AMRITA THAPA v. THE COMMISSIONER OF REGISTRATION

HCAL45/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO. 45 OF 2000

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J U D G M E N T

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1. This is an application by a married woman of Nepalese nationality who seeks, by way of judicial review, to quash the decisions of the First and Second Respondents. It was the decision of the Second Respondent to refuse the Applicant a Hong Kong identity card. It was, on appeal, the decision of the First Respondent to confirm that refusal.

2. It is the Applicant's case that both decisions were irrational, as that term is understood in its Wednesbury context, because they failed to give due and proper credit to a large number of documents submitted by the Applicant in support of her claim for the issue of an identity card to her.

3. The background facts may briefly be described as follows. The Applicant avers that she was born in Hong Kong to a father who, at the time, was serving with one of the Gurkha battalions here. Her father was a non-commissioned officer in the Gurkhas and it is not disputed that, while in Hong Kong, a child was born to the father at the Gurkha Family Hospital on 16 September 1963. No name appears on the birth certificate. All that appears is that the child was a girl. The Applicant says that she is that girl and, being born in Hong Kong, has a right to the issue to her of an identity card.

4. In terms of the Registration of Persons Ordinance, Cap. 177, the First Respondent ('the Tribunal') has jurisdiction to hear and decide any appeal by a person who is aggrieved by a decision of the Second Respondent not to issue a permanent identity card. As to the burden of proof on such appeals, Regulation 21(2) reads:

"If, in any proceedings with reference to any decision or act done or proposed to be done by a registration officer under any of these regulations, a person claims -

(a) that he enjoys the right of abode in Hong Kong; or

(b) that he is entitled to a permanent identity card,

the onus of proving the same shall lie on that person."

5. It is apparent, therefore, that at all times the burden lay on the Applicant to prove, on a balance of probabilities, that she was indeed the child born in Hong Kong in September 1963. This burden was recognised by the Tribunal in its written ruling of 4 November 2000 which, in this regard, reads:

"Having reviewed and considered all the evidence produced by and given on behalf of the appellant, and in view of the various discrepancies as appears thereto and mentioned above, we are of the opinion that the appellant has not proved, on the balance of probabilities, that she is the unnamed person in the birth certificate produced by her and as a result we have no alternative but to dismiss this appeal."

6. The Applicant has today appeared without the benefit of counsel. At the beginning of the hearing, therefore, I made it clear to her that these proceedings are review proceedings and are not what is commonly understood as appeal proceedings. I made it clear to her that the Tribunal had the responsibility of making the decision on the facts, it is not a responsibility given to this Court. I went on to explain that it is only when the decision is unlawful (in its broadest sense) that the courts may intervene. This can arise because a tribunal has misdirected itself in law, or has not taken into account a consideration it is required to take into account, or because it has taken into account a consideration which it is not entitled to take into account when exercising its discretion. A court can also decide a decision was unlawful because it was reached in an unfair or an unjust manner. Finally, it can interfere if the decision is so manifestly unreasonable that no reasonable tribunal could have come to that decision.

7. But what must be appreciated is that facts - and how they are to be weighed - is a matter for the Tribunal. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body, such as the Tribunal in this instance, and the facts involve a broad spectrum ranging from the obvious to the debatable, it is the duty of the court to leave the decision to the public body to which the law-makers have entrusted the decision-making power.

8. When the Applicant commenced her submissions, she was aware, therefore, that I am not in a position to set aside the decision of the Tribunal unless it is shown that, consciously or unconsciously, the Tribunal has acted unlawfully. I regret to say that I can find no grounds for suggesting that the Tribunal in this instance has acted in that manner. Indeed, with respect to the Applicant, I would go so far as to say that the Tribunal appears to have had ample grounds for coming to the decision that it did.

9. As earlier mentioned, the Applicant placed a large number of documents before both Respondents. On appeal, the Tribunal questioned her concerning a number of these documents. However, examination of those documents, rather than supporting the Applicant, appeared to throw up a series of doubts. It is evident that these doubts satisfied the Tribunal that the Applicant had not proved her case.

10. The Applicant apparently sought the issue of the Hong Kong birth certificate through a third party living in Hong Kong. That third party put down the name of the female child as Ghita Thapa and not Amrita Thapa which is the name the Applicant goes by. The mother's name was also spelt differently from that appearing on the birth certificate. This discrepancy was later explained by the third party by saying that some of the information received from Nepal had been unreadable. The Tribunal, understandably, expressed concern that the third party should proceed to fill out the detailed application form by 'guessing' at some of the most important information.

11. Speaking generally, it is plain that the Tribunal went to considerable pains to study and consider each of the documents submitted by the Applicant. What the Tribunal noticed was that all of the documents had been obtained after the birth certificate had been issued in Hong Kong on 24 September 1998. Even the Applicant's own daughter's birth certificate was issued after that date.

12. I raised the point with Mr Fitzpatrick, who appeared for the Respondents, that it seemed to me the Tribunal was being perhaps a little harsh in finding it to be 'inconceivable' that the Applicant should have obtained all her documents only after the issue of the Hong Kong birth certificate. I stated that, in my view, that was not a finding that took into account either the way of life or the grave difficulties that often encounter persons living in countries such as Nepal in obtaining relevant documentation from often far-flung Government offices. Mr Fitzpatrick accepted that, in isolation, the words of the Tribunal may perhaps be criticised as being unfortunate, but he emphasised the fact that, clearly, the Tribunal was taking note of a large number of documents all of which post-date the issue of the Hong Kong birth certificate, and all of which therefore could so easily have been altered to try and fit in with the relevant information in that birth certificate. Mr Fitzpatrick emphasised the fact that there were no documents at all that manifestly pre-dated the issue of the Hong Kong birth certificate; for example, no old photographs or anything of that kind.

13. On this basis, I must accept the force of Mr Fitzpatrick's argument. More particularly, I note that the Tribunal did search for some document which pre-dated the issue of the Hong Kong birth certificate and, for a time, appeared to have such a document. It is a school certificate. In regard to this document, I can do no better than quote from the ruling of the Tribunal:

"The appellant produced a transfer certificate issued by the Headmaster relating to her schooling. The appellant insisted that the said transfer certificate was an old document of hers and was issued to her when she left school in 1983. However, the said transfer certificate states by saying that 'This is to certify that Mrs Amrita Thapa, daughter of Mr Man Singh Thapa ...'. One could not help but wonder how the Headmaster could have anticipated the appellant's marital status in 1983 when she graduated from school and was then single.

Upon being pointed out by Dr Tse, one of the adjudicators who is an expert in computer science, that the said transfer certificate was produced by means of a laser printer, a recent technology not common in 1983, the appellant reluctantly admitted that the said transfer certificate was obtained by her in replacement of an old one issued in 1983. This admission tends to cast doubt on the appellant's creditworthiness as a witness."

14. I have already mentioned that an examination of virtually all the documents, rather than helping the Applicant in this matter, raised further doubts. For example, there were two death certificates which were placed before the Second Respondent. But those death certificates - related to the Applicant's mother and father - did not support information issued by the British Army on their deaths. It appears, however, that the Applicant was able to obtain new documents from Nepal without any real supporting evidence, the new certificates giving dates of death that agreed with the British military records. Understandably, the Tribunal was puzzled at the ease with which the Applicant had been able to amend the death particulars of her parents without the necessity of any proof produced to the Nepalese authorities.

15. Another example of the doubts that arose is contained in a comparison of two documents, both apparently signed by the Applicant's late father, the person through whom the Applicant has sought her identity card. In one document, a vaccination certificate, the signature of the father is affixed and, seemingly, it is dated 1967. However, in another book, namely a certificate of service document, dated just a year later, the signature of the father appears again and appears to be substantially different. The Applicant told the Tribunal that she had no idea how that discrepancy could have occurred, and of course had no way of checking with her father who is deceased. Nevertheless, in my view, the Tribunal was entitled to take the discrepancy into account in determining what weight to place on the documents.

16. There is no need for me to continue this litany of various problems thrown up by the documents. Suffice to say, in my judgment, the Tribunal clearly went through matters methodically and carefully. I can find no mistake in law, nor any inference drawn from the evidence which suggests perversity on the part of the Tribunal.

17. In short, I am satisfied that the Applicant has failed to show that, in any way whatsoever, the decision of the Tribunal (or the Second Respondent) in this matter was Wednesbury unreasonable or in any other way unlawful. Her application for the issue of an identity card appears to have been dealt with fairly and competently and, in all the circumstances, the application must be dismissed.