RE HUI HO-WAH

HEADNOTE

Judicial Review - The Applicants were seeking the review of the decision of an Immigration Tribunal which had declined to hear their evidence pursuant to section 53C of the Immigration Ordinance, Cap. 115.

They had failed to specifically refer to the Director of Immigration having granted them permission to remain in the Colony.

Held: Their claim to be holders of lawfully issued Hong Kong Identity Cards was sufficient to imply such permission. The fact that Identity Cards are issued by the Commissioner of Registration of Persons and permission to remain in the Colony is given by the Director of Immigration is immaterial.

Order of certiorari made quashing the decision of the Immigration Tribunal and an order of mandamus made requiring the Tribunal to hear the Applicants' appeal.

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JUDGMENT

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1. The applicants in these applications for judicial review are a brother and sister and as the circumstances of their cases are similar I heard both applications at the same time.

2. According to the affirmations filed the applicants were born in Macau and at a fairly tender age went to China. In 1970 they returned to Macau as illegal immigrants and then came to Hong Kong in 1972, also as illegal immigrants. In September 1980 they both responded to the notices which were issued by the Director of Immigration at that time to illegal immigrants in the Colony and presented themselves to the Immigration Authorities. They furnished the Director of Immigration with information concerning themselves. The applicants claim that in July and August 1981 they were issued first with temporary identity cards and thereafter with permanent identity cards.

3. Both applicants were arrested on the 31st January 1984. On the 15th March 1984 the Director of Immigration made removal orders against both applicants. When the removal order was served upon the applicants they were given a copy of the Director's summary of facts and reasons for the removal order. It is evident on perusing this summary that the Director of Immigration does not accept the information which the applicants gave to officers in his Department or the facts which I have outlined in the introduction to this judgment. In addition to this there is a statement in the summary which reads as follows:

“After arrival they obtained their Hong Kong Identity Cards on the 9th July 1981 by paying a total of $120,000 and posing as legal entrants from Macau in 1970.  Since then they had used the identity cards as their identity documents in Hong Kong until they were located by Immigration Officers on the 31st January 1984."

4. The appellants then filed a notice of appeal against the removal orders. The appeal was in accordance with the provisions contained in section 53A of the Immigration Ordinance, Cap. 115. The form of notices of appeal lodged by the applicants were couched in similar form and the operative part reads as follows:

 

Section 53A (1) of the Immigration Ordinance reads:

"A person against whom a removal order has been made by the Director of Immigration or the Deputy Director of Immigration may appeal to the Tribunal against the removal order on the ground that on the facts of his case

5. The applicants' appeals were not successful. They were notified on the 21st March 1984 by the Immigration Tribunal that the grounds disclosed in their notice of appeal were not matters which would entitle them to succeed in the appeal.  Section 53C of the Ordinance provides:

"Where the Tribunal, upon an examination of the written grounds of appeal on which a person appealing under section 53A seeks to rely, is satisfied that the fact or matters on which the appellant is seeking to rely are matters which would not entitle the appellant to succeed in the appeal, it may dismiss the appeal without a hearing and in any such case it shall cause a written notice of such dismissal to be given to the appellant and to the Director of Immigration."

6. Mr. Walters, who was representing the applicants, argued that it was manifest on the face of the notice of appeal that the applicants claimed to have lawful identity cards and it was evident from the notice of dismissal of the appeal by the Immigration Tribunal that it had failed to address itself to this issue. He complained that the applicants had been afforded no opportunity of placing before the Tribunal evidence to establish the truth of their assertions. He went on to argue that it would be wholly improper for the Immigration Tribunal to consider any extrinsic evidence which may be available in this respect from other sources and accordingly on the face of it there had been no proper adjudication of the issue. This being the case the Court should grant the relief which was being sought by the applicants.

7. Mr. Graham, for the Immigration Tribunal, submitted that Mr. Walters had misunderstood the position. He had attempted to equate the possession of an identity card with permission of the Director of Immigration to remain in the Colony. They were entirely separate matters. It could be seen from the Registration of Persons Ordinance, Cap. 177, that it was the Commissioner of Registration of Persons who was seized with the responsibility for issuing identity cards. The functions this officer exercised were quite separate and distinct from those of the Director of Immigration. This distinction had been accepted by the Court of Appeal in Mak Yui Ming & Others v Attorney General ⁽¹⁾.Mr. Graham went on to argue that there was nothing in the notice of appeal which had been filed by the applicants which indicated that they were claiming to be in possession of the permission of the Director of Immigration to remain in Hong Kong which was the only relevant matter in the circumstances of this case that fell within the ambit of the issues to be considered by the Immigration Tribunals

8. I accept the distinction which Mr. Graham makes between the functions exercisable by the Commissioner for Registration of Persons and the Director of Immigration. I do not though think that this distinction is of significance in the present case. There is nothing that I can find in the Immigration Ordinance or its subsidiary legislation which requires that any grounds of appeal contained in a notice of appeal are required to be in a prescribed form. I accept that neither of the applicants specifically makes a claim that they are in possession of permission from the Director of Immigration to remain in the Colony. However, at the very least it is possible to draw an inference that the applicants are indeed claiming that they do have a right to remain in the Colony and accordingly have the permission of the Director. I am satisfied that if I was to refuse the relief which is being sought in these applications I would be placing an altogether unduly restrictive approach to. the drafting of a notice of appeal. In my view the interests of justice are much better served by adopting a liberal interpretation to the contents of a notice. I also consider it to be desirable that there should be an adjudication of the issues which have been raised by the applicants. For these reasons I make an order of certiorari directed to the Immigration Tribunal to quash its determination of the 21st March 1984 and I make an order of mandamus directed to the Immigration Tribunal to reconsider the appeal. The applicants will have their costs.

(1)1981  H.K.L.R 435