CHEUNG YUK SAI v. THE DIRETOR OF IMMIGRATION

IN THE COURT OF APPEAL

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JUDGMENT

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Headnote: Effect of Section 43 Interpretation and General Clauses Ordinance

Silke, J.A.:

1. Cheung Ching Nuen, a fifteen years old girl, landed in Hong Kong at the end of October 1984 unlawfully. On the 21st October 1984, she, and her two sisters aged 14 and 12 who had arrived with her, reported to Immigration accompanied by her father. There were then present lawfully in Hong Kong her father, mother, elder sister and a brother.

2. Having reported, the three girls were issued with white cards. On the 22nd January 1985, they returned to the Immigration Department and saw a Mr. Chui, an Immigration Officer, and the height of Cheung Ching Nuen was questioned. The party returned after lunch and, after an unnamed senior officer had come into the room to consider the height of the girl, it is averred by the father, Cheung Yuk Sai - the appellant here - that Mr. Chui told the family that "all the three children who came together illegally will be allowed to stay in Hong Kong".

3. All the children were given a form called ROP 85 and the father states that he was told by Mr. Chui that Cheung Ching Nuen could not work as she was under age.

4. On the 22nd April 1985, there was a visit to the Immigration for the purpose of extending the duration of the ROP 85. The appellant was told this was unnecessary.

5. On the 18th February 1986, Immigration Officers conducted a search of the father's home. He was asked to explain how a name, which was different from that of the girl, appeared upon travel documents found during that search. On the 12th March 1986, the girl was arrested.

6. On the following day a removal order was made. An appeal to the Immigration Appeals Tribunal was lodged within the required 24 hours. The Notice of Appeal set out two matters for the consideration of the Tribunal. The first that, on the facts of her case, she had "express permission"

"from the Immigration authorities one Mr. Chui, and/or the Director of Immigration on the 22nd January 1985, that she will be allowed to remain in Hong Kong permanently."

This is the matter which concerns us.

7. The Immigration Appeals Tribunal acted under the provisions of section 53C of the Immigration Ordinance Cap. 115 - "the Ordinance". This reads:

"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 facts 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 written notice of such dismissal to be given to the appellant and to the Director of Immigration."

8. It cannot be easy within a 24-hour period for someone who may not be represented to present comprehensive written grounds which, once presented, form the only grounds upon which the Tribunal considers whether or not there should be a hearing. Be that as it may, the Tribunal on the 17th March informed the appellant that, having examined the Notice, it was satisfied that the facts and matters upon which the girl sought to rely were not matters which would entitle her to succeed in the appeal. The appeal was dismissed without a hearing.

9. On the 24th March 1986, an application was made to the Court for leave to apply for judicial review. His Honour Judge Downey, sitting as a Deputy High Court Judge, refused this on the 1st April 1986. He considered the matter of the "express permission to remain" in the grounds in the Notice of Appeal and of this he said:

"If that were true, the appellant would be entitled to succeed in her appeal by virtue of section 53A(1)(b). Accordingly, it would seem that the Tribunal erred in law in deciding to dismiss the appeal without a hearing."

He did not think the supporting affidavit, which, we are told, is subsumed in the affidavit before us, to show that such permission was given by the "Director, the Deputy  or an Assistant Director" - the definition of "Director" in section 2 of the Ordinance. He considered the decision of Penlington J. in Choy Yi Wong, ⁽¹⁾ where it was held that an Immigration Officer does not have the authority to grant permission to remain in the case of an illegal immigrant - the only authority being that of the Director. As to the matters in the second ground, which I have not thought necessary to set out, he thought them to be covered by decision of this Court in Chen Chiu Lin v. The Director of Immigration .⁽²⁾ He concluded that there were no matters which showed any legal merit or "any arguable prospect of success" in this case.

10. In Wong Shu Hung,⁽³⁾ Mantell J. summarized section 53C as meaning that if the Notice contains a reasonably arguable ground of appeal, then there must be a hearing by the Tribunal. A reasonably arguable ground must be within one of the two matters set out in very narrow section 54A - that is a legal landing in Hong Kong or a permission having been granted to remain in Hong Kong. These, if they are to have any hope of success, must be capable of being supported by the facts and the matters relied upon in the Notice. This interpretation was adopted by another Division of the Court in Yip Chi Lin v. The Director of Immigration.⁽⁴⁾

11. The attention of the trial judge was not drawn to the provisions of section 43 of the Interpretation and General Clauses Ordinance, Cap.1 - nor was its effect argued before Penlington J. It is a point raised by and in this Court for the first time.

12. Section 43 relates to the delegation of his duties by a "specified officer". For the purposes of the Immigration Ordinance, the Director of Immigration is the "specified officer". If a public officer carries out duties entrusted to a "specified officer", then, under the provisions of subsection (3) of the section, he is presumed to have been delegated to carry out those duties until the contrary is proved.

13. The allegation here was not, as has happened in the past, of some form of implied permission but of an "express permission".

14. That being so, the trial judge was, with respect, quite right when he held that the Tribunal on the face of the record erred in law in deciding to dismiss the appeal without a hearing - The Notice went directly to one of the grounds contained within section 54A. With equal respect, he was wrong to say, in the light of section 43, that there was no arguable prospect of success. I would stress the word "arguable". For whether or not section 43 comes in to play, depends upon evidence and, while the affidavit here is not as definitive as it might be on this aspect, it is something which falls to be considered upon judicial review and upon the evidence adduced at the hearing.

15. We intend to give leave. The hearing of any review - and it is for the appellant on advice to decide whether these proceedings should continue - should take place at the earliest possible moment. This matter has been outstanding for an unconscionable period of time. It cannot be right, whatever policy decisions might be pending, that a 15 years old girl should be kept for over a year in limbo and with the strong likelihood of there being raised in her mind a reasonable expectation of her being allowed to stay with the rest of her family. This goes to the humanitarian aspect of this case but is not a factor which can, in law, be for the consideration, in these proceedings, of this Court or indeed for the Tribunal.

16. We would, therefore, allow this appeal and grant leave to apply for judicial review.

Costs

Having heard counsel on both sides, there will be no order as to costs.

(1)    M.P. No. 2595 of 1985 (unreported)

(2)    Civil Appeal No. 20 of 1986 (unreported)

(3)    M.P. No. 228 of 1985 (unreported)

(4)    Civil Appeal No. 144 of 1985