MENG CHING HAI v. ATTORNEY GENERAL

Administrative law - judicial review - deportation order under s.20 (1) (a) Immigration Ordinance (Cap. 115) - directions by Director of Immigration that Taiwanese immigrant be removed to Taiwan as "specified country" under s.25 (2) (a) read with definition of chat expression in s.2 - immigration waned in Taiwan for trial on criminal charge - whether extradition in draguise - test of validity where duality of purpose - whether Wednesbuly unreasonableness established.

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court):

1. These are appeals from the decision of Mortimer, J. dated 30th August 1990 whereby he dismissed an application for judicial review by Mr. Meng Ching Hai ("the applicant"). Mortimer, J., on the same occasion, also rejected Mr. Meng's related application for a writ of habeas corpus.

2. After hearing Mr. Eddis (he had also represented the applicant before Mortimer, J.) we did not call upon Mr. Whaley for the Crown and dismissed both appeals. We now give our reasons.

3. Mr. Eddis conceded that the appeal in relation to the writ of habeas corpus (Civil Appeal No. 150 of 1990) could not succeed if the other appeal tailed. It is really only necessary to refer to the habeas corpus proceedings as part of the narrative.

4. The applicant is a single man, 36 years of age. He arrived in Hong Kong from Taiwan on 16th July 1989, having travelled on a Singapore passport. He was allowed to stay in Hong Kong until 16th October 1989 as a visitor. When he tried to use the same passport to leave Hong Kong for Singapore by air on 24th July 1989, he was arrested at the airport. It was found that the passport was forged and had not been issued to the applicant. When interviewed on arrest by an immigration officer, he said that he had been born in Taiwan and had been resident there since his birth. However, we note that the warrant dated 30th November 1989, issued by the Taiwanese authorities to which we later refer, indicates that he was born in Chekiang Province, China. His parents live in Taiwan.

5. On 5th September 1989 the applicant pleaded guilty in the Magistrates Court to the offence of using a forged travel document contrary to section 42(2)(b) of the Immigration Ordinance, Cap. 115, and also to making a false representation to an immigration officer, contrary to section 42(1)(a) of the Ordinance. On that day he was sentenced to concurrent terms of 9 months' imprisonment on each of the two charges. Since these were summary convictions, the maximum sentence for each offence was a fine of $20,000 and 2 years' imprisonment. Had the applicant been convicted on indictment he would have been liable to a fine of $50,000 and to 14 years' imprisonment (section 42 (4) of the Ordinance).

6. We now refer to the provisions of the Immigration Ordinance, Cap. 115, ("the Ordinance") which are relevant. The power to make a deportation order in respect of the applicant is contained in section 20:

7. The fact that the Governor in Council made a deportation order in the following terms on 28th November 1989 was signified by this notification:

8. Section 32(3) of the Ordinance provides:

"(3)  A  person in respect of whom a removal order or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25."

 

We note that the applicant is presently held under an authorisation for detention issued under that section by a Principal Assistant Secretary (Security) on 1st December 1989, although we are told that the applicant remained in prison custody until, with full remission, he was discharged on 22nd January 1990.

9. Section 25 of the Ordinance makes provision for the removal of persons pursuant to a deportation order. The material parts are:

10. The interpretation section of the Ordinance, section 2, includes the following definition:

11. An affirmation made by Mr. Cho Chi Kong, a Senior Investigation Officer of the Immigration Department, dated 30th January 1990, was before the judge. Mr. Cho explained that in accordance with practice the applicant was interviewed before the Department made a recommendation to the Governor in Council. He said the Department would have included any representations the applicant might have made in their recommendation but he had made none. Moreover, he said that the Department had received an assurance from the Chung Hwa Travel Service, Hong Kong ("the unofficial representative of the Government of Taiwan") that the applicant would be re-admitted to Taiwan.

12. Mr. Cho exhibited the relevant correspondence between his department and the Chung Hwa Travel Service, Hong Kong. An important letter is one dated 25th July 1989 from the Director of Immigration to the Travel Service:

13. The Director of the Travel Service responded to the Immigration Department by a letter dated 2nd August saying, inter alia, that the applicant "is a major suspect of a very serious commercial crime in Taiwan. As there is an urgent need for his return to Taiwan to assist our investigation we should be most grateful if arrangements could be made for his immediate repatriation." This fact was mentioned again when, by letter dated 11th September, the Travel Service asked to be kept informed of the outcome of the Court case against the applicant.

14. In a later letter (of 18th January 1990), the Director of the Travel Service mentioned that he understood that the applicant would be deported on 22nd January and added: "May I again bring to your kind attention that Mr. Meng is a wanted person in Taiwan for having committed a serious commercial crime." He enclosed a copy of a warrant of arrest dated 30th December 1989 relating to the applicant. This is a translation of the "Description of Charges" on the warrant:

"The accused was the owner of Hua Ting International Commodities Company Ltd. and Taiwan Kan Mao Trading Company Ltd. From June of 1988 to July of 1989, the accused accepted investment valued NT$800 millions more from his employees and the other persons. [He] paid only parts of investment interests to the investor and then he slipped away to Hong Kong with the monies."

 

15. Among the correspondence exhibited by Mr. Cho to his affirmation is a letter dated 23rd January 1990 from the applicant's solicitors to the Director of Immigration telling him that the applicant wished to go to Mainland China on his release from custody and enclosing a copy of a permit to enter the PRC as a visitor. He wished, the letter said, to be escorted to Lo Wu and after customs and immigration clearance "to be released unconditionally to go to a destination of [his] choice, by walking across the border .."

16. Mr. Cho stated that he had referred this letter to his superiors and that legal advice had been sought. On 25th January 1990 the Director of Immigration had decided that his original decision to direct that the applicant be removed to Taiwan should not be changed. The following were the matters taken into account by the Director in making his decision:

17. When leave to apply for judicial review was sought, the notice required by RSC 0.53, r.3 indicated that the decision sought to be challenged was that of "the Director of Immigration dated on or about 5th October 1989 and confirmed on 25th January 1990 to deport the applicant to Taiwan." An order of certiorari was sought to remove into the High Court and to quash that decision, as well as an order of mandamus directed to the Director to permit the applicant to leave Hong Kong for the Peoples Republic of China or the Philippines. The following were the grounds upon which that relief was sought:

18. The judge also had before him the applicant's affirmation dated 27th April 1990 (as well as the affirmation in virtually identical terms he had made on 19th January 1990 for the purpose of the habeas corpus proceedings). In it he said that he had reason to fear that he might be deported in a manner, and to Taiwan, which would lead to a politically motivated prosecution against him. He had been shown a Taiwanese newspaper cutting dated 16th January 1990; he exhibited a translation of the article, which, he said, plainly showed that the Taiwanese Police had made arrangements with the Hong Kong Police to put him into their care immediately on his release from prison. He did not know if this was true or not.

19. He wished to draw the Court's attention to the fact that the Taiwanese law under which criminal action was said to be taken against him was called the Law of General Mobilization but this was no more than "in effect a Public Security kind of law." The reason why this kind of law would be invoked against him was undoubtedly because the authorities either knew or suspected that he had been negotiating with the People's Republic of China and this in their eyes was equivalent to trading with the enemy. Hence the invocation of a politically motivated so called crime against him.

20. He claimed that what he had in fact been doing in Hong Kong when he was arrested in July 1989 was as follows. Certain Taiwanese investors had supplied his firm with funds for investment, specifically on the basis that the funds would be invested outside Taiwan. In return he had paid them in Taiwanese dollars a rate of interest much higher than they could otherwise have obtained.

21. He affirmed that in May 1989 he had arranged an appointment with the Mayor of Beijing when they were to discuss the provision of funds for investment in the forthcoming 1990 Asian Olympic Games. Owing to the events in June 1989 the Mayor of Beijing had postponed the meeting, so he had come to Hong Kong and had discussions on the same subject with unnamed senior officials in the New China News Agency.

22. The applicant went on to say that all this explained why he had found it "inconvenient" to carry out negotiations on a Taiwanese passport, and why, if the negotiations, or part of them, were discovered by the Taiwanese authorities he was likely to be accused and found guilty of offences against the State, rather than a breach of merely financial regulations.

23. He then said that a few years ago a Taiwanese citizen, found guilty of making a relatively small sum of NT$ available in the PRC without permission, had been sentenced to 15 years in prison. Thus he had very good reason to suspect that any forced return to Taiwan would involve trim in convictions for offences against the State. He added that if the Governor in Council were to be alerted to the facts of his possible status as a political refugee, and that were accepted, the deportation order would necessarily be quashed. He asked to be allowed to go to the destination of his choice.

24. The material before the judge included several other letters exhibited to various affirmations filed on behalf of the applicant and on behalf of the Crown. We were taken through these letters. On l6th January 1990 the solicitors acting for the applicant ("the solicitors") wrote to the Director of Immigration informing him that the applicant had applied to the Consulate of the Kingdom of Tonga for a Tonga passport so that he could travel there on his release from prison. They asked that the applicant should be allowed to stay in the Immigration Centre pending the outcome of his application after his discharge from prison.

25. On 18th January 1990 the Director replied that he had no record to show that the applicant had permission to enter Tonga and that Lie had made no mention of any connection with Tonga when interviewed. Reference was made to the deportation order of 28th November 1989. The letter concluded:

"Unless and until documentary evidence of entry permission to Tonga, acceptable to the Department and to an airline carrier, with justification for not returning to Taiwan, is received before 22 January 1990, so that the case can be referred back to the Executive Council for consideration, Mr. Meng will be deported to Taiwan without delay."

 

26. We observe here that although no mention of the principle of "legitimate expectation" was made before Mortimer, J. (nor is it referred to in the Notice of Appeal) at one stage of the argument, if we understood him correctly, Mr. Eddis sought to rely on that principle although it was not clear to us precisely what the legitimate expectation embraced. We wish merely to indicate that we do not read that letter as giving the applicant a legitimate expectation implicitly that if he found somewhere else to take him, he would not be returned to Taiwan but sent there. There is no hint of this expectation in any of the affirmations or correspondence we have seen. Nor were submissions founded on this principle made to the judge.

27. It was the letter of 18th January 1990 which prompted the applicant to institute the habeas corpus proceedings. There was an abortive hearing before Wong, J. on 30th January in circumstances fully explained by Sir Derek Cons in the judgment he gave on behalf of this Court, (differently constituted) on 2nd May.

28. On 23rd January 1990 the solicitors wrote the letter to the Director of Immigration about the applicant's wish to go to Mainland China on his release to which we have earlier referred.

29. By a letter dated 19th April 1990 the Director of Immigration addressed the Consul General of the Philippines in Hong Kong about a Special Return Certificate (a copy of which he had been shown by the applicant's solicitors) which had been apparently issued to the applicant and would allow him to be admitted to the Philippines. He asked if the Certificate was in order. In their reply dated 24th April, the Consul General's office said, inter alia:

"Since subject was not in the Philippines at the time the Philippine Special Return Certificate No. 024326 was issued and its copy which you furnished this office, contains no thumbprints of the supposed holder and no details of his departure from the Philippines, we have reason to believe that the questioned certificate is a falsified document."

 

30. The solicitors sent a letter dated 26th April 1990 to the Director of Immigration enclosing a copy of the Special Return Certificate dated 7th April 1990 and a supporting letter from the Philippines Commission on Immigration and Deportation. They informed the Director that the applicant was "quite willing" to go to the Philippines and also enclosed a copy of the applicant's air ticket to take him there. The letter ends: "We shall be much obliged if you would kindly consider this matter and [if] you allow our client to leave Hong Kong for Philippines, kindly inform us so that we can supply [the] Certificate and air ticket to you for such purpose."

31. The Director wrote to the Consul General of Philippines on 27th April 1990 telling him of the contents of the solicitor's letter of the day before and asking for confirmation that the applicant would e able to go to the Philippines on that Certificate, given that he was the subject of a deportation order. On the same day, the Consul General himself replied:

32. This was the position, and the state of knowledge of the Director of Immigration, when the applicant gave notice of his application for leave to apply for judicial review.

33. However, the correspondence on this point which the judge (and later this Court) was shown continued. The applicant's solicitors wrote on 3rd May 1990 to the Commission on Immigration and Deportation in Manila about the Special Return Certificate. They enclosed copies of the Consul General's letters of 24th and 27th April referred to above and asked whether the Certificate was valid and "whether your immigration department is going to allow [the applicant] to enter into Philippines and resume his status on the strength of the .... Certificate." On 7th May the Commission replied that the Certificate was a re-issue of the applicant's lost original Certificate, the loss of which had been properly verified. A thorough check had shown that the applicant's foreign investor status had been properly granted and validly maintained. The letter ends: "In view of the foregoing premise, we hereby confirm the authenticity and validity of the said .... Certificate; and by virtue of which, therefore, the entry of [the applicant] is allowed."

34. It was Mr. Leung Kowk Hung, a Senior Immigration Officer in the Prosecution and Deportation Section of the Investigation Division of the Immigration Department who exhibited to his affirmation of 3rd May 1990, the correspondence with the Consul General about the Special Return Certificate.

35. An affirmation dated 7th May 1990 made by Mr. So Ho Ming, the solicitor acting for the applicant, was also before the judge. He exhibited, inter alia, an entry permit into the PRC, dated 21st April 1990 and valid until 10th July 1990. As to this permit, Mr. Leung said that it was a visitor's visa only and made ho mention of the deportation of tile applicant.

36. Mr. So also exhibited a photocopy of a Taiwan passport issued to the applicant oh 10th June 1987, valid until 21st May 1991. In it was a non-immigrant visa issued by the U.S.A. valid for multiple entries until 13th October 1992. Mr. Leung said that the passport had never been shown to the Director of Immigration or his officers. He observed that the visa appeared to be valid for tourism and business purposes but it was not evidence that the applicant, as a deportee, would be granted entry into the U.S.A.

37. Mr. Leung went on to say that in directing the removal of a person in respect of whom a deportation order is in force to a specified country the Director of Immigration had to consider whether that specified country would accept the deportee. He said that by international convention, the country of nationality, domicile or last residence of a deportee was expected to accept the return of the deportee. Any other country could immediately return toe deportee to the place where he boarded the aircraft or vessel transporting him to that country. He concluded his affirmation by saying that since the making of Mr. Cho's affirmation on 30th January 1990, there had arisen no matters to cause the Director to change his original decision to execute the deportation order by directing that the applicant be removed to Taiwan.

38. In his reserved judgment, after setting out the factual and statutory background, the learned judge disposed of the arguments which had been addressed to him on the principle of proportionality, expressing the view that submissions based on that principle were covered by the concepts of irrationality or unreasonableness. We need say little about this, for we discern nothing in the grounds of appeal nor in the submissions made to us which challenges the judge's approach to the principle, which was to adopt the views of Lord Donaldson, M. R. in R. v. Secretary of State for the Home Department, ex parte Brind, [1990] 1 All ER 469, at pp. 479-481, and of Sir William Wade in his work Administrative Law (6th Edition) p.429: ".... and it [the principle of proportionality] would seem to be already available as inherent in the principle of reasonableness."

39. As to the submission that this was not a bona fide deportation, the judge noted that the undoubted fact that the applicant was wanted in Taiwan had pervaded the proceedings because for obvious reasons he did not want to go there. In answering the question whether this fact in any way altered or inhibited the way in which the Director must take decisions under the Ordinance, the judge adopted the observations of Lord Denning in R. v. The Governor of Brixton Prison, ex parte Soblen [1963] 2 Q.B. 243, at p.302, part of which tie quoted, as an accurate expression of the law. We will return later to what Lord Denning had to say.

40. The learned judge said that, as Soblen's case showed, everything depended upon the purposes for which the decision had been taken. It was to be noted that the Director had in mind deportation or return to Taiwan at the outset in the first letter to the Travel service when there was no reason to think that he had any idea that the applicant was wanted for offences in Taiwan. There was no basis for the allegation that this was an unlawful extradition or that the Director had taken the decisions for the purpose of effecting an unlawful extradition rather than fulfilling the duty imposed upon him to deport a person the subject of a deportation order. He felt it would be unreasonable and contrary to the Ordinance if the Director's powers to deport were limited simply because a person he sought to deport was wanted in the country specified in the deportation order.

41. Moreover, in his view, Taiwan was a clear and obvious country for the Director to specify in the deportation order for these reasons:

42. The judge said that he had little hesitation in rejecting the submissions that the decision taken by the Director to deport the applicant to Taiwan was not a bona fide decision taken in exercising his powers under the Ordinance.

43. The judge then addressed the question whether the applicant had the right to choose to which country he was to be deported or, to put it more properly, was the decision to deport him to a country other than one he chose and to which he might be able to go, unreasonable and excessive and unfair so that the decision should be quashed?

44. The judge remarked that the other places to which the applicant had sought to go had been considered by the Director and having considered them he had maintained his original decision to deport him to Taiwan. In considering those suggestions he had, in tile judge's view, followed a fair procedure. He had then exercised powers, which he undoubtedly had, to specify the country for deportation. The judge felt he could easily reject the submission that the Director's decision ought to be quashed on that basis. The applicant did not have the right to choose under the legislation.

45. The judge then noted that there was some doubt whether the other countries concerned would accept the applicant as a deportee and this was a matter properly in the Director's mind when considering the matter. However, even if one or other country would accept the applicant, this fact did not invalidate his decision as being unreasonable or unfair or open to objection on any of the other grounds that had been advanced. The decision was a plain and obvious one and not open to attack on that ground. This view also disposed of the argument that that decision and the decisions leading to it were unreasonable on wednesbury principles.

46. As regards the submissions made about the role permitted to be played by the Chung Hwa Travel Service, on behalf of the Taiwanese government, it seemed to him that all concerned recognised the de facto practicality of the arrangement whereby information was passed between the Director and the government of Taiwan and contact maintained through the Travel Service. Without any further evidence on the matter he could see no vice in this practical arrangement and he would reject the argument that the Director's decisions ought to be classified as being unreasonable, unfair or unlawful because he was relying upon information which came from that source. On this point, we think that the judge's approach was sensible and realistic. In our judgment it is a mis-reading of the evidence to say that the Director of Immigration was responding to a demand made by Travel Service.

47. We mention here the important fact that in his judgment the judge noted that Mr. Eddis had not pursued "any argument .... based upon an application for political asylum or anything of that nature." This stand was expressly maintained by Mr. Eddis before us.

48. The judge summarised his conclusions thus:

"The result is that I am satisfied that the Director took his decisions bona fide, reasonably, fairly and lawfully. He exercised his undoubted powers lawfully and reasonably. The decision to detain the applicant was a necessary and proper one and that the decision to specify Taiwan rather than elsewhere as the country to which he is to be returned is a plain and obvious decision."

 

49. The submission that the Director of Immigration's decision to send the applicant to Taiwan was an "extradition in disguise" was renewed before this Court. On the face of the material before us, and the statutory regime we have earlier reviewed, the Governor in Council made a lawful deportation order in respect of the applicant under section 20(1)(a) and (5) of the Ordinance. The applicant has since been lawfully detained in prison custody and later under section 32(3). The Director of Immigration has indicated that he will give lawful directions for the removal of the applicant from Hong Kong to Taiwan under section 25 (2) (a) of the Ordinance, read with the definition of "specified country" in section 2. It is also a fact that the applicant is wanted in Taiwan for an alleged offence, a territory with which Hong Kong has no extradition arrangements, and the inevitable result of the removal directions, if carried out, will be that the applicant would be surrendered to Taiwan, a place to which he has, as Mr. Eddis put it, an "extreme aversion" to being returned.

50. We agree with the learned judge that R. v. Governor of Brixton Prison, ex parte Soblen [1963] 2 QB 143, (the case from which he cited a passage from p.302 of Lord Denning M. R. 's judgment) is instructive; its authority has never been doubted. There the facts briefly were that Soblen was a naturalised American citizen who was convicted in the U.S.A. of conspiracy to obtain and deliver defence information to the U.S.S.R. and sentenced to life imprisonment. He applied to the Supreme Court of the U.S.A. for a new trial and was released on bail. When he heard that his application had been refused he flew to Israel using his brother's passport. He was forcibly expelled from there in an aircraft which flew him to Athens. There he was transferred on to a regular flight of the Israeli state airline bound for New York, via London. So that he could gain entry into the United Kingdom, Soblen inflicted severe knife wounds on himself while on the aeroplane. He was refused permission to land but not ultimately prevented from doing so on humanitarian grounds. When he landed at London Airport he had to be taken to hospital for medical treatment.

51. Before Soblen mad reached London Airport, the British Home Secretary had considered that his presence in the United Kingdom was undesirable and not in the public interest and, on instructions from the Home Office, the immigration officer at London Airport had drawn up a notice of refusal to land under powers in the Aliens Order, 1953. The notice could not be served on Soblen when he arrived in London because of his physical condition but it was served on him a few days later in hospital. Soblen challenged the validity of the notice in habeas corpus proceedings. The Divisional Court upheld its validity and that decision was affirmed by the Court of Appeal, [reported in [1963] 1 QB 829].

52. After that, on four different occasions, directions were given to the Israeli state airline under other provisions of the Aliens Order to remove Soblen in one of its aircraft to the U.S.A. but the airline failed to comply with the directions and ultimately they had to be revoked. At about this time, a leading British newspaper reported that the Government of the U.S.A. had requested the British Government to return Soblen to the U.S.A.

53. Just before the revocation of the last direction served on the Israeli airline, a deportation order made by the home Secretary under another article of the Aliens Order was served on Soblen requiring him to leave the U.K. and thereafter to remain out of the United Kingdom. In a press statement the Home Office stated that it was the Home Secretary's intention to deport Soblen by an aircraft expected to go to the U.S.A. Soblen was ordered to be detained in Brixton Prison pending deportation in accordance with certain provisions of the Order.

54. For the purposes of this appeal it is not necessary to review the entire decision of the English Court of Appeal. We think it only necessary to quote the following passage from pp. 301-302 of the judgment of Lord Denning M.R. where he said:

55. We also think it would be helpful to cite a passage from the judgment of Donovan, L.J. where he said at pp. 306-307:

56. In Wade's: Administrative Law (6th Edition) pp. 439-440 is to be found a short statement of the proper approach of a Court in circumstances such as those obtaining in Soblen's case, under the heading "Duality of purpose":

"Sometimes an act may serve two or more purposes, some authorised and some not, and it may be a question whether the public authority may kill two birds with one stone. The general rule is that its action wild be lawful provided that the permitted purpose is the true and dominant purpose behind the act, even though some secondary or incidental advantage may be gained for some purpose which is outside the authority's powers. There is a clear distinction between this situation and its opposite, where the permitted purpose is a mere pretext and a dominant purpose is ultra vires."

 

Sir William Wade discusses Soblen's case at p.441.

57. Despite a concession (to which we will presently refer) which seems somewhat at odds with the continued reliance on the "disguised extradition" ground, Mr. Eddis maintained that the Director's decision to send the applicant to Taiwan was "obviously" made with the ulterior objective of handing him over to the Taiwanese authorities to stand trial. We respectfully agree with the judge that there was, in the material before him, no basis whatever for the contention that the permitted purpose of the directions intended to be made under the Ordinance was a mere pretext for an unlawful extradition. We agree with him, too, that tile first letter the Director of Immigration wrote to the Chung Hwa Travel Service (dated 25th July 1989 and set out above) demonstrates that he had in mind removal to Taiwan before (so tar as is apparent from the papers before us) he knew that the applicant was wanted to face charges in Taiwan. No submission has been made to the contrary.

58. We now return to the concession made by Mr. Eddis. It was this - that the applicant could have had no cause for complaint about the decisions made by the director of Immigration up to 23rd January 1990, when the attempt to get a Tonga passport had failed. Of course, by then, the habeas corpus application had been filed but, as we understand him, Mr. Eddis accepted that but for the necessity for a stay on account of the pending proceedings, deportation to Taiwan would have been lawful because the Special Return Certificate for the Philippines and the entry permit for the PRC had not yet been issued. With very great respect to Mr. Eddis, we do not see how what would then have been a lawful deportation later somehow became unlawful as a "disguised extradition". The fact that the applicant was "wanted" in Taiwan was, of course, known as long ago as 2nd August 1989.

59. As we have seen, the order for certiorari sought in the judicial review proceedings was to quash "the decision by the Director dated on or about 5th October 1989 and confirmed on 25th January 1990 to deport the applicant to Taiwan." And the order for mandamus asked for was to order the Director to permit the applicant to leave for the PRC or to the Philippines. It became apparent that during the hearing that the judge was asked to consider evidence relating to documents relied upon by the applicant that were issued to him on dates after the dates upon which the challenged decisions were made, particularly the Special Return Certificate for the Philippines dated 7th April 1990 upon which so much significance was placed in the arguments advanced by Mr. Eddis. The existence of such documents, and the correspondence referring to them, could not, of course have influenced the Director's decisions "dated 5th October 1989 and confirmed on 25th January 1990."

60. When Mr. Eddis was asked about this (and reminded that the question whether the Director's decisions were unreasonable fell to be decided at the dates when he reached them) he invited this Court to allow him to amend paragraph (1) of the relief sought by the judicial review to insert, after the dates designating the Director's decisions, the words "and re-confirmed on or about 3rd May 1990." We were later told by Mr. Whaley that the Crown had agreed that Mortimer, J. should be informed by fresh evidence of the developments which had taken place since the Director had reached his original decision, and that the judge should take these developments into account in deciding the judicial review proceedings.

61. We have no doubt that the Crown was anxious to be as helpful as possible, but what happened here was a departure from the proper practice which we would not encourage. We draw attention to the RSC 0.53, r..6 (1), (2) and (3). Any evidence of events after the date of the decisions impugned by the Notice, that did not satisfy the principles laid down in R. v. Secretary of State for the Environment, ex parte Powis [1981] 1 WLR 584 (summarised in paragraph 53/1 – 14/47 of the 1991 Supreme Court Practice) would not have been admissible unless the formulation of the relief sought had been appropriately amended, by leave, to substitute (or add) a reference to a later challenged decision which made such fresh evidence relevant and therefore admissible.

62. Had the relevant RSC been obeyed as they ought to have been, the judge's task would have been made easier and some contusion when the appeal papers were read, and during the hearing of the appeal, would nave been avoided.

63. Once the applicant did not succeed in establishing, on the balance of probabilities, that the true or dominant purpose of the Director of Immigration in having him removed to Taiwan was to bring about an unlawful extradition rather than properly to set in motion a genuine deportation in accordance with the duty and authority given to him by the Ordinance, it seemed to us that the appeals could not succeed. The four paragraphs (a) to (d) of the definition of "specified country" in section 2 of the Ordinance are disjunctive but as the facts show in the instant case, in relation to the applicant, all four paragraphs apply and in our view the judge was clearly right when he observed that Taiwan was the "plain and obvious choice".

64. In his helpful skeleton arguments, Mr. Eddis formulated the issues on this appeal in this way. The emphasis is his own:

65. There can, of course, be only one answer to issue A. when the relevant provisions of the Ordinance are read together. As to issue B., Mr. Eddis argued that on the facts, the Director's decision was (to use his epithets) "indefensible", "manifestly oppressive", "arbitrary" and "unfair". We did not agree. No bad faith had been shown. The Director proposed to exercise the discretionary power given to him in accordance with the provisions of the Ordinance and for a proper purpose. He has not been shown to have taken irrelevant considerations into account, or to have ignored relevant ones. He has not been shown to have acted capriciously. Far from having reached a manifestly unreasonable decision, in our judgment, the Director's decision was plainly reasonable. A direction made under the ordinance which would otherwise be reasonable in Wednesbury terms, and therefore lawful, cannot be rendered unlawful simply because the deportee does not wish to go to the "specified country" selected since he is wanted there, and has found another country which will admit him.

66. We feel bound to observe that at times during the hearing of the submissions advanced on behalf of the applicant, we formed the impression that the essential principle, that judicial review is concerned with reviewing the decision-making process and not the merits of the decision in question as if it were on appeal from that decision, had been lost sight of.

67. It was for these reasons that we dismissed the appeals. In handing down these reasons, we make an order nisi that the applicant shall pay the costs of both appeals.

68. Before we take leave of these appeals, we would draw attention to the fact, in case it has been overlooked, that it would seem that the applicant had a right to object to the Director's decision in accordance with the provisions of section 53 of the Ordinance.