In re Tan Te Lam and Others

1995 M.P. No. 1073

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an application for leave to apply for judicial review of a decision made by the Director of Immigration on 21st April. The decision challenged relates to 3 Vietnamese migrants and their families. They make up the 13 Applicants. They had all been detained under section 13D(1) of the Immigration Ordinance (Cap. 115) pending their removal from Hong Kong. On 24th January, I declared that the continued detention of the 3 migrants, i.e. the first 3 Applicants, under section 13D(1) pending their removal from Hong Kong had become unlawful, and I ordered their immediate release from detention. However, the Court of Appeal took a different view of the facts and the law applicable to them. Under our system, its view prevails over mine, and accordingly the Court of Appeal quashed my order releasing them from detention.

2. After considering representations from the lawyers for the migrants and their families, the Director of Immigration required all of them to report to Queen's Pier on Monday, 24th April, at 7:45 a.m. for their return to Tai A Chau Detention Centre. That is the decision under challenge. As it turned out, the Director of Immigration suspended the enforcement of his requirement until 5:00 p.m. that day, so as to give the Applicants time to apply to the High Court for leave to apply for judicial review of his decision. The enforcement of the requirement has been further suspended since then until the conclusion of today's hearing. All references in this judgment to sections of an ordinance are to sections of the Immigration Ordinance, and all references to "the Director" are references to the Director of Immigration.

3. This application has attracted considerable publicity, and it is important, I think, to emphasize to the non-lawyers who are following and reporting on this case that the grant of leave to apply for judicial review of the decision of the Director does not mean that I am satisfied that his decision was unlawful. The grant of leave would simply mean that I thought that one or more of the arguments for saying that his decision was unlawful were sufficiently strong to warrant the holding of a full hearing to determine whether the arguments were indeed correct.

4. I should also say that if a court decides to give leave for an application for judicial review to be made, the practice is not to give reasons for that decision. The reason for that is that if there is to be a full hearing relating to the legality of a particular decision, then the less said at the leave stage the better.

5. The challenge to the decision of the Director proceeds on the assumption that he had a discretion as to whether to require the return of the Applicants to detention. At one stage, I had strong doubts as to whether that assumption was correct. In the case of each of the first 3 Applicants, the Refugee Status Review Board ("the Board") had confirmed the decisions to refuse them refugee status. As it was entitled to do under section 13F(5), the Board made further orders for their detention (and I assume the detention of their families) under section 13D(1) pending their removal from Hong Kong. Section 13F(5) expressly required the Director to give effect to those decisions.

6. For a period of time, the Director was unable to give effect to those decisions. That period of time was from when I had declared the detention of the first 3 Applicants to be unlawful. However, the decision of the Court of Appeal had the effect of rendering their detention lawful once again. The consequential effect of that was that the Director was once again required under section 13F(5) to give effect to the decisions of the Board to detain the first 3 Applicants and their families pending their removal from Hong Kong. In view of one of the arguments deployed today by Mr. Gerard McCoy for the Applicants, I should add that the Director would not be giving effect to those decisions if, for example, he directed that the Applicants need not report for their redetention while there was a pending appeal to the Privy Council.

7. In those circumstances, the question which arises is this : if the effect of the decision of the Court of Appeal was to require the Director to give effect to the orders for detention made by the Board, where is there any room for the exercise of a discretion ? In my view, the answer can only lie in section 36(1) which provides, so far as is material, as follows :

"An immigration officer ...... may require a person -

(a) who is detained under section 27, 30, 32 or 34; or

(b) who, being liable to be detained under any of those sections, is not for the time being so detained,

to enter into a recognizance in the prescribed form in such amount and with such number of sureties as the Director ...... may reasonably require; and where a person who is so detained enters into such a recognizance he may be released."

Accordingly, the discretion of the Director to release any of the 3 Applicants or their families on recognizance arose only if they were, on 21st April, liable to be detained under section 27, 30, 32 or 34. Of those 4 sections, only section 32 is relevant. Section 32(1)(a) provides :

"A person who is to be removed from Hong Kong under section 18 or 13E ...... may be detained until he is so removed, and may be so detained for not more than 48 hours under the authority of an immigration officer and thereafter under the authority of the Director."

Accordingly, the discretion of the Director to release any of the 3 Applicants or their families on recognizance arose only if they were, on 21st April, to be removed from Hong Kong under section 18 or 13E. Of those two sections, only section 13E is relevant. Section 13E(1) provides :

"The Director may at any time order any Vietnamese refugee or person detained in Hong Kong under section 13D to be removed from Hong Kong."

Accordingly, the discretion of the Director to release any of the 3 Applicants or their families on recognizance arose only if, by 21 April, orders for their removal under section 13E(1) had been made.

8. It is now apparent that section 13E(1) orders were made for their removal immediately after the delivery of my judgment on 24th January. I have seen a copy of those orders. It is not necessary for me to decide why that was done, but I have been told by Mr. William Marshall Q.C. for the Director that it was done because if the Applicants were to work in Hong Kong, they needed a document recording their entitlement to work, and the only document which could authoritatively be used for that purpose was a document recording their release on recognizance under section 36(1). Section 13E(1) removal orders were therefore made in order to trigger the Director's power to release the Applicants on recognizance under section 36(1).

9. However, Mr. Marshall argues that those section 13E(1) removal orders did not have the effect of conferring on the Director on 21st April a discretion to exercise his powers under section 36(1) because those section 13E(1) removal orders were not valid. That, says Mr. Marshall, is because on the date and time when they were made, there were no valid section 13D(1) orders in force, since I had earlier on 24th January declared the detention of the 3 Applicants to have been unlawful. I do not believe that that argument defeats the validity of the section 13E(1) removal orders on 21st April. In my view, there are arguable grounds for saying that the section 13E(1) orders, even if they were invalid on 24th January when they were made, became valid on 12th April when the section 13D(1) orders were revalidated by virtue of the decision of the Court of Appeal quashing my order that the Applicants be released. If that argument is right, the Director did indeed have a discretion on 21st April as to whether or not to require the Applicants to report for their redetention.

10. I turn, in those circumstances, to the exercise of that discretion. Having read with care the detailed grounds set out in the Notice of Application for leave to apply for judicial review, and having considered Mr. Marshall's succinct response to them, I am satisfied that arguable grounds do exist for challenging the exercise of the Director's discretion to require the Applicants to report for their redetention. Accordingly, I give the Applicants leave to apply for judicial review of the Director's decision of 21st April. I shall, in a moment, be asking counsel to address me on the Applicants' claim for interim relief, but before I do that, I should record that a considerable amount of work was done by the Applicants' solicitors and counsel in preparing their detailed representations to the Director, in drafting the Notice of Application for leave to apply for judicial review, and in preparing for today's hearing. Once again, that work has been done on a pro bono basis. I mention that only because, in my view, that is something which should be publicly recorded.