight to the relevant considerations.

The hearing before the Tribunal

24.  At the appeal before the Tribunal, there is no dispute that the applicant is a Chinese national.  The only issue for the Tribunal was whether the applicant’s assertion that he was born in Hong Kong was to be accepted.  It was common ground that if the applicant was born in Hong Kong, he would have right of abode under paragraph 2(a) of Schedule 1 of the Immigration Ordinance, cap.115, in which case the removal order could not have been issued.

25.  The applicant and his half-brother, Poon Wing Tak, and the immigration officer who interviewed the applicant in 2004 were called to testify at the hearing.  Additionally, the applicant relied on the two affirmations of Madam Wong and Madam Yeung.  There were also a statutory declaration made by the applicant’s father in 1999 and a statutory declaration of Wong Yiu.  In his statutory declaration, the applicant’s father stated that the applicant was born in Kowloon City in 1935, had stayed at Po Leung Kuk for 16 days in August 1939 and had gone to the Mainland in January 1942 during the Japanese occupation of Hong Kong.   Mr Wong’s statutory declaration was made on .  The applicant has lost contact with him and could not locate him to testify at the hearing.

26.  Apart from these, there were also in evidence before the Tribunal the 1991 and 2000 Household Registers.  Both the pre-amended and amended versions of the 1991 Household Register were produced.  There was also the applicant’s two-way permit as well as the letter from the Director to the GPPSB and the GPPSB’s reply.

The Tribunal’s decision

27.  The Tribunal had given written reasons for the dismissal of the applicant’s appeal.   The Tribunal had set out the gist of the witnesses’ evidence and also summarized the submissions of the applicant’s solicitor and the counsel for the Director.  Before concluding that “The applicant failed to produce evidence to convince the Tribunal that he was born in Hong Kong”, the Tribunal had explained its considerations. The section read as follows:

“Tribunal’s Consideration
The whole issue centers around whether the Appellant was born in Hong Kong.  The following points have been carefully considered.
a.	There was no record of the Appellant’s birth in Hong Kong nor could he provide any document to prove his birth here.
b.	His memories of Hong Kong were only the names of a few commonly known districts. He did not describe landmarks or incidences occurred during the period of 1935-42 to prove his presence in Hong Kong then.
c.	There was no witness to strongly support his birth or residence in Hong Kong. His brother’s evidence was based on hearsay from his father.
d.	Household documents before 1991 recorded his birth place as Pu Ning, the one that showed Hong Kong as his birth place was hand-corrected.
e.	His latest document, the Two-way Exit Permit showed his birth place as Pu Ning and he made no effort to change it.
f.	We believe that Officer Tang had performed his duties according to [sic] the general Department guidelines and common practices in vetting the application. The spelling mistakes or possible omission of some data were trivial and mostly irrelevant.”

The applicant’s arguments

28.  The crux of the applicant’s complaint in this judicial review is directed at the Tribunal’s treatment of the materials and evidence before it and the reasons given for holding that the applicant had failed to produce evidence to substantiate its claim that he was born in Hong Kong.

29.  Mr Pun who appeared for the applicant argues that the Tribunal did not take a balanced view of the evidence and the points raised at the appeal.  He points out that in considering that the applicant did not have a birth certificate, the Tribunal did not take into account the fact that in the 1930’s, it was quite normal and possible that for someone born at home and in Kowloon City, his birth would not be registered. The applicant’s half-brother also did not have a birth certificate.  He further criticizes the Tribunal for not taking into account the statutory declarations and affirmations, the contents of which were not hearsay, when it was due to circumstances beyond the applicant’s control that the makers could not attend the appeal to be cross-examined.

30.  I pause here to note that Mr Pun had rightly not pursued that the complaint that the unavailability of the makers was due to the Director’s or Tribunal’s failure to set down the appeal for hearing.  There was a gap of some 27 months from the lodging of the Notice of Appeal to the hearing of the appeal.  While part of the time was to await the reply from the GPPSB to the Director’s enquiries on the 1991 and 2000 Household Register, the delay was also due to the applicant’s solicitor’s repeated requests to defer the hearing to await the outcome of certain enquiries with the Mainland authorities.

31.  Mr Pun also criticizes the Tribunal for disregarding the reply from GPPSB completely.  He points out, too, that the Tribunal was mistaken as to the fact in relation to paragraph d. of the Tribunal’s Considerations in that the Household Registers were not issued before 1991. In respect of the comment “the one showing his birth place to be Hong Kong was hand-corrected”, the Tribunal is said to have failed to consider that the alteration was endorsed and verified by an official stamp.  In the light of the oral testimonies of the applicant and his half-brother and the many documentary evidence, Mr Pun submits that the Tribunal had not adequately explained its conclusion that the applicant failed to produce evidence to convince it that he was born in Hong Kong.      

The Director’s arguments

32.    For the Director, Mr Man argues that the Tribunal’s finding of fact, namely, the applicant failed to adduce evidence on his place of birth, is amply based on the evidence before the Tribunal, such that there can be no substantiate challenge to the decision. 

33.  Mr Man points out that the applicant was extensively cross-examined while his half-brother admitted he was only learnt of the applicant’s birth from his late father. Hence, the Tribunal was entitled to place no weight on it.  In respect of the Household Registers, Mr Man says that the place of birth in them had undergone changes in 2000, which is indicative of the authorities being informed that the applicant was not born in Hong Kong, but in Pu Ning.  He also submits that it matters not that the alterations were with governmental authority for the gravamen lies in the oscillation of the story.  As for the GPPSB’s reply, he comments that the letter did not answer the queries raised by the Director and had not attached the supporting documents mentioned in it.

34.  Mr Man further refers to the Two-way Exit Permit and submits that the applicant could not satisfactorily explained how it was that his place of birth was stated to be Hong Kong in the Permit and why he did not seek to correct it.  He also makes the point that the applicant’s father, when applying for the applicant and his two sons to settle in Hong Kong, did not in the 23 May 1990 letter to the authority of Mou Ming City mention that the applicant was born in Hong Kong.           

35.  In Mr Man’s submissions, the Tribunal had given clear reasons for its decision, which also show that all the relevant matters had been considered.  There is no need for the Tribunal to deal with each and every piece of evidence or to state specifically its findings on credibility when it is obvious that it did not believe the applicant.

Discussions

36.  I accept that it is within the power and function of the Tribunal to make findings of facts.  I also accept that the court in its supervisory jurisdiction should be extremely slow to review findings of facts made by a tribunal.  However, there are situations where the court will be entitled to review or intervene with the findings of facts. The position has been summarized in Wade & Forsyth: Administrative Law (9th edition, 2004) p.272-3 as follows:

“Findings of fact are traditionally the domain where a deciding authority or tribunal is master in its own house. Provided only that it stays within its jurisdiction, its findings are in general exempt from review by the courts, which will in any case respect the decision of the body that saw and heard the witnesses or took evidence directly. Just as the courts look jealously on decisions by other bodies on matters of law, so they look indulgently on their decisions on matters of fact.
But the limit of this indulgence is reached where findings are based on no satisfactory evidence. It is one thing to weigh conflicting evidence which might justify a conclusion either way, or to evaluate evidence wrongly. It is another thing altogether to make insupportable findings. This is an abuse of power and may cause grave injustice. At this point, therefore, the court is disposed to intervene.
	‘No evidence’ does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as whole, is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence.”

37.  I am in agreement with Mr Man that credibility of witnesses and the weight to be given to any piece of evidence are matters for the Tribunal.  It follows that given the applicant’s half brother’s testimony that he learnt the applicant’s birth from his father and that the makers of the statutory declarations and affirmations were not cross-examined, the Tribunal was entitled to attach little or no weight to these evidence.

38.  As to the duty to give adequate reasons, the Chief Justice had pointed out in Oriental Daily Publisher v. Commissioner for Television and Entertainment Licensing Authority (1997-8) 1 HKCFAR 279 at 290J-291C that the reasons given should show that the Tribunal had addressed the substantial issues before it and show why the Tribunal has come to its decision.  While it may not be necessary to address every single issue, the reasons should show that the issues that arise for serious consideration have been considered.     

39.  In the present case, the Tribunal had set out the matters it had taken into account in reaching the conclusion that the applicant failed to make out a convincing case on evidence that he was born in Hong Kong. To this extent, it cannot be said that the Tribunal had only stated its conclusion but had not explained the basis for it.  Although there was no specific finding on the credibility of the applicant, it is apparent from the written reasons that the Tribunal entertained reservations about his evidence.  The case of Chen Cheng Zhi v. Director of Immigration HCAL 40/2005, unreported (13 March 2006) is factually different.  The reasons given by the Tribunal in that case were much more sketchy.   

40.  Having said these, there are however two matters in the Tribunal’s deliberations as set out in the written reasons that give rise to cause for concern as to the rationality of the conclusion.

41.  Firstly, the Tribunal did not appear to have considered the reply from the GPPSB at all.  This is evident from the fact that the reply was not mentioned as one of the points considered by the Tribunal. Neither had the GPPSB’s reply been referred to when the Tribunal summarized the evidence and submissions put forward at the appeal.  Contrary to Mr Man’s submissions, the reply from GPPSB has dealt with the enquiries of the Director and further provided relevant and pertinent information in connection with the place of birth stated in the Household Registers.  It in turn also has a bearing on the credibility of the applicant’s evidence and case.

42.  In the Director’s letter, two questions were raised.  First, it enquired about the basis for the 1991 Household Register stating the applicant’s place of birth as Hong Kong and whether this was based on some documents or records.  Second, the Director requested the GPPSB to investigate and verify the veracity of the contents of the 2000 Household Register as attested by the Notary Public Office.

43.  The reply from GPPSB made the following points. First, in the Ordinary Residents Register (常住人中登記表) maintained by Hong Qi  Office (紅旗派出所) of Mou Ming Public Security Bureau, the applicant’s place of birth was originally recorded (原始記錄) as Hong Kong.  The 1991 and 2002 Household Registers were issued by Hong Qi Office.  Second, investigations had been made at the Mou Ming City Industrial Development Corporation where the applicant used to work.  Some or one employee had stated that the applicant was born in Hong Kong and he had made unsuccessful attempt to look for the mid-wife.  Third, the personal file maintained at the Corporation was consulted. It revealed that in October 1979, the applicant had stated in an employee resume (職工履歷表) that in 1941, during the Japanese invasion of Hong Kong, he became a refugee and went to the Mainland to look for his relative. The record also revealed that in a cadre resume (幹部履歷表) dated 5 October 1988, the applicant had reported his place of birth to be Nga Tsin Wai Village, Kowloon City, Hong Kong.

44.  The reply had in effect dealt with the enquiries and request from the Director. It indicated that the place of birth stated in the 1991 Household Register was supported by other documents and in particular, the Register maintained by the authority responsible for issuing the Household Registers.  The GPPSB had also pursuant to the request carried out investigations by making enquiries and checking up the records at the applicant’s work unit.  The results of the investigations were consistent with what was stated in the Household Registers and with the applicant’s case.

45.  In my view, the reply from the GPPSB is a relevant piece of evidence that calls for full and serious consideration by the Tribunal.  The relevance and materiality of this piece of evidence is not affected by the fact that copies of the underlying documents referred to in the reply were not attached.  The non-availability of the underlying documents is a matter that the Tribunal can properly take into account when assessing the weight to be given to the reply, but it does not justify the Tribunal in disregarding the reply.

46.  Secondly, paragraph d. of the Tribunal’s Considerations is both confusing and mistaken.  As observed by Mr Pun, there were no household documents that were dated before 1991. If the Tribunal was referring to the 1979 employee resume and 1988 cadre resume mentioned in the GPPSB’s reply, they did not record the applicant’s birth place as Pu Ning, apart from the fact that they were not household documents. 

47.  Mr Man says this is a reference to exhibit 10, namely, the amended 1991 Household Register. If this is the case, then when the Tribunal stated that the documents recorded the applicant’s birth place as Pu Ning, the Tribunal did not seem to have appreciated that the words “普寧” (Pu Ning) had been crossed out and there was a tick to verify the deletion.  In this regard, counsel for the Director at the appeal was mistaken when he submitted that exhibit 10 showed Pu Ning as the birth place and the tick should be an indication that the data had been verified: see paragraph 23(vi) of the written reasons.   It should also be noted that paragraph d. referred to “household documents before 1991”, which suggests it is not only exhibit 10 that the Tribunal was having in mind.  As noted above, there was no other household document that stated the applicant’s birth place to be Pu Ning.

48.  In my view, paragraph d. is not a clerical error.  It indicates that there was either some confusion about or a misunderstanding of the evidence with regard to the Household Registers that were put before the Tribunal.

49.  Mr Man has emphasized heavily that the gravamen is the oscillations as reflected by the alterations to the 1991 and 2000 Household Registers.  Although the transcript of the appeal showed that counsel for the Director had submitted that the applicant said different things at different time (一時一樣), the Tribunal did not refer to this in its reasons and certainly did not give this as a basis for the finding or conclusion on the applicant’s evidence. In contrast, it would appear from paragraph 23(vi) and (vii) of the written reasons that the Tribunal had understood counsel for the Director to be making an attack on the truthfulness of the handwritten correction on the 2000 Household Register and the inconsistencies in the applicant’s documents in respect of the place of birth.     

50.  More importantly, the argument that the applicant had oscillated presumes that the alterations to the Household Registers were procured or caused by the applicant.  This is unwarranted.  The undisputed fact is that the applicant has remained in Hong Kong since 20 November 1998 and the alterations on the 1991 and 2000 Household Registers took place after 1999.  It is submitted that the alterations reflected that the Mainland authorities were informed “directly or indirectly by the applicant or by some independent authoritative source” that the applicant was not born in Hong Kong.  However, there is no such evidence or information before the Tribunal or in these proceedings.  There is no proper evidential basis for any finding that the applicant had given different accounts of his birth place in connection with the Household Registers.  It would not have been open to the Tribunal to take into account any oscillation of story.  The submission that the applicant was unable to explain the alterations from “outside China” to “Hong Kong” in the 2000 Household Register must also be viewed against the fact that the applicant was not in the Mainland when the alteration was done.

51.  There can be no doubt that the place of birth stated in the Household Registers is an important aspect of the applicant’s case.  It is also one of the considerations underlying the Tribunal’s conclusion. However, it does not appear from paragraph d. of the Tribunal’s Considerations that this part of the evidence had been fully grasped and properly evaluated.  To the extent that the Tribunal’s conclusion and reservations over the applicant’s evidence and case are at least in part the result of its consideration of the household documents, the Tribunal’s decision is irrational in the public law sense and is unsupportable.

52.  As observed by Hartmann J in Lekhanath Gurung v. Director of Immigration HCAL 11/2005, unreported (16 September 2005), the court in judicial review is not concerned with the merits of the tribunal’s decision. Its task is to look to the legality of the process.  In the present case, the written reasons indicate that the Tribunal had omitted a material and relevant consideration and had not properly dealt with another important part of the applicant’s evidence in the deliberation process.  On this basis, the Tribunal’s decision is liable to be quashed.

53.  The applicant further seeks a declaration that he was born in Hong Kong and alternatively, an order remitting his appeal to a differently constituted Tribunal for reconsideration.  In general, I do not consider it is appropriate for the court to usurp the function of the Tribunal especially when the declaration sought depends on finding of facts.  On the other hand, I am conscious of the time and costs implications of remitting the appeal to the Tribunal for reconsideration, bearing also in mind that the applicant has been litigating over his immigration status for a number of years.  I note too that counsel had not made specific submissions on whether this court should grant the declaration sought or remit the matter for reconsideration.  In the circumstances, I would invite the applicant and the Director to try to agree on the terms of the order within 14 days from the handing down of this Judgment. In the event agreement cannot be reached, the applicant and the Director are at liberty to lodge written submissions on the point within 14 days thereafter.

Conclusion

54.  For the above reasons, the judicial review application is allowed with the terms of the order to be resolved as provided in the preceding paragraph.  There is an order nisi that the 2^nd respondent pays the costs of the applicant, to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.