WONG CHI-WANG v. DIRECTOR OF IMMIGRATION

M.P. 1988 No. 1162

IN THE HIGH COURT OF JUSTICE

HONG KONG

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. Wong Chi-wang (the applicant), obtained leave to seek judicial review by an order of Mayo, J. which was made on the 1st July 1988 in respect of a decision of the Immigration Tribunal made on the 31st May 1988.

2. The applicant claims to be the son of Wong Lai-yik, the applicant in M.P. 1189 of 1988 in which case I have just delivered judgment. He also alleges that Madam Law Sui-fong is his mother. He produced a birth certificate before the Immigration Tribunal claiming that he is the person named in the certificate as Wong Chi-wang having been born in Hong Kong on the 12th August :-1963:

3. His testified before the Tribunal that he lived in Hong Kong from his birth until the 7th November 1967 when he went to live with his father in China and remained there until he returned to Hong Kong illegally in March 1987. In April 1988, he was served with a Notice of Removal Order on the grounds that he had landed in Hong Kong unlawfully.

4. His appeal to the Immigration Tribunal against the Removal Order was dismissed on the 31st may 1988 on the ground that he had not discharged the onus of proof on a balance of probabilities that he was the rightful owner of the birth certificate so that he had not established that he was a Hong Kong resident.

5. The applicant applies for an order of certiorari to quash the decision of the Tribunal on the grounds of unreasonableness under the Wednesbury principles.

6. The Tribunal considered the evidence of a number of witnesses including Wong Lai-yik, the alleged father, and other witnesses who claimed that they are related to the applicant who testified that the person named in the birth cerificate is the applicant. However, that evidence clearly did not impress the Tribunal for they observed in their decision that they were all local witnesses who gave the same evidence whilst the father gave a different set of evidence. The evidence was described to be all too similar to be true. In other words the Tribunal considered that the witnesses had got their evidence together for this purpose.

7. The decision of the Tribunal was one of fact based upon the Tribunal's impressions of the witnesses, their demeanour and the evidence that was given. This court cannot interfere with that decision unless, as I said in the previous judgment it was illegal, irrational or quite contrary to common sense.

8. Upon the evidence the Tribunal was entitled to find that the applicant was not the person referred to in the birth certificate, which decision was solely within their province. This court, as I have said, is not entitled to interfere in those circumstances with the result that the motion must be dismissed with costs.