CHAN SAU MUI AND OTHERS v. DIRECTOR OF IMMIGRATION

1992, No.MP 356

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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R U L I N G

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1. This is a third application mounted on behalf of the applicants, the purpose of which is for cross-examination of the Deputy Director of Immigration on an aspect in his first affidavit.

2. The wife applicant, in her affirmation in support of the application for leave, claimed in paragraph 7 that the applicants had "no relative to assist" them. In paragraph 21 of the husband's affirmation filed on the same day as the wife's affirmation, i.e. 11th February 1992, he stated the following :-

"There will be nobody to take care of my children ..... I also have no close relative in Hong Kong who will assist me in taking care of my children,"

In paragraph 13 of the affidavit of the Deputy Director of Immigration filed on 26th March 1992, in giving reasons for, the decision taken on the application to allow the wife applicant to remain in Hong Kong for six months "initially", the Deputy Director of Immigration explained, inter alia, that "consideration was also given to the fact that Madam Chan's husband has a brother, brother-in-law and uncle in Hong Kong".. It is patently clear that care and attention of the minor applicants was under consideration for entertaining the application for a six months' "initial" stay of their mother. Family support was, in my view, or must have been taken into account by the Deputy Director of Immigration in his consideration of the application. A factual dispute has therefore arisen. It is common ground that the matter could not be resolved except by cross-examination. It is to that end that the applicants now seek cross-examination of the Deputy Director of Immigration on the aspect of family support which was, on my analysis, or must have been so taken into consideration by the Deputy Director of Immigration.

3. The application for cross-examination is strenuously resisted by the respondent. It is resisted as a matter of principle. Counsel for the respondent, Mr Graham, contended that so long as the position taken under s.13 of the Immigration ordinance is not absurd or outrageous, the route by which that decision was reached by the Deputy Director of Immigration cannot be enquired into, in particular, errors in findings or inferences of fact, if any, made by the Deputy Director of Immigration cannot be re-opened. Those are matters unreviewable. Therefore, the factual dispute need not be resolved. Mr Graham has led this Court through authorities which, he says, are in support of his contention. It is not out of any disrespect for the submissions, made with courtesy, of counsel that I prefer my own sequence in setting out the relevant authorities in support of what I regard as the right conclusion. Administrative law stands on its own plane, and caution should be exercised in the application of the authorities to the matter under consideration. I have chosen to approach the authorities cited in the order I am about to follow.

4. For the respondent, counsel leans heavily on an observation of Glidewell L.J. in R. v. Secretary of State for Home Affairs ex parte Harrison. I have been supplied with a transcript of a judgment of Glidewell L.J. in the English Court of Appeal in an application for discovery. At page 10, counsel for the applicant submitted the following to the court :-

"... one only needs to look at the decision itself to see that it is so unreasonable that the process by which it was reached must be flawed in one or all of the way set out. That ..... does not demand any examination of the route. In other words, ..... the claims is that the court should consider the terminus. If it finds that the terminus is irrational, then the route must be wrong -- the decision maker must have set off on the wrong road somewhere."

Glidewell L.J. agreed with that argument. Mr Graham. submits that this is a clear submission of counsel on the law as propounded, time and again, in O'Reilly and Ors. v. Mackman and Ors. [1983] 2 AC 237 and Council of Civil Service Unions and Ors. v. Minister for the Civil Service [1985] 1 AC 374. The purpose of judicial review is not to partake the deliberation functions of the authority. It is merely to supervise its decision-making process. The courts are unconcerned with its mental process in evaluation. Moreover, in judicial review, erroneous findings or inferences of fact are not open to challenge. If the decision of the authority is not irrational, so Mr Graham seeks to take it one step further, it would not be permissible to enquire into the process in which that very decision was reached. Mr Graham emphasizes the many considerations borne in mind and/or acted upon by the Deputy Director of Immigration. He draws the Court's attention to the obvious that we know not what emphasis had been placed by the Deputy Director of Immigration on each and how the Deputy Director of Immigration had balanced the different aspects of the case. Family support, a consideration taken into account of by the Deputy Director of Immigration, so Mr Graham submits, was or must have been a fact found or inferred, among others, by the Deputy Director of Immigration in his deliberation on the application for an "initial" six months' stay of the wife applicant. Rightly or wrongly the finding or inference is straightforward. On the face of it, the Deputy Director's decision on the application is certainly not irrational, and counsel thus argues that the applicants cannot be allowed in judicial review to go behind such a rational decision. After all, so Mr Graham reasons, it would be a little difficult to appreciate that the applicants, having been disallowed from seeking discovery of documents, could now be let in to challenge one of the very same aspects by their application for cross-examination.

5. Evidently, the Court must deal with one matter at a time. Further, it does not appear to me to be wholly inconsistent to reject an application for discovery in the circumstances of this case, but to allow cross-examination on the aspect of family support on the Deputy Director's 1st affidavit.

6. The application for discovery in the case of Harrison has to be more closely examined. In that case, there was no evidence that the authority had failed to "call his own attention to matters which he was bound to consider" or "exclude from his consideration matters which (were) irrelevant to what he (had) to consider". These are the words of Lord Greene M.R., uttered in Associated Provincial Picturehouses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 at p.229. In Harrison, there was clearly no evidence of the authority acting unreasonably under the Wednesbury principle. Counsel there argued that "one only needed to look at the decision itself to see that it was so unreasonable that the process by which it was reached must be flawed in one or all the ways", and counsel continued "that would not demand an examination of the route". In another words, the claim in counsel's submission in Harrison was : "The court should consider the terminus. If one fidns that the terminus is irrational, then the route must be wrong - the decision maker must have set off on the wrong road somewhere." As I have said, Glidewell L.J. accepted the proposition, but it does not follow from this analysis that with evidence of Wednesbury Unreasonableness, the authority cannot be challenged in its decision-making process for having taken into account irrelevant considerations or ignored relevant considerations. In fact, that is in my view, what judicial review is all about under Wednesbury Unreasonableness or Lord Diplock's "irrationality" in Council of Civil Service Unions v. Minister for the Civil Service, p.410, Letters D/E.

7. A decision is reviewable from its terminus or in the process by which it was reached or both. That is the decision-making process, not the mental process or evaluation. If a decision is merely assailed from its terminus without more, the route is generally not open to examination. However, the decision-making process may always be reviewed if there should be evidence of Wednesbury Unreasonableness or other ligitimate causes.

8. When dealing with the terminus in the context of the Harrison case, Lord Diplock said in Council of Civil Service Unions v. Minister for the Civil Service at p.410, Letter G :-

"It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had.applied his mind to the question to be decided could have arrived at it."

Evidently, those comments of Lord Diplock were made on the terminus, the decision itself. This position is reaffirmed in R. v. Independent Television Commission ex parte TSW Broadcasting Limited, the judgment of which was delivered on 26th March 1992. Counsel has the courtesy of providing this Court with a transcript of the speeches given in that case. Lord Templeman reaffirmed in a different way the same approach. At p.12, he said .-

"Judicial review does not issue merely because the decision maker has made a mistake and it is not permissible to probe the advice received by the decision maker or to require particulars or administer interrogatories or as Mr Pollock on behalf of T.S.W. suggested to cross-examine, in order to discover the existence of a mistake by the decision maker or the advisers of the decision makers."

Then Lord Templeman went on to discuss how a decision may be questioned, not so much at its terminus, but in its decision-making process. Lord Templeman explained the position in these words :-

"An application for judicial review must show more than a mistake on the part of the decision maker or his advisers. Where a decision is made in good faith following a proper procedure and as a result of conscientious consideration, an applicant for judicial review is not entitled to relief save on the grounds established by Lord Greene M.R. in Associated Provincial Picturehouses Limited v. Wednesbury Corporation [1948] 1 KB 223, 229:

'It is true the discretion must be exercised reasonably. Now, what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretion often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority ... that is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another'." (Emphasis supplied).

9. Lord Templeman clearly referred to how a challenge may be mounted on the decision-making process after his reminder that mistaken findings or inferences of fact are generally not amenable to judicial review.

10. As to whether what would appear to be a rational decision may be questioned in its process of decision-making whereby that decision was reached, it would seem that I have parted company with the principle sought to be maintained by counsel for the respondent. A decision is amenable to judicial review from more aspects than one. It may have, in proper circumstances, to be exclusively confined to the nature of the decision itself, particularly in the absence any evidence of Wednesbury Unreasonableness. But the decision-making process has never been known to me to be beyond the supervision of the High Court in judicial review whatever the circumstances.

11. I come then to the question of cross-examination. The nature of the issues normally arising upon judicial review would not require the aid of cross-examination. George v. Secretary of State for the Environment and Anr. 77 LGR 689, gives us an insight into the early stage of cross-examination applications in judicial review. At page 693, Lord Denning, M.R. had this to say :-

"Only one reported case has been found where there has been any cross-examination on affidavits in cases such as this or in the parallel cases on judicial review. It was Reg. v. Stokesley, Yorkshire, Justices, Ex parte Bartram (1956] 1 WLR 254. Lord Goddard C.J. said, at p.257: 'This is probably the first case in recent history in which application has been made in Crown proceedings for leave to cross-examine on affidavits.' He only allowed it in that case because it was a case of a 'very remarkable' character. It is to be noticed that in Franklin v. Minister of Town and Country Planning (1947) 45 LGR 243, both Lord Oaksey at p.246 and Morton L.J. at p.250 indicated that if application had been made to cross-examine the Minister in that case, it might have been allowed, but no application was made."

Lord Denning M.R. then proceeded to consider generally cross-examination

"It seems to me that, in general, cross-examination.should not be allowed in prerogative writ proceedings or in proceedings for judicial review or in applications like this for compulsory purchase orders. There are very good reasons for this rule. First, usually the affidavits speak as to what took place before the determining body. It may be before a planning inspector, a magistrate or someone of that kind. He may have to make an affidavit as to what took place before him. It is undesirable that he should be subjected to cross-examination. we said so in a recent case about a certification officer. If he is not to be subject to cross-examination, nor should the applicant. Secondly, experience shows that on these procedural questions there is very little conflict on the affidavits. Thirdly, one party or the other might, by means of cross-examination, try to undermine the actual findings of the inspector or other officer holding the inquiry."

"In general, therefore, cross-examination should not be allowed, but I would stress that there is nothing in law to prohibit it."

12. Moreover, we have it on good authority that "judicial review is a process which falls to be conducted with all the cards face upwards on the table and the very vast majority of cards will start in the authority's hand", per Lord Donaldson, M.R. in R. v. Lancashire County Council ex parte Huddleson (1986] 2 AER 941 at p.945, Letter g.

13. For all these reasons, seldom would a conflict on fact arise. If it does, more often than not, on being shown that a misconception of fact is included for his consideration, the authority will unhesitatingly have it put right.

14. Lord Diplock made his contribution in O’Reilly v. Mackman and Ors. (1983] 2 AC 237 at p.282, Letter G :-

"... to allow cross-examination presents the court with a temptation, not always easily resisted, to substitute its own view of the facts for that of the decision-making body upon whom the exclusive jurisdiction to determine facts has been conferred by Parliament."

15. I am not here concerned with findings or inferences of fact, which are reviewable, as an exception, only if the determination is, on its face, bad in law or absurd or outrageous. Being bad in law for a finding or an inference of fact would include absence of any evidence upon which the decision was made. See Edwards (Inspector of Taxes) v. Bairstow and Anr. (1956] AC 14, p.29. The position is clear for findings or inferences of fact. They may be reviewed only for illegality. In the field of judicial review, areas for legitimate challenges often overlap. Illegality is not a ground on which the applicants seek to rely in.this case. The only ground in their application for judicial review is Wednesbury unreasonableness. It is on this ground of irrationality alone that this Court should focus. Moreover, it need be remembered that the applicants question only whether the Deputy Director of Immigration was Wednesbury unreasonable in taking into account irrelevant considerations. No part of his findings or inferences of fact is sought to be impugned. Challenge to administrative action on relevant/irrelevant considerations grounds cannot be mounted at errors of facts made by the authority. That much is clear. In making a finding or inference of fact, evaluation is given to a fact or a state of affair and any error made is one made in such an evaluation, but that has no bearing on the decision-making process as we know it in administrative law. When a.phantom fact, a non-existent fact is acted upon, the authority is taking into account an irrelevant consideration. Put another way : there is no consideration that he could have regard to. It would not be an erroneous appraisal of a fact. There is no fact for him so to attempt to appraise. If the authority does so, he would be doing something "that must not be done". See Wednesbury case, per Lord Greene M.R.

16. I do not think it can be doubted that family support is a material consideration. It was, in my view, or must have been taken into account by the Deputy Director of Immigration. The question that calls for my decision in this application is whether the Deputy Director of Immigration had taken or purported to take into account a material consideration that never existed. Having regard to a phantom material consideration is no different from having regard to an irrelevant consideration. What I am called upon to decide, in substance, is : was it or was it not an existing fact that the Deputy Director of immigration relied or acted on in.his decision-making process? In my view, absence of a fact here cannot be said to be an erroneous finding of fact. First of all, there was no fact to make any finding on. In fact, there is no related finding on that non-existent fact for challenge in this case. There was no need for any fact finding to be attempted by the Deputy Director of Immigration because the phantom fact was the very fact in itself. A non-existent fact cannot be a.relevant consideration. If an non-existent fact has been taken into account by the authority, it will not be a matter of degree. The applicants maintain that the material consideration was non-existent and the Deputy Director of Immigration was totally misled, and therefore his decision cannot be sustained as he was in breach of Wednesbury Reasonableness as propounded by Lord Greene, M.R. in Associated Provincial Picturehouses Ltd. v. Wednesbury Corporation, supra. In my view, this is, or at this stage is arguably, the law.

17. In order to ascertain whether or not the. material consideration which had been taken into account of by the Deputy Director of Immigration was, or was not an existing fact, cross-examination may be permitted so as to resolve the dispute. The proposed cross-examination is sought precisely for determining this question : whether the Deputy Director of Immigration has acted unreasonably in his decision-making process, within the general description of "things that must not be done" of Lord Greene's.

18. The case cited by Mr Oderberg, counsel for the applicants, In re Islam (Tafazzul) [1983] AC 688 is more concerned with the challenge of a decision based on a fact unsupported by any evidence. Lord Lowry at p.717, Letters G-H did not find it necessary to have the matter there under consideration squarely put on the footing of Wednesbury Reasonableness. In re Islam is a case which stands on the facts of its own.

19. At p.87, paragraph 8-12 of Judicial Review Law and Procedure by R.J.F. Gordon, the following passage appears :-

"These dicta, whilst rightly underlining the essence of the review process, appear to posit a somewhat narrow test for the exercise of the court's discretion to allow cross-examination. It is possible to envisage other situations where, applying Lord Diplock's general criteria, the justice of a particular case requires cross-examination. This may be especially apposite where there is a conflict of evidence on the affidavits before the court. Such a conflict may need to be resolved, for example, in order to investigate the facts affecting a decision and whether there has been an abuse of discretion."

The same passage appears at the same author's Crown Office Proceedings, paragraph C5-063 at page 3517. A parallel may be drawn from this passage.

20. The Deputy Director of Immigration resists the application and has presumably been not too co-operative on this particular aspect as a matter of principle. The matter could not be resolved for the purposes of the hearing proper for judicial review. There could be circumstances for the Court not to exercise its discretion, like in the case of R. v. Secretary of State for the Home Department ex parte Fawehinmi, The Times Law Reports March 13th, 1990. There, cross-examination was thought to be futile as it would have no prospect of success. That is not the position in this case.

21. In all the circumstances, I can find no cause for this Court to withhold exercising  its discretion in favour of the applicants. The application of the applicants is therefore allowed. Counsel for the applicants, I am told, is indisposed. Although I am indebted to Mr Oderberg for his submissions and analysis as I have been to Mr Graham, matters should best be stood over until the speedy recovery of Mr McCoy. In the circumstances, I order cross-examination of the Deputy Director of Immigration on his lst affidavit on the aspect in question in relation to family support and costs of the application be, subject to what counsel have to say, costs of the applicants against the respondent, such costs to be taxed in accordance with the Legal Aid Regulations.

22. The matter be adjourned for an earliest possible date to be fixed in consultation with Mr Graham and Mr McCoy for the hearing proper of the application for judicial review, at which' the ordered cross-examination of the Deputy Director of Immigration is to be conducted. Estimated time - two days. This case to be refixed by the clerk in charge of the lists.