YAN CHEN CHANG MEI AND OTHERS v. DIRECTOR OF IMMIGRATION

Headnote

Administrative Law - Judicial Review - Whether the exercise of the Director of Immigration's discretion under the Immigration Ordinance Cap. 115 not to extend the "visas" of temporary visitors when their Lesotho passports were cancelled by the Lesotho government during their stay in Hong Kong was "unlawful" - Observations on the statutory scheme under the Immigration Ordinance - Nothing in the Ordinance requires the Director to deal with "stateless" persons in any particular way - Observations on the grant of leave under Ord 53 r3.

Held : Challenge to exercise of discretion by Director of Immigration failed. Appeals dismissed.

IN THE COURT OF APPEAL

1992, No. 163
(Civil)

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J U D G M E N T

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Litton, J.A.:

1. These are consolidated appeals in three judicial review cases, leave having been given in each case by a judge to apply for judicial review of decisions made by the Director of Immigration. In Civil Appeal No. 163/92 and No. 164/92, the applicants, represented by the same firm of solicitors, were given leave by Liu J. on 20 March 1992 (in HCMP No. 816/92 and HCMP No. 817/92). In Civil Appeal No. 173/92, leave was given by Ryan J. on 9 February 1992 (in HCMP No. 385/92). The applications were heard together by Mayo J on 10th and 11th September 1992 and, by his judgment delivered on 11th September, they were dismissed. Hence these appeals.

Background Facts

2. In Civil Appeal No. 163/92 there are four applicants, a man, his wife and two children. In Civil Appeal No. 164/92 there are three applicants, a woman and her two children. In Civil Appeal No. 173/92 there are two applicants, a woman and her son.

3. All the applicants were born in China and until recently lived in China.

4. The applicants in Civil Appeal No. 163/92 and No. 164/92 all arrived in Hong Kong on 9 November 1991 from Thailand. At their immigration examination on arrival (conducted under the provisions of section 4(1)(a) of the Immigration Ordinance, Cap. 115) they presented passports issued by the Government of Lesotho. Permission was given to each of them to land in Hong Kong as a visitor, the limit of stay to expire on 9 February 1992. In Civil Appeal No. 173/92, the two applicants arrived in Hong Kong from Singapore on 7 October 1991. At their immigration examination on arrival they too presented Lesotho passports and were given permission to remain in Hong Kong until 7 January 1992 as visitors; a temporary extension of stay as visitors was subsequently granted, to expire on 7 February 1992.

5. In respect of each of the applicants, the permission to land as a visitor and to remain for the duration indicated was stamped on the Lesotho passport.

6. The expression "visitor" is a term of art in the Immigration Regulations. Regulation 2(1) states that where permission is given to a person to land in Hong Kong as a visitor it shall be subject to the following conditions of stay:

"(a) He shall not take any employment, whether paid or unpaid;

(b) he shall not establish or join in any business; and

(c) he shall not become a student at any school, university or other educational

institution."

7. Shortly after the applicants arrived in Hong Kong, solicitors acting on their behalf applied to the Director of Immigration for a change of their "status": meaning, in essence, that the Director should vary the conditions of stay so that, in the case of the adult applicants in Civil Appeal No. 163 and No. 164/92, the conditions of stay applicable to "visitors" should be lifted and their "visas" be "extended for business purposes": meaning, in effect, that the conditions of stay prescribed by Regulation 2(4) of the Immigration Regulations be applicable, instead of those in Regulation 2(1). I should add here in parenthesis that, throughout the correspondence, the solicitors never referred expressly to the Regulations, and having regard to the way the case was ultimately argued before Mayo J, it is questionable whether solicitors and counsel acting for the applicants gave, at any time, more than a passing thought to the statutory scheme under the Immigration Ordinance. There is no reference in Mayo J's judgment to the Immigration Ordinance, or the Regulations made thereunder.

Regulation 2(4) states:

"(4) Permission given to a person to land in Hong Kong for employment shall be subject to the condition of stay that he shall only take such employment or establish or join in such business as may be approved by the Director."

8. The permission given under Regulation 2(4) is referred to colloquially as a "business visa". The practice of the Immigration Department is that, on the grant of a "business visa", the limit of stay would be extended to one year in the first place. A new stamp would be put on the applicant's passport to reflect this exercise of statutory discretion.

9. As far as the infant applicants in Civil Appeal No. 163 and No. 164/92 are concerned, the application on their behalf was (in effect) that the limit of stay should be varied, so that they be permitted to remain in Hong Kong so long as the "business visas" of their parents be current, and the former restrictions on them as "visitors" be lifted. If these applications had succeeded a new stamp would likewise have been put on their passports. As to this, it is worth noting (although no arguments were put forward in the court below on the point) that the Director of Immigration has power to vary the conditions of stay by section 11(5A) of the Ordinance which (where relevant) states:

"(5A) An Immigration Officer or a Chief Immigration Assistant may at any time by notice in writing to any person other than a person who enjoys the right of abode in Hong Kong, or has the right to land in Kong by virtue of section 8(1) -

(a) cancel any condition of stay in force in respect of such person;

(b) vary any condition of stay (other than a limit of stay) in force in respect of such person .....;

(c) vary any limit of stay in force in respect of such person by enlarging the period during which such person may remain in Hong Kong."

10. As regards the two applicants in Civil Appeal No. 173/92, applications were likewise made on their behalf by solicitors on 29 November 1991 for "a change of status", that is by relaxing the conditions of stay and prolonging the limits of stay, as section 11(5A) empowers the Director to do, to enable them to remain in Hong Kong, so long as the first applicant's husband was permitted to remain in Hong Kong for employment: the husband, though not a party to these proceedings, had sought permission under Regulation 2(4) to remain in Hong Kong.

Refusal of Applications by Director

11. On 31 January 1992 the Director of Immigration refused the applications of the applicants in Civil Appeal No. 163 and No. 164/92. The letters were in standard form. After referring to the application in question, the letter in each case stated:

"As the Lesotho Government has declared your Lesotho passport...... to be invalid, I am unable to accede to your application and hereby inform you that your application has been refused.

Please note that you are permitted to remain in Hong Kong up to 9 February 1992 and that you must leave Hong Kong on or before this date."

12. In the case of the applicants in Civil Appeal No. 173/92, the Director's refusal is dated 3 February 1992, and given for reasons identical to those in Civil Appeal No. 163 and No. 164/92. The letter of 3 February 1992 ended by saying :

"Please note that you are permitted to remain in Hong Kong up to 7 February 1992 and that you must leave Hong Kong on or before this date."

13. What, factually, had happened, between the time when the solicitors for the applicants lodged their applications for "change of status", and the beginning of February 1992, was this: The passports issued by the Lesotho government were cancelled and declared invalid by that government. This fact was communicated to the Director of Immigration by the British High Commission in Lesotho on about 10 January 1992. There was no mention then that the applicants had lost their Lesotho citizenship.

14. The policy of the Hong Kong government is to deny "visas" to applicants who do not have valid travel documents: this explains the way in which the refusal contained in the letters of 31 January 1992 and 3 February 1992 was couched.

Applications for Leave: CA 173/92

15. In point of time, the application for leave to apply for judicial review came first in Civil Appeal No. 173/92. It was made on 9 February 1992 to Mr. Justice Ryan at his residence. The notice lodged under Order 53 r3(2)(a) says that relief was sought in relation to two decisions of the Director made on 3 February 1992:

"(1) A decision made by the Director of Immigration on 3 February 1992 refusing an application made on 29 November 1991 by the Applicant for a change of status, to be granted dependent visas.

(2) A decision made by the Director of Immigration on 3 February 1992 requiring the Applicant to leave Hong Kong on or before 7 February 1992."

16. Relief (where relevant) was sought in these terms:

(1) Certiorari, to bring up into the High Court for the purpose of being quashed, the said decisions.

(2) Mandamus to compel the Director of Immigration to permit the Applicants to remain in Hong Kong pending a final determination by the Courts of Lesotho as to whether passport No. B10305 issued to the 1st Applicant or the Certificate of Naturalization in the name of the 1st Applicant is valid, according to the Law of Lesotho."

17. I have every sympathy with a High Court judge faced with an "urgent" application at his residence and given no time to properly digest the material put before him. There were, in fact, two profoundly unsatisfactory features concerning this application:

(1) The notice lodged under Order 53 r3(2)(a) was wrong. There was, in fact, only one decision made by the Director, as communicated in his letter of 3 February 1992, capable of being judicially reviewed by the court: that is, the Director's refusal to allow a "change of status". The Director, on 3 February 1992, had made no removal order of any kind under the Immigration Ordinance. If the applicants' solicitors and counsel had paused to consider the matter, before they hastened to Ryan J.'s residence on 9 February 1992, they would have seen that that was so. Under the Immigration Ordinance, where a person remains in Hong Kong after a limit of stay imposed under section 11(2)(a) has expired, two legal consequences may ensue:

(a) he is liable to be prosecuted under section 41 of the Immigration Ordinance and, on conviction, is liable to a fine of $5,000 and to imprisonment for two years; and

(b) a removal order may be made against him under section 19(1)(b)(ii). But such removal order can only be made where the person "is contravening or has contravened a condition of stay in respect of him" (emphasis added).

A "condition of stay" in the Ordinance is defined to include a limit of stay. Plainly, on 3 February 1992, when the refusal letter was sent by the Director, the applicants had not then contravened their limit of stay. If solicitors and counsel acting for the applicants had, on 9 February 1992, simply paused in their tracks, they would have seen that the letter of 3 February 1992 could not possibly have operated as a removal order made under section 19(1) of the Immigration Ordinance. The applicants were under no threat then of removal or expulsion from Hong Kong. Obviously, if they contravened the law, and did not leave Hong Kong on or before 9 February 1992, they were liable to have removal orders made against them after that date. The case put to the Judge, that a "decision", capable of being judicially reviewed, had been made by the Director "requiring" the applicants to leave Hong Kong by 7 February 1992, was misconceived.

(2) The Director of Immigration was under no duty of any kind to "permit the applicants to remain in Hong Kong", whether pending the determination by the Courts of Lesotho as to whether their passports were valid, or for any other reasons. Relief by way of mandamus was fundamentally flawed, and should never have been sought in the application for leave. On no conceivable basis could it have been argued that the Director was under a duty, enforceable in a court of law, to permit the applicants to remain in Hong Kong after their limits of stay had expired.

Application for leave: CA 163 and 164/92

18. In relation to CA No. 163 and No. 164/92, errors identical to those in the applications of the applicants in CA No. 173/92 were made. There was, however, an additional error, which was this: Apart from the reliefs sought by way of certiorari and mandamus, the applicant sought from the court declarations to this effect: (a) as an alternative to the relief of mandamus "a Declaration that the applicants are permitted to remain in Hong Kong" and (b) "a Declaration that the applicants may not be expelled or required to leave Hong Kong, save on grounds of national security or public order".

19. These declarations are said to be justified by the fact that, by the time the applications for these applicants were made to the court, they had become "stateless".

20. These applications for leave were taken out much later than those in Civil Appeal No. 173/92: not until 19 March 1992, after the applicants had learnt that not only had their Lesotho passports been cancelled, but their Lesotho citizenship had also been revoked. The revocation of citizenship was published in the Lesotho government gazette on 11 February 1992.

21. After the receipt by the applicants of the Director's letter of 31 January 1992, refusing their applications for "change of status", there was further correspondence between the solicitors for the applicants and the Director. In a long and rambling letter dated 1 February 1992 the solicitors asked for a short extension of the limit of stay, for "about 2 to 3 months", to enable discussions to take place with the Lesotho Minister of the Interior and Foreign Affairs; and in a further letter dated 7 February the solicitors offered on behalf of their clients "Deeds of Undertaking" containing, among other things, an undertaking to leave Hong Kong after receiving confirmation that the Lesotho government was not prepared to issue fresh passports. In the same letter the solicitors claimed that their clients were then "stateless" and no country was prepared to accept them. Some material was put to the Director to the effect that the applicants' "citizenship record with the Chinese government has been cancelled".

22. On 7th March 1992 the Director, after having reviewed the cases of the applicants, confirmed his decision as conveyed on 31 January 1992. The letter of 7 March concluded by say:

"You are reminded that overstaying in Hong Kong is an offence under the Laws of Hong Kong".

23. The "reminder" in the Director's letter of 7 March could not have been clearer: the laws of Hong Kong required the applicants to leave the territory, after their "visas" had expired. The Director himself had performed no executive act to that effect. That, unfortunately, was not how the matter was viewed by solicitors and counsel acting for the applicants. In support of theex parte application for leave, the solicitors lodged grounds in compliance with Order 53 r.3(2)(a)(ii), which stated:

" Grounds on which relief is sought

1. The 2 decisions of the Director of Immigration are, in the special circumstances, Wednesbury unreasonable.

2. The Director of Immigration has failed to take into account that the Applicants have formally renounced their former citizenship of the People's Republic of China. That the Applicants have no other travel document other than the abovementioned Lesotho passports and are stateless, according to law.

3. That the second decision of the Director of Immigration requiring the Applicants to leave Hong Kong would render the Applicants stateless and that by Article 31 of the Convention Relating to the Status of Stateless Persons 1954, and further by customary international law, the Applicants may not be expelled or required to leave Hong Kong save on grounds of national security or public order. In the premises the Director of Immigration has by his decision acted contrary to law.

4. The Director of Immigration has failed to take into account or sufficiently take into account, the fact that the Applicants have acted at all times openly and bona fide.

5. The Director of Immigration has failed to take into account or sufficiently take into account, the fact that his second decision is likely to have irreversible consequences for the Applicants and their family, especially if removed to the People's Republic of China, as it is unlikely that the Applicants would be later permitted to depart from the People's Republic of China."

24. These grounds are odd in a number of ways. First, there is nothing in the statutory scheme, under the Immigration Ordinance, that requires the Director to deal with "stateless persons" in any particular way, whether they are applicants for "business visas", "dependents' visas" or otherwise. Accordingly, where ground (2) asserts that the applicants are "stateless, according to law" it could only have referred to some form of international law: that is, the Convention or "customary international law" referred to in ground (3). But, it is axiomatic that the municipal courts of the territory do not exist for the enforcement of international obligations, incurred by the United Kingdom government on behalf of Hong Kong. Grounds (2) and (3) could not possibly have been grounds for any relief given by a judge on judicial review. Second, the notion that "the second decision" of the Director "rendered the applicants stateless" is so bizarre that it should have been rejected out of hand. The Director of Immigration has no responsibility for anyone's nationality. Third, there was no "second decision" at all.

25. As can be seen, the "grounds" do not seek expressly to impeach the first decision : that is, the refusal of the applications for "employment visas" and "dependents' visas".

26. In dealing with applications for leave under Ord. 53 r.3, it is worth remembering what Lord Diplock said in IRC v. National Federation of Self-Employed and Small Businesses [1982] AC 617 at 643-A: the requirement of leave is not only to "prevent time of the court being wasted by busy-bodies with misguided or trivial complaints of administrative error"; it is also to "remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived". No-one would ever have said that the applicants here were "busy-bodies". They had real grievances. They were the victims of fraud in relationship to their Lesotho passports and citizenship. But the applications for declaratory relief were nevertheless wholly misconceived.

27. The grant of leave to pursue all the reliefs sought, including the two declarations, probably contributed to the unsatisfactory way the "issues" came to be put to Mayo J at the inter partes hearing.

28. It is worth remembering that where Order 53 rule 1(2) refers to "an application for a declaration", this is an extension to the jurisdiction of the court under Order 15 rule 16, by which the court is empowered to make "binding declarations of right whether or not any consequential relief is or could be claimed". This court has held in Jackson v. A.G. (1980) HKLR 323 that where there is a mere expectancy, and no legal right is involved, the court has no jurisdiction to grant a declaration under order 15 rule 16. Whilst the court's power in the public law field to make declarations is broad and discretionary under Ord 53 r1(2), it cannot go too far beyond its scope in private law. This is in line with the reasoning of Lord Scarman in IRC v. National Federation of Self-employed and Small Business (supra) at p.649 E to H.

Basis for Judicial Review

29. The facts of these three cases do not sustain an argument that, in their applications to the Director of Immigration for "change of status", to enable them to prolong their stay in Hong Kong, with or without changes in the conditions of stay, these appellants had enforceable legal rights of any kind against the Director. No such argument was, ultimately, put to us in this court - although, looking at the notice of appeal of the appellants in Civil Appeal No. 163 and 164/92, one might be forgiven for thinking that that was the sole basis upon which counsel Mr. Fenton was proposing to put the case on their behalf. In the notice of appeal filed, the only order sought from this court was "an order declaring that the applicants are stateless people". What the consequences might be in law if such a declaration were made has not been explained by counsel.

30. It is well to recall the cardinal principle, often repeated in this court, that the public law jurisdiction of the court in proceedings under Order 53 is supervisory in character. The question, the only question for which leave should have been given in these three cases must be: Has the Director of Immigration abused his statutory power, in such a way that the court should interfere by way of judicial review? As will be seen later on, failure to appreciate this cardinal principle bedeviled the proceedings in the court below.

Proceedings before Mayo J.

31. The applications in the three cases, consolidated, went before Mayo J. for hearing on 10 and 11 September 1992. The "main argument" advanced by counsel for the applicants was that it was "wrong" for the Director of Immigration to "require" the applicants to leave the territory, as they were "stateless persons". Reliance was placed on Article 1 of the Convention Relating to the Status of Stateless Persons. The expression "stateless person", for the purpose of the Convention, means a person "not considered as a national by any State under the operation of its law". Counsel's argument before the Judge was that under Article 31 of the Convention, there were restrictions on expulsion of stateless persons by the Contracting States; the Convention was extended to Hong Kong on 19 March 1962 and it was "incumbent upon the Director to conform with the treaty obligations of Hong Kong"; accordingly, says counsel, it was "unreasonable in the Wednesbury sense for the Director to make the orders complained of".

32. The judge was put in an awkward position and failed to see that these arguments were misplaced. Counsel for the Director, instead of objecting to this approach, "emphasized the heavy burden which had to be discharged by the applicants" in "establishing" that they had become "stateless". Instead of judicially reviewing the decision-making process of the Director under the statutory scheme, the judge embarked upon the trial of an "issue", on affidavit evidence, without cross-examination: whether the applicants were "stateless" and, in the process, attempted to construe the nationality law of the PRC by reference to the English text of a Chinese statute.

33. The judge held that none of the applicants had succeeded in "establishing" that they were "stateless persons as defined by the Treaty". Accordingly, he said, "it was not incumbent upon the Director to adhere to the requirements of the Treaty and his decision to order the applicants to leave Hong Kong cannot be attacked as Wednesbury unreasonable".

34. The implication of this finding is that if the facts before him had been otherwise, and the applicants did establish their statelessness, he might well have concluded that the Director had acted unlawfully.

35. There were three fundamental objections to this approach.

(i) the "issue" of "statelessness", as defined by "the Treaty", was not justiciable in the local courts, and there is no legal framework within Order 53 for the determination of such an issue;

(ii) the Director had not ordered the applicants to leave Hong Kong (though he was empowered by the Ordinance to do so, once they overstayed);

(iii) there was no statutory machinery whereby the Director could have allowed the applicants to remain in Hong Kong after their limits of stay had expired, rendering lawful that which, by the provisions of s.41 of the Immigration Ordinance, was unlawful: unless, of course, in the exercise of his power, he allowed the change of status and extended the limit of stay. In effect, what counsel for the applicants was seeking to do was to graft, interstitially, onto section 11(5A) something along these lines: "provided nonetheless that where the Director is satisfied upon credible evidence that a person is stateless he shall enlarge the period of stay". That is an act of law-making, not construction of a statute.

The only matter properly before the judge was a very narrow point indeed: namely whether, in deciding to refuse the applications of these applicants for "a change of status" and an enlargement of their limits of stay in Hong Kong, under the provisions of the Ordinance and the Regulations, the Director's decision-making process was in law so vitiated that the judge ought to intervene in the exercise of his judicial review jurisdiction?

36. The question was never put to the judge in that way.

Conclusion

37. The applications originally made by the solicitors on the appellants' behalf to the Director of Immigration, were under s.11(5A)(b) and (c) of the Ordinance - whether the solicitors realized it or not. The reason for refusing the applications was as stated in the letter of refusal. The head of the Visa Control Division of the Immigration Department elaborated upon this in his affirmation filed in answer to the applications for judicial review. He said that it was the policy to "require persons applying for immigration facilities to fulfill certain basic requirements. Prime amongst these is the possession of a valid travel document. Without a valid travel document there can be no visa. This policy of the Hong Kong government is consistent with international practice....". The statutory framework enabled such policy to be lawfully applied.

38. I see no basis whatever for saying that in implementing this policy with regard to the appellants, the Director had acted unlawfully or without jurisdiction or behaved in any way in which the expression "Wednesbury unreasonable" might fairly be applied.

39. It was unfortunate that the judge was lured into a blind alley in which the issue of statelessness became, in effect, litigated.

40. In the course of argument before us counsel for the appellants said that since the enactment of the Hong Kong Bill of Rights the protection of "stateless persons" has become a matter of the domestic law of Hong Kong and thus justiciable in the courts. He referred us to Article 9 which says:

Article 9

Restrictions on expulsion from Hong Kong

A person who does not have the right of abode in Hong Kong but who is lawfully in Hong Kong may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

[cf. ICCPR Art.10]

41. It has, however, not been argued before us that the Director had in any way acted contrary to Article 9, and, given the facts of these cases, it is difficult to see how any such argument could possibly have been mounted.

42. The result of the proceedings is that the judge was plainly correct in his conclusion, that the applications for judicial review must be dismissed. The reasons he gave have become irrelevant, as it has virtually been conceded before us that the judge directed his mind to the wrong question. The arguments of counsel have not been easy to follow; unfortunately no skeleton arguments have been put before us by counsel for the appellants, and if no "concession" has been made in the course of submissions, the outcome is the same, since the fact that the judge did address the wrong issue has now become obvious. The challenge to the Director's exercise of statutory power has wholly failed.

43. For these reasons I would dismiss these appeals.

Bokhary, J.A.:

44. Towards the end of his reply, by which time his difficulties were only too apparent to him, Mr McCoy indicated that if and when removal orders were made against his clients, they would seek to challenge such orders on the basis that they are stateless persons and can resist expulsion on the strength of article 9 of the Bill of Rights, which now extends to immigration legislation. Mr Fenton gave no such indication on behalf of his clients.

45. But their position may be the same as Mr McCoy's clients'. All of that lies in the future.

46. As to the present appeals however, I agree that they cannot succeed. There are, as my Lord has demonstrated, a number of reasons why they must fail. For my own part, I say nothing on the full range of the implications of international obligations on municipal administrative decision-making. Whatever such range, it cannot avail these appellants on these appeals.

47. The course which the proceedings took in the present case cannot be held up as an example to follow in future cases. Such is the value of the guidance to be found in my Lord's observations in that regard, that I wish expressly to state my agreement with the same.

48. I, too, would dismiss these appeals.

Barnett, J.:

49. For the reasons given by my Lord the President, I agree that these appeals should be dismissed.

50. In re Sum Tat-man (1991)2 HKLR 601, an application for judicial review, I had occasion to remind practitioners of the need to consider carefully what allegations are to be made against the decision-maker and on what grounds. If this is done, first, the judge hearing the application for leave can more easily and effectively carry out his screening function; and second, the hearing of the motion, leave having been granted, will not be impeded by argument as to what the applicant can properly argue.

51. That reminder applies equally to the decision which it is hoped to attack. Until that is correctly identified, no attack can be launched.

52. Had this exercise been carried out in a thorough manner, I am reasonably confident that there would not have been the great waste of time and money that has occurred. I have some sympathy with Mr. McCoy's explanation of the apparent need for haste in a difficult area, there being only the Chinese New Year holiday in which to act. A little reflection, however, would surely have suggested that the Director had made only one decision, not two, and that a decision which was unimpeachable on the face of it. The real mischief would not occur until the Director made a removal order upon which an attack might be launched in the manner which is now so depressingly familiar in these courts.