In re HUANG JING

HCAL63/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST NO. 63 OF 1998

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J U D G M E N T

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1. This application comes before me upon an urgent footing. It is an application for leave to apply for judicial review of a decision of the Director of Immigration dated 7th August 1998, whereby the Director has refused the applicant permission to take up residence in the Hong Kong Special Administrative Region.

2. The background to this case is, broadly speaking, as follows. The applicant, Madam Huang, is normally a resident in Mainland China. She first came here in January 1988, and then the following year departed for Tonga where she obtained a passport issued by the authorities there. She arrived back in Hong Kong and was permitted to remain as a visitor. She came back to Hong Kong from time to time, and on one occasion arrived with a false passport, in consequence of which a removal order was made. That was in 1991.

3. Madam Huang gave birth to a female child in Hong Kong and that child, who still resides here, is aged about nine years. It is said that the child suffered from a serious accident in 1990, as a result of which she had since required considerable medical attention and suffers, amongst other thing, from epilepsy.

4. Madam Huang lodged an appeal against the removal order in 1991, but upon an agreement with the Director of Immigration, that appeal was abandoned. Amongst the conditions which were agreed were these : that Madam Huang would leave Hong Kong before 28th February 1993, that she would be allowed to visit Hong Kong on genuine purposes subject to Hong Kong's immigration control, and that she would apply to the court to make her child a ward of court with care and control granted to a responsible person under the supervision of the Director of Social Welfare.

5. An application to make the child a ward of court was in due course made, and a social investigation report, which I have seen, dated 2nd June 1994, was filed. It is a detailed report which states the condition of the child and the circumstance of her care by another lady to whom Madam Huang had entrusted her. Whilst the child was still then receiving attention from time to time, she attended school and was said to have gained a good recovery from her disabilities.

6. Madam Huang continued to visit Hong Kong from time to time, and in February 1996 married a Hong Kong resident. Her husband is a holder of an American passport who has been residing in Hong Kong since 1991. Madam Huang and this gentleman have been living together in Hong Kong. He is a manager of a construction firm. Madam Huang has testified in an affirmation before me to her concern about the health of her daughter, who, she said, is unable to take part in ordinary social or school activities. She is anxious that she be allowed to remain in Hong Kong as a resident in order to look after her.

7. On 4th June 1998, an adoption order in respect of the child was made in the High Court in favour of Madam Huang and of her husband. Madam Huang applied for a change of status most recently that she be permitted to be classified as a Hong Kong resident so that she might continuously reside here with her daughter and her husband. She engaged solicitors. On 8th June 1998, those solicitors, M/s Laurence Pang & Co., wrote to the Director of Immigration a lengthy and detailed letter, addressing her application to become a Hong Kong resident. That letter sets out the family's circumstances in detail, and amongst the documents sent to the Director of Immigration are a progress summary by the Social Welfare Department relating to the girl, and the child's assessment report made in August 1994 by the Department of Health. The medical care and treatment which it is said that the girl, Yeung Tan Ni, requires, is detailed.

8. By letter dated 7th August 1998, the Director of Immigration advised Madam Huang's solicitors as follows :

"..... I regret to inform you that her application is refused on the following ground :

Under the existing immigration policy, a former PRC national holding a passport issued by Tonga is not eligible to apply for residence in the HKSAR unless she has resided outside the Mainland china and the Region of Macau continuously for a period of not less than two years immediately before her application. We are not satisfied that Madam Huang has fulfilled the residential requirement.

We have made careful consideration of her case, including welfare of her daughter Tan-ni. We also understand Madam Huang's concern and enthusiasm over her application. However, we are not able to find justification for a departure of the existing policy after taking into consideration of all the information available and circumstances of her case.

She is permitted to remain as a visitor until 14 Aug 1998. She is required to leave the HKSAR on or before that date."

9. The relief sought in the Notice of Application is for a declaration that the decision of the Director is against the rules of natural justice or Wednesbury unreasonable; an order of certiorari to quash the decision; an order of mandamus to the Director to act according to law; an order that the applicant serve interrogatories on the Director of Immigration requesting justification for the decision, and a direction that the hearing for judicial review be expedited.

10. I pause to comment that most of the orders sought are otiose even were the application one which had merit. The only order which it would be necessary to seek is an order of certiorari. An expedited hearing is an inappropriate application. What would be necessary would be an order that the implementation of the decision be stayed.

11. The application itself is, with respect, inadequately drawn. It specifies in the barest terms conceivable the grounds on which the relief is sought. They are not explained in any way. It is simply said that the decision was made after taking into account irrelevant factors or in neglect of relevant factors, without stating what irrelevant factors were taken into account and what relevant factors were not. It is said that the decision was Wednesbury unreasonable, without suggesting why.

12. Be all that as it may, I now turn to the merits of the application for leave, as they have been advanced by Mr Chui. The court does not, in these circumstances, I am sure Madam Huang will understand, put itself in the shoes of the Director to make the decision which he is required to make. The court merely decides whether there is an arguable case that the Director has not acted according to law. The question is whether the applicant has made out a prima facie case that something has gone wrong of a nature and extent which might call for the exercise of the judicial review jurisdiction of this court.

13. Insofar as it is suggested that the decision of the Director of Immigration was irrational, the decision in question was one which is within the discretion of the Director to make. It is quite evident from the exchange of letters which I have seen, that he has taken into account the circumstances of the girl, and of the applicant. Something much more than that which has been shown must be shown in order to raise a case of irrationality.

14. It is clear that in coming to his decision, the Director has applied, or purported to apply, a policy. But it is also clear that he has not done so without considering the facts of this particular case in order to ascertain whether it justifies a departure from that policy. That as a matter of law is a perfectly acceptable approach.

15. It is then suggested that he has not taken into account relevant factors. That is not established even on the barest of bases. The evidence before me is quite to the contrary, and it is that the applicant's circumstances have been placed fully before the Director. It is suggested that she has taken into account irrelevant considerations such, for example, as the fact of this lady's infraction of the law in 1991 or 1992 regarding the false passport. There is not a scintilla of evidence to suggest that that is so.

16. It is then argued that the grounds for review might reveal themselves once interrogatories are served and answered. In other words, what I am asked to do is to authorize a fishing expedition to see if something might emerge. That is not permissible.

17. Finally, it is said that there has been a breach of the rules of natural justice, in that no formal interview of the applicant has taken place. In my judgment, no reason has been shown as to why any formal interview was required. It is self-evident that full representations have been made by lawyers acting on behalf of the applicant, and that they have been considered. That is all that natural justice requires.

18. In the circumstances, I have come to the conclusion that an arguable case for the granting of leave has not been shown, and accordingly, the application for leave is refused.

(F. Stock)

Judge of the Court of First Instance, High Court