YU AH WING v. DIRECTOR OF IMMIGRATION

HCAL 42/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW PROCEEDINGS NO. 42 OF 1999

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J U D G M E N T

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1. This is an application for judicial review of two decisions by the Director of Immigration : a removal order made on 13th March 1998, and a decision by the Director on 2nd March 1999 by which he confirmed or upheld the decision to make that order.

2. On 15th April 1999 Keith J, as he then was, granted the applicant leave to apply for judicial review of those decisions, extending time for leave to apply for judicial review of the removal order; the application having been made on 8th April 1999.

Background

3. The essential history of the matter is as follows. The applicant is now aged 19 years. He was born on the Mainland on 18th February 1980, and the name he was then given was Yu Ah Wing. He was born one week after the birth of a child named Yu Pak Ying who was born to a Mr Yu Man Wah and a Madam Wong Ching Ngan. Yu Pak Ying was their third son and it will be convenient to refer to him in this judgment as "the third son". The applicant was wholly unrelated to that couple, or to the third son.

4. Mr Yu (senior) came to Hong Kong in 1979, and in 1986 Madam Wong joined him here. They have both since become Hong Kong permanent residents.

5. In 1986, the third son sneaked into Hong Kong. Before he came here, his parents had applied for a one-way exit permit for him. It was in his name, Yu Pak Ying, but it was not used by him. Instead, it was used by the applicant at the instigation of Mr Yu and Madam Wong. The applicant arrived in Hong Kong in December 1991. His natural father was then still alive, his mother having passed away in 1984. But according to the evidence of Mr Yu and Madam Wong, the father had had trouble caring for the applicant and so Mr Yu and Madam Wong adopted him. That adoption is said to have taken place in 1984, but it is common ground that full adoption formalities were not completed.

6. After his arrival in Hong Kong in December 1991, the applicant lived in Hong Kong with Mr Yu and Madam Wong. His arrival had been secured by a misrepresentation because upon his arrival, he presented, or there was presented on his behalf, this exit permit of the third son onto which the applicant's photograph had been pasted. There is no question but that had the misrepresentation not been made, he would have been refused entry into Hong Kong. As it was, he was granted permission to land.

7. Thereafter, the immigration authorities were engaged on a number of occasions with the applicant's immigration status. In March 1992, the applicant was issued with a document of identity which is, in its effect, a travel document, which in turn was endorsed with notice of the permission to remain; a transfer of an endorsement which had been placed on his one-way permit. He was also given a re-entry visa. Had it been known that he was not the rightful owner of the one-way permit, he would not have been given the document of identity or the re-entry visa. Applications for such documents had, in the case of applicants aged under 16 years, to be submitted by the parents of an applicant.

8. The applicant was subsequently granted two extensions of the permission to remain, each for a two year period. The second extension was due to expire on 11th December 1996.

Discovery of the fraud

9. Matters started to unravel in February 1995 when Mr Yu presented himself and the applicant, then aged 15 years, at the offices of the Immigration Department, saying that the applicant's document of identity was lost and there was then presented, again, the (false) one-way permit and the applicant's identity card, and also a birth certificate purportedly relating to the applicant giving his date of birth as 11th February 1980; this in order to suggest a father-son relationship between the applicant and Mr Yu.

10. The Immigration Department conducted a check, and their attention became focused on the third son, also named Yu Pak Ying and also born on 11th February 1980 to the same Mr Yu and Madam Wong. This Yu Pak Ying had, however, according to immigration records, sneaked into Hong Kong in 1986 and in due course had secured permanent resident status. That had happened in October 1994. Mr Yu and Madam Wong had never said to the immigration authorities that they had an adopted son with the same or with a similar name.

11. Mr Yu and Madam Wong were then interviewed under caution. They said that they had seven children including two adopted children, a girl and a boy (the applicant). The adopted daughter had come to Hong Kong but she had been repatriated to the Mainland. Mr Yu admitted that a plan had been hatched for the applicant to use the one-way exit permit in the name of the third son. He said that on the day the applicant had arrived through Shenzhen into Hong Kong, a nephew of Mr Yu had been to fetch the applicant, the suggestion being that the nephew had filled out the requisite arrival form. Mr Yu accepted that when the application was made in 1995 for a replacement document of identity, there was an attempt, still then, to conceal the true identity of the applicant "as I hope[d] that he could stay in Hong Kong". Madam Wong, in her interview, accepted that similar deceptions were practised when applications were made for extensions of the permission to land, and for the identity card.

Steps towards removal

12. After these interviews, the applicant was required to enter upon a recognisance, and it must from that date have been clear to the applicant and his family in Hong Kong that the applicant was at risk of removal from Hong Kong. That recognisance was renewed in November 1996, and again in July 1997.

13. In January 1996, Madam Wong was charged with the offence of possession of an unlawfully obtained travel document - the exit permit; and Mr Yu with making a false representation for the purpose of obtaining the document of identity. In that month they appeared before a magistrate and pleaded not guilty.

14. In February 1996, solicitors acting for the applicant wrote to the Immigration Department asking them to withhold any further action against the applicant pending the outcome of the criminal proceedings. Mr Yu and Madam Wong appeared in the magistrate's court in May 1996, and then pleaded guilty, and were each fined $1,000.

15. The removal order was made on 13th March 1998 pursuant to the provisions of section 19(1)(b) of the Immigration Ordinance, on the ground that the applicant had landed in Hong Kong unlawfully. Notice of that order was served on the applicant and is dated 31st March 1998.

16. The applicant then appealed to the Immigration Tribunal against the removal order on the ground that he had the right of abode in Hong Kong. The hearing of that appeal took place on 18th September 1998, and 18th November 1998. That appeal was unsuccessful. It was dismissed on 12th January 1999.

17. On 28th September 1998 the applicant, through his solicitors, had asked the Director to reconsider his decision to make the removal order, but on 2nd March 1999 the Director wrote to the applicant's solicitors saying that he had decided to uphold the order.

18. By this application, the applicant seeks orders of certiorari to quash the removal order, as well as the decision of the Director of Immigration communicated by the letter of 2nd March 1999.

Grounds

19. It is accepted by the applicant that by reason of the misrepresentations made to secure the applicant's entry into Hong Kong, the permission to land which he was granted was thereby vitiated, and that he must be treated as one who has landed unlawfully, and that that result is not affected by the fact, if it is a fact, that the applicant was, or may have been, an entirely innocent party to the deception which was practised (see Tsui Siu Wah v. Director of Immigration (unreported), HCMP No. 1665 of 1994; Kong Sau Mei & Ors. v. Director of Immigration [1999] 1 HKC 174; R. v. Immigration Officer ex parte Chan [1992] 1 WLR 541). So, too, it is not disputed that where leave to enter is granted upon a misrepresentation, "any extensions [of the permission to stay] will be infected with the same vice as the original leave, the period of which has been extended." (per Browne-Wilkinson LJ (as he then was) in R. v. Secretary of State for Home Department ex parte Lapinid [1984] 1 WLR 1269, 1273.)

20. It must follow that the Director had the power to make the order he did make under section 19(1)(b)(ii) of the Immigration Ordinance, which enables him to make such an order if it appears to him that the person against whom the order is made has landed in Hong Kong unlawfully.

21. The arguments advanced on behalf of the applicant in the course of this hearing have shed some of the grounds put forward in the application for leave and in the notice of motion. It was there suggested that by reason of past practice in immigration cases, the Director had caused the applicant to have a legitimate expectation that his plea to be permitted to remain in Hong Kong would be met favourably. That contention has been abandoned, no doubt because it is recognised that there is simply no evidence which could possibly support such an assertion.

22. The grounds advanced in the application for leave also prayed in aid a suggested failure to act in accordance with the principle of proportionality, in that the Director failed to strike a balance between the interests of the applicant on the one hand, and the purpose or policy objective behind the decision. No doubt recognising that in a case such as the present, there was no justification for moving from the Wednesbury unreasonable threshold, if it could be applied at all, or, perhaps, that proportionality was already effectively covered within that rubric, the point, as it was framed, was abandoned.

23. Instead, I am left to consider the following complaints :

(1) Delay

24. It is said that there has been inordinate delay between February 1995, which is the time of discovery of the various misrepresentations by Mr Yu and Madam Wong, and the time of the removal order, and that that delay led the applicant to have a legitimate expectation that his case would be considered favourably, which in this case is shorthand for saying that the delay gave rise to a legitimate expectation that he would be granted permission to remain in Hong Kong.

25. On the face of it, there was indeed a long time between the discovery of the fraud practised on the authorities and the making of the removal order, but that is to ignore what happened in the interim. The adoptive parents were interviewed in late 1995 and prosecuted in early 1996 when solicitors for the applicant were then asking the Immigration Department not to remove the applicant or take steps in that regard until after the criminal proceedings were determined. Those proceedings were determined in May 1996. Then in August 1996 the parents were asked if they would send the applicant back voluntarily, but they refused. From early 1996 there was correspondence with the Mainland authorities about the authenticity of the one-way permit and also to seek clearance for the applicant's re-entry into the Mainland. That clearance only came in December 1997, and it indeed seems a long time.

26. That said, there is in my judgment no valid foundation upon which can be erected any legitimate expectation on the part of the applicant that he would be permitted to remain. As an illegal immigrant, he had no right to remain. If there was to be conferred some legitimate expectation, it could only be consequential upon some clear and unambiguous representation by the Director to the effect for which the applicant contends, and although it is possible for representations to be made by conduct, such representations in this case as might be milked from the facts point the other way. The applicant was placed on recognisance pursuant to the provisions of section 32 of the Immigration Ordinance from 1995, and he was required to report monthly to the immigration authorities. The import of that recognisance could not have been foreign to the applicant since he had solicitors acting for him, certainly by January 1996, and again when the case went before the Immigration Tribunal later that year. That recognisance was renewed in November 1996, and once more in July 1997. There is evidence before me that when an immigrant enters upon such a recognisance, its effect is explained and that explanation includes a warning that he may be removed from Hong Kong. There is no contention by the applicant that that was not done in his case.

27. The applicant's argument on delay is not far removed from that advanced before Mantell J, as he then was, in Re Wong Shu Hung [1985] HKLR 463, in which a two year delay before the service of a removal order was said to constitute permission to remain in Hong Kong, a permission to be implied from all the circumstances. Mantell J said that the context of the Immigration Ordinance did not permit of a construction by which permission was to be equated with suffering a person to remain, and the same point might validly be made here; that the mere fact that the Director suffered the applicant to stay in Hong Kong for as long as he did cannot be fashioned into a representation by the Director that a removal order would not be made.

28. There are cases in which delay is a factor or an aspect of irrationality, or of a suggested breach of an express or implied statutory duty to move without unreasonable delay. The argument has not been advanced on that basis before this court, but had it been, I would have concluded that the delay in this case was not of that kind.

(2) The failure to give reasons

29. Mr Wu, who appears on behalf of the applicant, argued that there was in this case an obligation upon the Director to give reasons for his decisions, and that had he done so the applicant would then have had an opportunity of dealing with the points or views taken against him. It is not an argument maintained in respect of the decision of March 1998, that is, the removal order, because reasons were given for that decision. They were given in August 1998 when the Director wrote to the solicitors then acting for the applicant in the Immigration Appeal proceedings. The reason there provided was that permission given to the applicant to remain in Hong Kong was null and void; that he was deemed to have landed unlawfully and that he had "no legal claims on the HKSAR". Mr Wu restricts his complaint to the fact that all that the letter of 2nd March 1998 says is that "having considered all the circumstances of this case, we have decided to uphold the removal order".

30. There is much authority against Mr Wu's complaint. The law in this regard is encapsulated in the decision of the Court of Appeal in Ho Ming Sai & Ors. v. Director of Immigration [1994] 1 HKLR 21. That was an application for judicial review of the decision of the Director who declined to exercise his discretion under section 13 to authorise the applicants to remain in Hong Kong. The Director had given no reasons. Kempster JA referred to Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149 :

and which was to the further effect that an alien could be refused permission to stay, without reasons given. Litton JA, as he then was, in the same case, Ho Ming Sai, pointed out (at page 29) that :

Godfrey J, as he then was, emphasised the limited scope for judicial intervention in respect of the exercise of the Director's power under section 13 :

Then, on the question of natural justice, he added this :

31. There is, in my judgment, no reason why different principles should apply as between sections 13 and 19(1)(b)(ii). The power to remove an illegal immigrant under section 19(1)(b)(ii) is but part of the same coinage as the power to refuse entry to an illegal immigrant.

32. Mr Wu says that this case is, however, different from the ordinary illegal immigrant case, because this is not the normal or more frequently observed case of an illegal immigrant sneaking into Hong Kong; that this applicant was not instrumental in the making of any false representations; and that here there were extensive investigations conducted before a conclusion was reached, so that a mere refusal without reasons is unjust.

33. The distinction which Mr Wu seeks to draw is not, in my opinion, valid. I think that it misses the fundamental point that needs to be understood in cases of those unlawfully in this territory, and by those advising them; that the condition precedent to the invocation of the rules of natural justice is that the person who would invoke them has some right or interest or the legitimate expectation of a benefit, in respect of which right or interest or legitimate expectation he says he has been treated unfairly. Absent that right or interest or legitimate expectation, he is owed no duty, and the fact that he may have been lulled into an expectation of a benefit by the conduct of a third party does not, hard though it may seem in a particular case, create a right or interest or legitimate expectation as between himself and the repository of the statutory power in question. At the heart of this case is the fact that the applicant is, and always has been, a person who landed unlawfully and is liable, and always has been liable, to immediate removal, subject only to his right of appeal to the Immigration Tribunal. The fact that he was not an active party to the fraud practised on the authorities and practised, one might add, a number of times, does nothing to change his status, confers upon him no right to be in Hong Kong, and cannot be translated into any kind of representation by the relevant public authority from which some legitimate expectation can be divined. In other words, his innocence confers upon him no right, and no interest, and no legitimate expectation of a benefit.

34. The practical import of the distinction which Mr Wu seeks to draw needs only to be considered for its fallacy to be revealed. Would it then mean that where a parent arrives unlawfully in Hong Kong with a young child, the parent could be removed without the giving of reasons, but that the child could not be so removed without reasons, because the child was an innocent party? And would it mean that where a deception was particularly cunning so that it required lengthy investigation before a removal order could be made, reason would have to be given for the removal order, but not if the deception were blatant and discovered immediately?

35. It is in any event idle to suppose that the applicant did not know why the removal order was not overturned in March 1999. He had already been told why the removal order had been made, and it would not take too much guesswork to conclude that its confirmation in March 1999 was for exactly the same reason, namely, that he was an illegal immigrant.

36. There nonetheless remains for consideration one aspect of the case in relation to this question of reasons, and it is whether, given particular reasoning in fact provided for rejecting the applicant's pleas to the Director, the Director should have disclosed that reasoning to the applicant and allowed him an opportunity to respond. It is a matter more conveniently addressed after consideration, which now follows, of the allegation of irrationality.

(3) Irrationality

37. Mr Wu argues that the Director has taken into account irrelevant factors and has come to conclusions which are irrational. He has pressed upon the court the compassionate circumstances which ought, he says, to have moved a decision-maker to permit the applicant to stay. This applicant came to Hong Kong in 1991, aged but 11 years and there is good reason to suppose that he and Mr Yu and Madam Wong have a close relationship. He has been schooled here and now has employment. I shall also assume that he has acquired a group of friends. So, here we are, eight years or so after his arrival in Hong Kong, and there can be little doubt but that his removal, if effected, would be a source of very considerable trauma to him and to his adoptive family. No feeling soul would wish other than that the coming trauma for this applicant, and that of others who fall into a similar predicament, could be relieved. But the Director of Immigration has to operate within a setting infinitely more complex than that, and has no doubt all too often to harden his heart in the proper exercise of his statutory duties. The question for this court is not whether it would make the same decision, but whether there has been a defect in the decision-making process, or whether the Director has made an irrational decision, or shown to have taken into account irrelevant material facts. That is what Mr Wu says has happened.

38. He asserts that the Director has failed to take into account the fact that the applicant has been adopted by the family with whom he lives. Mr Wu accepts that there has been no adoption order on the Mainland nor formalities of the kind which would, in the light of the decision of Keith JA in Xie Xiao Yi v. Director of Immigration [1999] 3 HKC 148 give to the applicant a right of abode in Hong Kong; but he says that nonetheless the applicant is for all practical purposes, and as an emotional reality, an adopted son. He says that the Director has not paid sufficient regard to the fact that the applicant has severed contact with his natural father.

39. I pause for the reminder that whilst it is government policy to grant permission to remain in certain isolated cases with strong compassionate circumstances which merit exceptional consideration, neither section 13 nor section 19 impose upon the Director an obligation to consider compassionate or humanitarian factors (see R. v. Director of Immigration ex parte Chan Heung Mui & Ors. [1993] HKPLR 533).

40. But the fact of the matter is that there is, in any event, no justifiable basis upon which to contend that the Director did not take into account the matters about which Mr Wu complains. In September 1998, solicitors acting for the applicant wrote to the Director setting out the compassionate circumstances which were prayed in aid of a change of heart on the Director's part. That letter cited the adoption of the applicant by Mr Yu and Madam Wong; that the applicant was an innocent victim of the circumstances in which he came to Hong Kong; that he had settled in Hong Kong; has worked here; is very attached to his adoptive parents; and will have no means of support on the Mainland if returned there, a place in which, moreover, so it was contended, he has no relatives. In a letter from the Director dated 2nd March 1999, express reference is made to the letter of 28th September 1998 and in evidence filed before this court, the Director affirms that all the points raised by the applicant were fully considered. I have no reason to suppose that they were not.

41. Then Mr Wu turns to the affirmation of Mr Chun Yiu, an Assistant Principal Immigration Officer, who refers to factors taken into account in recommending the making of the removal order. Mr Wu attacks the following suggestions as irrelevant or irrational :

42. I do not think that that is the suggestion made by Mr Chun. Looked at in context and as part of the overall package, as it were, that the Director was considering - and it is to be remembered that he was considering not in this context whether the applicant was or was not an illegal immigrant, but only whether there were extraordinary compassionate circumstances which should drive the Director from the normal and obvious course - what is here being said is that this applicant is not incapacitated, either by reason of health or age or otherwise, such as might constitute a singular difficulty, as, say, in the age of someone much younger.

43. The record to which reference is made is the household registration record produced by the applicant himself in 1995 in support of his claim of adoption. It shows that the applicant had then a father, grandfather, uncles and brothers in Nanan County. This is evidence which the Director was perfectly entitled to take into account. It would have been odd had he not done so. This evidence, together with the other evidence (to which I shall shortly refer, and about which Mr Wu complains on the applicant's behalf) made the Director suspect, not surprisingly, that the information that he had been given about severance of family contact might well be untruthful.

44. But that argument does not address what in truth is being said by the Director. He is not saying that there are no compassionate grounds; only that the compassionate grounds are not such as to justify an exceptional course. This is a fact which is pre-eminently a matter for the Director to assess, since in the context of the full panoply of circumstances placed before him and his staff on a frequent and daily basis, he is well placed to judge what would constitute such exceptional compassionate circumstances.

45. In addressing his decision to confirm the removal order upon the reconsideration requested, the Director, through Mr Chun, has itemised further factors taken into account. They include the following, which are the subject of complaint by the applicant :

46. Had this consideration stood on its own, the complaint might have more force. It is however but one of a series matters which cumulatively have raised in the Director's mind doubts about the suggestion that the applicant is bereft of family ties on the Mainland.

47. I disagree. Whatever was or was not asked, the fact is self evident that there were some five years when the Yu family were in Hong Kong when someone on the Mainland must have been caring for the applicant.

48. I am not in the slightest surprised that the Director nursed strong suspicions that the applicant was visiting family on the Mainland. During Chinese New Year 1993, the applicant was on the Mainland when the adoptive parents were in Hong Kong, and during Chinese New Year 1994, as well, the applicant was on the Mainland when the adoptive parents were in Hong Kong. It would be odd indeed, had he no family ties in the Mainland, if the applicant were to choose to spend Chinese New Year with an adopted sister in Shenzhen rather than with his Hong Kong family, in Hong Kong. There were other times when the applicant was aged but 12 and 13 years when he was on the Mainland for up to six or seven days at a time without Mr Yu or Madam Wong.

49. What the Director has done is to put these various factors together - the household registration document, and the failure in 1986 to mention the applicant as an adopted son when providing information about the family, and the visits by the applicant to the Mainland, especially at Chinese New Year, when the adoptive parents were in Hong Kong, and has allowed himself to doubt the contention that the applicant has no family on the Mainland. I do not think that it can be said that these doubts are at all unreasonable, let alone illogical or irrational.

Natural justice - a further aspect

50. It is said that nonetheless the applicant ought to have been given an opportunity to answer these doubts, particularly the suspicions about his ties on the Mainland and about his trips there alone. It is said that he could have answered them. This is the one further aspect to which, at the end of the section of this judgment entitled "The failure to give reasons", I said I would return.

51. It seems to me difficult to cull, either from principle or from the facts of the case, an obligation on the part of the respondent to offer to the applicant an opportunity to comment upon the respondent's evaluation of the applicant's case as to compassionate circumstances. There are immigration cases where the reason for making a particular order goes beyond the fact that a person is an illegal immigrant and where the reasons are personal to the applicant; for example, that he is an undesirable character. In such circumstances, the reasons "may require that as a matter of fairness the person affected should have the chance of responding to them." (see Mason J, as he then was, in Kiao & Others v West & Others [1985] 159 CLR 550, 586). But the reason for making the removal order in this case was not the fact that the applicant had family on the Mainland. The reason for making the order was that the applicant was an illegal immigrant; and there is in such circumstances generally no duty to disclose to such a person the material upon which the Director intends to rely, or to enter upon a debate with him about that material. It is of course open to the person in respect of whom a removal order is made to seek to persuade the Director to consider compassionate circumstances in the hope that such circumstances might effect an exceptional course, namely, the revocation of the order, and it is open to the Director to consider such representations. But the fact that he does consider them should not then be turned into a weapon by which to argue that the Director is then obliged to put to the applicant piece by piece his evaluation of material relevant to the applicant's representations. (Indeed, to allow that to happen would be to discourage the immigration authorities from considering representations which, as a matter of law, they are not obliged to consider.)

52. The point was made in Kiao, in relation to the grant of an entry permit that :

So, too, in this case. The applicant chose to make representations to the Director and invited his attention to personal circumstances which, he suggested, were of such compassionate force as warranted a change of heart on the Director's part. It seems to me that the Director, in considering such representations, was entitled, in the context of the exercise of his powers under sections 13 and 19 of the Immigration Ordinance, to reject them without further reference to the applicant, especially so since the information upon which the Director drew his conclusions came from the applicant himself and from records which the applicant has accepted as accurate.

Conclusion

53. There are in the event not shown grounds which suffice to impeach the decision-making process, or the decisions made by the Director. The applications to quash the removal order and the decision of the respondent of March 1999 are therefore dismissed. There will be a costs order nisi that the applicant shall pay to the respondent his costs of and occasioned by this motion, such costs to be taxed if not agreed.