LUI HAU MAN v. DIRECTOR OF IMMIGRATION & ANOTHER

HCAL134/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 134 OF 2002

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J U D G M E N T

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1. In this application for judicial review, the applicant applies for orders of certiorari to quash :

(1) the removal order issued by the Director of Immigration, the 1st respondent, ("the Director") on 17 January 2001 for the removal of the applicant to the Mainland; and

(2) the determination of the Immigration Tribunal, the 2nd respondent, ("the Tribunal") dated 28 January 2002 dismissing the applicant's appeal against the removal order.

FACTUAL BACKGROUND

2. Much of the factual background of this applicant is not in dispute and is set out below.

3. The applicant was born on 24 October 1983 in Jiangxi province. She was taken care of by Madam Lau So Mui ("Madam Lau") until Madam Lau departed for Hong Kong in early 1984 to join her husband, Mr Lui Kam-sang ("Mr Lui"). Madam Lau has since become a permanent resident of Hong Kong. After Madam Lau came to Hong Kong, the applicant lived with and was taken care of by Madam Lau's sister, Lau So Ying, ("Madam Lau's sister") and her husband, Wong Fung Muk ("Mr Wong").

4. There is some controversy as to how the applicant came to live with Madam Lau in the first instance and the relationship between them. During interviews with immigration officers, Madam Lau, Madam Lau's sister and Mr Wong all stated that the applicant was the natural daughter of Madam Lau's sister and Mr Wong, but was adopted by Madam Lau and Mr Lui. However, in a letter dated 24 March 1998 to the applicant, Madam Lau's sister and Mr Wong stated that the applicant was deserted by her natural parents shortly after her birth and was picked up by Mr Wong's family. She was subsequently adopted by Madam Lau prior to the latter's departure for Hong Kong. This is consistent with the findings contained in a letter from the Bureau of Exit-Entry Administration, Ministry of Public Security ("BEEA") dated 26 January 2000 ("BEEA's 1st letter").

5. What is clear, and accepted by the applicant now, is that Madam Lau is not the natural mother of the applicant. It is also not in dispute that Madam Lau and the applicant did not undergo any legal formalities for adoption. It is further the applicant's case, and does not appear to be contested by the respondents, that until after she came to Hong Kong, the applicant did not know that Madam Lau was not her natural mother.

6. In 1995, Madam Lau applied to BEEA for permission for the applicant to come to Hong Kong for settlement and reunion with her parents, being Mr Lui and herself. It is common ground that the application form was not filled out by the applicant herself but by someone on her behalf. It is also common ground that the adoptive relationship between the applicant and Madam Lau was not disclosed in the application form.

7. The application was processed by BEEA and eventually approved. On 26 April 1997, BEEA issued an one-way permit ("OWP") to the applicant. On the strength of the OWP, the applicant exited the Mainland and arrived in Hong Kong on 10 May 1997. The Director granted her permission to remain in Hong Kong as a temporary resident until 10 May 2004. She subsequently applied for and was issued an identity card.

8. Several months after the applicant's arrival in Hong Kong, Madam Lau separated with Mr Lui. She and the applicant moved to live with her boyfriend. In November 1997, as a result of a complaint of indecent assault by the applicant against Madam Lau's boyfriend, the applicant was removed from Madam Lau's care to a children home, where she has since resided. The applicant subsequently withdrew her complaint which, according to her, was due to pressure from Madam Lau. But arising out of this complaint, her adoptive status was revealed. The police referred the matter to the Immigration Department for investigations into whether the applicant's OWP was unlawfully obtained.

9. As part of its investigations, the Immigration Department made enquiries with BEEA on the circumstances leading to the issue of the applicant's OWP by way of a letter dated 12 March 1999. The reply came nearly two years later in the form of BEEA's 1st letter. As the letter forms a major tenet of Mr Tang's arguments, I set out below in full the certified English translation of the body of the letter. It reads :

"Dear Mr. Leung,

I refer to your letters dated 4.1.1999 and 9.12.1999 (Ref. No. RBOI/1554/98) and the contents of which are noted. The circumstances relating to the settlement of Lui Hau Man in Hong Kong are provided herewith as follows:

Our investigation revealed that after Lui Hau Man was born in Zixi County, Jiangxi Province on 24 October 1983, she was abandoned by her own parents. LAU So Mui adopted Lui Hau Man but without completing the legal formalities for adoption. Later on, by claiming a mother and daughter relationship, Lau So Mui managed to obtain a birth certificate for Lui Hau Man and had her registered as a member of the household. In March 1984, Lau So Mui took her son Lui Kei Yuen to settle in Hong Kong, while Lui Hau Man was left in the care of Wong Fung Muk and Lau So Ying (i.e. Lau So Mui's second elder sister).

In 1995 Lui Hau Man applied for settlement in Hong Kong as a dependant of Lau So Mui and Lui Kam Sang. As the applicant concealed the adoption relationship, the local public security authorities, on the basis of the application materials provided, believed that she had met the requirements for Mainland-born children of Hong Kong permanent residents to settle in Hong Kong. They accordingly submitted Lui Hau Man's birth certificate and household registration certificate, as well as Lui Kam Sang and Lau So Mui's certificate of marriage and Hong Kong Permanent Resident Identity Cards, etc. to this Bureau, and via Gongganghe [1996] No.33 (Serial 8), the said application materials were sent to your department for confirmation. In your reply dated 4 February 1997 (Ref. QA1/279), the status of Lui Hau Man as an eligible child was confirmed. In April 1997, Lui Hau Man was issued with a One-Way Chinese Exit Permit No.0343076 (R) for settlement in Hong Kong by the Exit-entry Administration Division of the Jiangxi Provincial Public Security Department. According to Wong Fung Muk and Lau So Ying, when they went to Hong Kong to visit relatives in January 1998, they came to know of Lui Hau Man's situations in Hong Kong, and it was out of sympathy that they told the lie that Lui Hau Man was their daughter.

Lui Hau Man has concealed facts and used deceptive means to obtain a Certificate of Entitlement and the One-Way Chinese Exit Permit No.0343076(R) so that she could settle in Hong Kong. In consideration of the facts that Lui Hau Man was brought up by Lau So Mui, and that Lau So Mui is obliged to take care of Lui Hau Man and to provide her with proper education, it is suggested that Lui Hau Man be permitted to continue to stay in Hong Kong.

With regards,

 

 

Chu Kin Man (sd.)

for Director-General of the Bureau of Exit-entry Administration

Ministry of Public Security, People's Republic of China."

10. Thereafter on 17 January 2001, the Director made a removal order against the applicant. Notice of the removal order was served on the applicant on 20 April 2001. The reasons for removal and the summary of facts in support of the decision were stated to be :

"REASONS FOR REMOVAL

It is confirmed that Miss LUI arrived on an unlawfully obtained One-way Chinese Exit Permit for settlement in Hong Kong. The permission granted to Miss LUI to remain in Hong Kong is therefore null and void. Miss LUI is deemed to have landed in Hong Kong unlawfully. After investigation, it is satisfied that Miss LUI has no legal claims on the Hong Kong Special Administrative Region.

SUMMARY OF FACTS

On 24 January 1998, Miss LUI was referred by the Police to the Immigration Department for investigation of a suspected case of unlawfully obtained One-way Chinese Exit Permit. She attended for enquiries on 16 March 1998 and was released on recognizance on the same day. Miss LUI was born in the Mainland of China on 24 October 1983. She arrived in Hong Kong on the strength of One-way Chinese Exit Permit on 10 May 1997 from the Mainland of China and was permitted to remain until 10 May 2004.

On 26 January 2000, the Mainland authorities confirmed that Miss LUI obtained the One-way Chinese Exit Permit for settlement in Hong Kong by fraudulent means."

11. In his affirmation filed on 12 September 2002, Chief Immigration Officer Wong Pui Chi, who recommended the applicant's removal, further explained the reason for the removal order as follows :

"In making the recommendation, I considered that the OWP no.0343076(R) used by the Applicant to come to settle in Hong Kong on 10 May 1997 was obtained unlawfully or by fraud by concealing the fact the LUI Kam Sang and LAU So Mui were not the natural parents of the Applicant. Had this fact been known to the Director, she would not have been allowed to enter and remain in Hong Kong. The permission to enter and remain in Hong Kong granted to the Applicant by the Director should therefore be null and void. The Applicant should be deemed to have landed in Hong Kong unlawfully."

12. The applicant appealed against the removal order to the Tribunal on the basis that she had the permission of the Director to remain in Hong Kong on the date when the removal order was made. The appeal took place on 15 October 2001, 7 and 28 January 2002. By a Notice of Determination dated 28 January 2002, the appeal was dismissed. The Notice of Determination was served on the applicant on 21 March 2002. On 17 June 2002, the applicant applied for leave to judicial review the decisions of the Director and of the Tribunal. The delay in commencing the proceedings was said to be due to the legal aid application that was approved in late May 2002. No issue, however, turns on this. Leave to apply for judicial review was granted on 28 June 2002. The Notice of Motion was filed on 12 July 2002.

13. Subsequently by a letter dated 3 September 2002, ("BEEA's 2nd Letter"), BEEA clarified that :

(1) The reference in the last paragraph of BEEA's 1st Letter to "a Certificate of Entitlement" was a mistake;

(2) Under Article 7(3) of the Temporary Measures for Administrating the Entry into and Exit from Hong Kong and Macau Regions (中國公民因私事往來香港地區或者澳門地區的暫行管理辦法) ("Temporary Measures"), the term "children" also include adapted children; and

(3) Had the Mainland Public Security authorities known of the adoptive relationship, it would have requested for notarial or confirmation documents, and would have processed and approved of the application upon the relationship being verified to be true.

THE GROUNDS FOR JUDICIAL REVIEW

14. The applicant's grounds for judicial review, as appeared from her Form 86A, are as follows :

A. As against the Director :

(1) The Director had misdirected himself by relying on BEEA's 1st Letter, which was factually and legally wrong; and

(2) The Director had deprived the applicant of a fair hearing before the Tribunal in refusing to tender five related and material informants for cross-examinations by the applicant, amounting to a breach of natural justice.

B. As against the Tribunal :

(3) The Tribunal erred in accepting the Director's removal order on the basis of BEEA's 1st Letter;

(4) The Tribunal had failed to discharge its statutory responsibility to make findings on the facts of the case;

(5) The Tribunal had misdirected itself on the law with regard to the applicable law governing the applicant's application for OWP;

(6) The Tribunal erred on the facts in finding that the applicant's maternal uncle had made up the household record and birth certificate for her and that at the material time adopted children are not entitled to acquire OWP;

(7) The Tribunal had deprived the applicant a fair trial by refusing to rule on issues relating to the burden of proof, the standard of proof, the Director's duty to particularize his allegations and the right to cross-examine the material informants.

15. Only Ground (1) is relevant to the Director's decision to issue the removal order. The other grounds all relate to the determination of the Tribunal. Although Ground (2) is a complaint against the Director, it is a complaint relating to the conduct of the appeal before the Tribunal and therefore does not bear on the Director's decision to issue the removal order.

THE DIRECTOR'S DECISION

A. BEEA's 1st Letter

16. The applicant's main complaint is that BEEA's 1st Letter is both factually and lawfully wrong such that the Director's reliance on it in coming to the decision to issue the removal order is erroneous. In contending that BEEA's 1st Letter is factually and lawfully wrong, the applicant places great emphasis on the part of it which states :

"[The applicant] has concealed facts and used deceptive means to obtain a Certificate of Entitlement and the One-way Chinese Exit Permit No.0343076(R) so that she could settle in Hong Kong."

17. Under Article 7(3) of the Temporary Measures, children who have no support in the Mainland and who are dependent on their direct and close relatives may apply to come to settle in Hong Kong.

18. Under section 2AB(6) of the Immigration Ordinance, the Director may issue a certificate of Entitlement to an applicant was is a permanent resident of Hong Kong within the meaning of paragraph 2(c) of Schedule 1 of the Ordinance.

19. Under paragraph 2 of Schedule 1 of the Immigration Ordinance, the categories of permanent residents of Hong Kong include inter alia :

(a) Chinese citizens born in Hong Kong within the period specified in paragraph 2(a);

(b) Chinese citizens who has ordinarily resided in Hong Kong for a continuous period of not less than seven years; and

(c) persons of Chinese national born outside Hong Kong to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b).

20. Paragraph 2(c) of Schedule 1 is in substantially the same terms as Article 24(3) of the Basic Law.

21. Mr Tang, for the applicant, argues that the reference to "Certificate of Entitlement" clearly shows that BEEA acted under the erroneous belief that the applicant obtained her OWP under Article 24 of the Basic Law, which was not yet in force at the time the OWP was issued to the applicant, and whereas the applicant's OWP should have been granted under Article 7(3) of the Temporary Measures. Mr Tang further contends that the applicant's status as an adopted child of Madam Lau was irrelevant to her application for OWP under the Temporary Measures, such that the non-disclosure of the status does not render the OWP to be unlawfully obtained, having regard to sections 42(3) and (5) of the Immigration Ordinance, Cap.115.

22. It is evident from BEEA's 2nd Letter that the reference to "Certificate of Entitlement" in BEEA's 1st Letter was an error. BEEA admitted so. But a mere mistake of fact is not a ground for judicial review. The mistake must either be a condition precedent to the exercise of the jurisdiction, or is the only evidential basis for the decision, or is a matter that expressly or impliedly had to be taken into account : R. v. London Residuary Body ex.p. Inner London Education Authority [1998] JR 238, 240.

23. Mr Tang argues, however, that the error is not a clerical mistake but demonstrates that BEEA acted under a mistaken belief as to the applicant's entitlement to obtain OWP when it issued BEEA's 1st letter. In my view, it matters not whether it is a mere clerical mistake or whether BEEA acted under a mistaken belief as to the law under which the applicant's application for OWP was considered. The applicant's OWP was granted before 1 July 1997, hence before the Basic Law came into operation, the applicant's entitlement to OWP could only have been considered under Article 7(3) of the Temporary Measures. Accordingly, in deciding whether the Director was correct in his conclusion that the OWP was unlawfully obtained, the court can only have regard to the Temporary Measures. Article 24 of the Basic Law is irrelevant.

24. Secondly, it appears from the Summary of Facts and Reasons for Removal served together with the Removal Order that the Director had only relied on BEEA's 1st letter in respect of the factual circumstances stated therein, namely, the applicant is not the natural daughter of Madam Lau and Mr Lui and there was no disclosure of this in the application for the OWP. The Director is bound to accept and act on these factual findings of BEEA : Li Fu Shan v. The Director of Immigration & Anor (unreported), HCAL813 of 2001, Hartmann J at paragraphs 78-81. There is no suggestion that BEEA had erred on any of these facts. In determining the applicant's challenge to the Director's decision, the issue is whether on these undisputed facts, the Director had misdirected himself in concluding that the OWP was unlawfully obtained. It is to this core question that I now turn.

B. Was the OWP unlawfully obtained?

25. The Director's removal order was served under section 19(1)(b)(ii) of the Immigration Ordinance, which reads :

"A removal order may be made against a person requiring him to leave Hong Kong -

(a) ...

(b) by the Director if it appears to him that that person -

(i) ...

(ii) has (whether before or after commencement of the Immigration (Amendment) (No. 4) Ordinance 1981 (75 of 1981)) landed in Hong Kong unlawfully or is contravening or has contravened a condition of stay in respect of him;"

26. The removal order was issued on the basis that the applicant had obtained her OWP unlawfully in that her adoptive relationship with Madam Lau had not been disclosed, and the Director's permission to land was given on the basis of this unlawfully obtained OWP.

27. Section 42(3) of the Immigration Ordinance provides :

"(3) A travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card shall be deemed to be unlawfully obtained for the purposes of this section if any person made a false statement or representation for the purposes of or in connection with an application for the issue or renewal of the same."

28. Section 42(5) further provides that "false" means false in a material particular.

29. There is no dispute that the OWP is a travel document so that sections 42(3) and (5) are relevant. The pertinent question is whether the non-disclosure of the fact that Madam Lau and Mr Lui are not the natural parents of the applicant constitutes a material particular in connection with the OWP application.

30. Mr Tang cites the case of R. v. Secretary of State for the Home Department ex parte Jayakody [1982] 1 WLR 405 and relies on the judgment of Lord Denning MR (at 463e-f), which reads :

"I can understand that an immigrant is under a positive duty to disclose material facts, but I do not think he is under a duty to disclose facts which are not material. What facts then are to be regarded as 'material facts'? I think that they are facts which are of a decisive character. They must be such that, if he had disclosed them, the Home Secretary would have been bound to refuse him entry or on which the Home Secretary would in all probability have refused him entry."

31. Mr Tang therefore argues that to constitute material fact, the fact must be such that if it had been disclosed, the Mainland authority would have refused to issue the OWP.

32. Subsequent to Jayakody case, Lord Denning MR's formulation had been qualified by Staughton LJ in Durojaiye v. Secretary of State for the Home Department [1991] Imm AR 307, 313 and Laws J (as he then was) in R. v. ex parte Ming [1994] Imm AR 216, 222. In Laws J's judgment, material facts include facts which would have led to further inquiries being made, which might have affected the ultimate outcome of the case. In Kong Sau Mei v. Director of Immigration [1999] 1 HKC 174, 181G, Keith J (as he then was) expressly preferred Staughton LJ and Laws J's views to that of Lord Denning MR. Further in Sukhjinder Kaur v. Secretary of State for the Home Department [1998] Imm. AR 1, 8, Ward LJ, giving the judgment of the Court of Appeal observed that : "the time has come when we should put [Lord Denning MR's] test to rest. It seems to me quite inconsistent with a line of authority which has received approval in this court and above." Reference was made to the decision in the House of Lords in R. v. Home Secretary ex parte Bugdaycay [1987] 1 AC 514, 525 and the judgment of Staunton LJ in Durojaiye. The Court of Appeal held that to be material, the facts did not have to be decisive, but that it was only necessary that such facts were likely to influence the decision.

33. In my view, both as a matter of reasoning and as a matter of judicial comity, the test laid down in Durojaiye is to be preferred. Facts are material particular if the relevation of such facts was likely to influence the decision.

34. Mr Tang submits that the fact that Madam Lau is not the natural mother of the applicant is not a material particular for two reasons. Firstly, it is said that under the law applicable in the Mainland, adopted children enjoy the same legal status and rights as natural children. Article 7(3) of the Temporary Measures does not differentiate between natural and adopted children. Secondly, the application form for OWP does not expressly require an applicant to disclose any adoptive relationship.

35. Mr Li, for the 1st respondent, initially took objection to the first argument on the basis that Mainland law, being foreign law, had to be proved by expert evidence, and the applicant had not adduced any expert evidence in this regard. There can be no doubt that Mr Li is correct on this point. However, fortunately in this case, there are other admissible materials to which the court can resort to in relation to the legal status of adopted children in the Mainland. There is firstly BEEA's 2nd Letter in which it expressly states that under Article 7(3) of the Temporary Measures, the term "children who have no support in the Mainland" refers to children whose parents are both resident in Hong Kong and includes natural and adopted children (內地無依靠兒童指父母均在港定居，包括親生子女和收養子女). In addition, it can be seen from the decision of Li Fu Shan (at paragraph 30) that under the Adoption Law of the PRC, adopted children enjoy the same status as natural children. Having regard to BEEA's 2nd Letter and the passage in Li Fu Shan, Mr Li, quite properly, does not seek to take issue with the proposition that Article 7(3) of the Temporary Measures applies to adopted children as well.

36. That however does not mean that the true relationship between Madam Lau and the applicant is immaterial to the applicant's OWP application. At the hearing before the Tribunal, the Director had adduced a press release dated 28 September 2001 concerning a visit to the Immigration Department by the Director General of BEEA. The relevant part of the release reads :

" To enable children adopted in the Mainland by Hong Kong residents to lawfully join their adoptive parents in Hong Kong through the One-way Permits Scheme, the Public Security Bureau offices in the Mainland will, with effect from October 1, 2001, start accepting applications from adopted children in the Mainland for entry into Hong Kong to join their adoptive resident parents. The Immigration Department will provide appropriate assistance to the relevant Mainland authorities to verify the immigration status and family details of the adoptive parents so as to ensure that the arrangement will not be abused ..."

37. As concluded by Hartmann J in Li Fu Shan (at paragraphs 32-33), it is evident from the press release that prior to 1 October 2001, OWP applications from adopted children were not accepted. Even though the law did not differentiate between adopted children and natural children, the reality is that, at the material time, there was no administrative mechanism whereby adopted children could apply or obtain OWPs. The importance of such administrative measures must be self-evident. To say the least, BEEA would need to establish whether the adoption is genuine or legally recognized in order that the OWP scheme will not be abused : see also Li Fu Shan at paragraphs 35-36. Seen in this light, the fact that Madam Lau is not the natural mother of the applicant must be a material particular in that its relevation will influence BEEA's decision in considering the applicant's OWP application.

38. As to the argument that the OWP application form does not expressly require a disclosure of adoptive relationship, the absence of such stipulation does not necessarily mean that BEEA is not concerned or interested in whether the applicant is a natural or adopted child of her parents residing in Hong Kong. It is equally consistent with the fact that BEEA would only accept and process applications by applicants who were natural children of Hong Kong permanent residents. At the most, the absence of such express stipulation in the application form only assists in showing that the applicant did not deliberately conceal or withhold the information.

39. In the premises, the Director's view that the OWP was unlawfully obtained in that the non-disclosure of the true relationship between the applicant and Madam Lau and Mr Lui constitutes falsity in a material particular cannot be criticized as being irrational or an error on fact or law. It follows that the applicant's challenge to the Director's decision to issue the removal order must fail.

DETERMINATION OF THE TRIBUNAL

A. Ground 1 : Failure to tender witnesses for cross-examination

40. The applicant's first complaint is that the Director had refused or failed to make available five witnesses for cross-examination at the appeal before the Tribunal. The witnesses involved are Mr Chu, the author of BEEA's 1st letter, Madam Lau and her sister, Mr Lui and Mr Wong. Apart from Madam Lau and Mr Lui, the other three witnesses are resident in the Mainland.

41. In the course of his submissions, Mr Tang accepts that the Director has no power to compel the three witnesses who are outside the jurisdiction to testify or to secure their attendance before the Tribunal. Mr Tang nevertheless says that the Director could and should have sought an adjournment and then invited the witnesses to attend the hearing. Alternatively, it is said that the Director should have sought clarifications from them and procured affidavits from them.

42. Quite apart from the fact that this line of argument is a departure from the grounds in Form 86A, the argument does not advance the applicant's complaint under this ground unless it can be shown that the matters sought to illicit from these witnesses are material and pertinent to the appeal. Mr Tang contends that all the five witnesses are important to establish, firstly, how the applicant came to be taken care of by Madam Lau and, secondly, whether the applicant's OWP application was considered by BEEA with reference to the Temporary Measures or the Basic Law. On the latter point, there can be no ambiguity that the applicant's OWP application, which was approved before 1 July 1997, was not governed by the Basic Law which had yet to become operative. As to whether the applicant was an orphan picked up by the Wong's family and then adopted by Madam Lau or that she was the natural daughter of Madam Lau's sister and adopted by Madam Lau, it is equally immaterial to the issues before the Tribunal. What the appeal was concerned with was the correctness of the Director's decision to issue the removal order, which in turn involved considerations as to whether there were factual and legal support for the conclusion that the initial permission to stay was nullified by the OWP being unlawfully obtained. Irrespective of whether the applicant is an orphan or is the natural daughter of Madam Lau's sister, it remains a fact that she is not the natural daughter of Madam Lau, a fact that she had accepted before the Tribunal. Mr Tang submits that if the applicant is an orphan picked by the Wong's family, it will support a case of de facto adoption under the PRC law. Quite apart from the fact that there is no expert evidence to that effect, PRC law being foreign law that has to be proved by evidence, the point remains that the adoptive relationship is a material particular that was not disclosed in the OWP application. The matters which the applicant sought to elicit from their witnesses are therefore not material to the issues at the appeal. It cannot therefore be said that the Director was under an obligation to either call them as witnesses or obtain from them the information requested by the applicant. There is no procedural irregularity or breach of natural justice involved.

43. After all, this is not a case where the applicant was denied of her right to call witnesses : cf R. v. Hull Prison Board of Visitors (No.2) [1979] 3 A1/ER 545. The Director had provided her legal representative with the contact details of these witnesses and indicated that he did not object to any of the witnesses giving evidence. The applicant could, if so desired, subpoenaed Madam Lau and Mr Lui or arranged for Madam Lau's sister and Mr Wong to give oral or affidavit evidence or to provide the clarifications. Mr Tang argues that because the applicant is no longer on good terms with Madam Lau, Madam Lau's sister, Mr Lui and Mr Wong, it is unreasonable and unfair to ask her to approach these witnesses to ask them to give evidence. I cannot agree. If these witnesses are unwilling or unfriendly witnesses, they remain so whether they are called by the Director or by the applicant. It is neither unreasonable nor oppressive to expect the applicant to call them if the applicant considers it pertinent to her appeal to clarify how she came to be cared of by Madam Lau.

44. There is no denial of natural justice or of a fair trial by not making available the five witnesses for cross-examination.

B. Grounds 2 and 3 : acceptance of BEEA's 1st letter and the failure to make findings of fact

45. It will be convenient to deal with the applicant's second and third grounds of complaint together. In essence, the applicant contends that BEEA's 1st letter was wrong in the application of the relevant law. The Tribunal therefore erred in upholding the Director's reliance on BEEA's 1st Letter. The Tribunal, in discharge of its statutory duty to determine the facts, should have gone on an independent assessment of whether it is the Basic Law or the Temporary Measures that applied to the applicant's OWP application and made a finding as to whether the OWP was unlawfully obtained.

46. It seems to me that there is an over-emphasis on the mistaken reference to "Certificate of Entitlement" in BEEA's 1st Letter. The Tribunal clearly was aware of this mistake in BEEA's 1st Letter but took the view that there was nothing to show that the findings in the letter were otherwise wrong or unsafe to be relied upon : paragraph 6 of the Determination.

47. The Tribunal is entitled to take that view. Indeed as the preceding part of this judgment shows, the Director relied on BEEA's 1st Letter for the factual findings of BEEA's investigation and it is not the applicant's case that these findings are flawed.

48. In addition, while the Tribunal accepted that the Director had based on the findings in BEEA's 1st Letter, it had gone on to analyse the evidence and materials adduced at the appeal and made findings on them. In particular, the Tribunal concluded that the non-disclosure of the adoptive relationship was material and misleading in the context of a family reunion application, given that "an adopted child was not qualified to apply for OWP at the material time". Mr Tang takes exception with this comment of the Tribunal. I agree that as a matter of construing the Temporary Measures, on the basis of the materials available, both adopted and natural children are covered by Article 7(3) of the Temporary Measures. However, having regard to the reality that there was no administrative mechanism to enable adopted children to submit OWP application, the Tribunal had not misdirected itself in considering that an adopted child like the applicant could not have applied for OWP at the material time.

49. There is nothing in the 2nd and 3rd grounds of challenge against the Tribunal's Determination.

C. Ground 4 : Failure to apply the correct law

50. The applicant's complaint under this ground is that the Tribunal had failed to hold that the OWP was issued to the applicant pursuant to Article 7(3) of the Temporary Measures and not under Article 24(3) of the Basic Law. At the heart of this complaint is the submission that the applicant's adoptive status is only relevant to an OWP application under the Basic Law but not to the applicant's application, which was made under the Temporary Measures.

51. I had, in dealing with the Director's decision, concluded that the adoptive status of the applicant is a relevant and material particular, the disclosure of which will influence BEEA's decision to issue the OWP. Further, it is plain that the applicant's OWP application was made under the Temporary Measures. The Tribunal in stating that the reference to "Certificate of Entitlement" was erroneous impliedly acknowledged that the Basic Law has no application to the applicant. In the premises, there is no substance in this compliant.

D. Ground 5 : Error in the findings of fact

52. Two of the factual findings of the Tribunal are challenged by the applicant as being erroneous. They are :

(1) that the household record and the birth certificate were made up by the brother-in-law of Madam Lau's sister : paragraph 7 of the Determination; and

(2) that adopted children are not qualified to apply for OWPs at the material time :

paragraph 9 of the Determination.

53. With regard to the second finding, I had in dealing with Grounds 2 and 3 pointed out that the Tribunal did not misdirect itself in considering that adopted children could not have been issued with OWPs at the material time because there was no administrative measures and mechanism to deal with their applications. For the same reason, it cannot be said that the Tribunal erred in finding that adopted children are not qualified to apply for OWPs at the material time, even through Article 7(3) of the Temporary Measures applies to both adopted and natural children.

54. In relation to the first finding challenged, the applicant says that she never told the Tribunal that the household record and the birth certificate were made up by the brother-in-law of Madam Lau's sister. She had only stated that Lau Leung Ka, the brother of Madam Lau and Madam Lau's sister, had helped her to obtain from the Mainland her registration record for the purpose of conducting the appeal, and that she found her birth certificate being inserted in the folder of the Grain Allocation Card.

55. Clearly, there is a misunderstanding of the Tribunal's finding in this regard. In the bundle of documents before the Tribunal is a letter dated 24 March 1983 from Madam Lau's sister and Mr Wong to the applicant, in which it says :

"Your eldest uncle obtained a birth certificate for you, indicating that your present adoptive mother Lau So Mui gave birth to you on 24 October 1983. It was also recorded in the registration book."

The eldest uncle referred to in the letter is Wong Fung Sheung, who is the brother of Mr Wong and therefore the brother-in-law of Madam Lau's sister.

56. Given that the applicant is not the natural daughter of Madam Lau, the household record and the birth certificate, insofar as they record that Madam Lau gave birth to the applicant, must be untrue. The Tribunal's finding that the applicant did not dispute that the household record and the birth certificate were made up by the brother-in-law of Madam Lau's sister cannot be said to be wrong.

E. Ground 6 : Failure to rule on the Director's duty to particularize his case and on issues of burden of proof and standard of proof

57. The applicant also complains that the Tribunal failed to require the Director to particularize the allegations so that the applicant was left with a doubt as to whether the Director was relying on Article 7(3) of the Temporary Measures or Article 24 of the Basic Law. In my view, such particularization or clarification is not necessary for there can be no doubt that the Director could not invoke Article 24 of the Basic Law. The applicant could not have been confused on this. Still less can she or her legal adviser say that they do not know what case to meet at the appeal. If there is any confusion or doubt, it is only because they had read too much into the mistaken reference to "Certificate of Entitlement" in BEEA's 1st Letter.

58. Mr Tang further submits that despite his submissions, the Tribunal did not in the preliminary ruling dated 15 November 2001 rule on the burden and standard of proof applicable to the appeal. Mr Li is correct in observing that the preliminary ruling does not form any of the decisions to be reviewed in these proceedings. But considering that the issues of burden and standard of proof are relevant to whether the Tribunal's determination is liable to be reviewed, I will address the submissions advanced on these issues.

59. On the burden of proof, Mr Tang submits that it falls on the Director. The Director accepts that he bears the burden of proving that the permission to stay was invalidated by the OWP being unlawfully obtained, which arose out of the failure to disclose the adoptive relationship. The authorities are also clear on this. In Khawaja v. Secretary of State for the Home Department [1984] 1 AC 74, Attorney General v. Chen Huan Qiong (unreported), HCMP1926/1994, and also Li Fo Shan, the courts all took the view that where the executive seeks to disturb the permission granted to the applicant to remain, the executive bears the burden of proving that the permission was invalidated by deception fraud or otherwise.

60. There is no issue between the applicant and the Director both at the appeal and in this judicial review on the burden of proof. It was therefore not incumbent upon the Tribunal to rule on the matter, and it must be taken that it preceded on the basis that the Director bears the burden of proof.

61. As to the standard of proof, the Tribunal had adopted the civil standard of balance of probabilities : paragraph 10 of the Determination. Mr Tang argues that it should be a higher standard, namely, a high degree of probability. In Khawaja at 112-114, Lord Scarman, after referring to the choice of proving beyond reasonable doubt, as in criminal cases, and the civil standard of the balance of probabilities, concluded that the civil standard as interpreted and applied by the civil courts will meet the ends of justice. He was further of the view that the degree of probability would vary according to the nature and gravity of the issue. Lord Fraser (at 114D), in agreeing with Lord Scarman, stated that "the appropriate standard is that which applies generally in civil proceedings, namely proof on a balance of probabilities, the degree of probability being proportionate to the nature and gravity of the issue". Lord Bridge (at 124D-E) and Lord Templeman (at 128C) also agreed with Lord Scarman's formulation.

62. In Lau Fong v. The Director of Immigration (unreported), HCAL128/1999, Hartmann J in dealing with counsel's arguments as to burden of proof, said this :

"Mr Pun, who appeared on behalf of the Applicant, has argued that, according to the Director, the Applicant obtained permission to enter and stay in Hong Kong by fraud or deception. As a result, the burden of proving that she obtained permission by deception rests upon the Director and the standard of proof required, while a civil standard, is at the top end of the scale; namely, proof to a high degree of probability. Mr Pun seeks support for his contention in the House of Lord's decision of Khawaja v. Secretary of State [1984] AC 74.

Miss Kwok, who appeared on behalf of the Director, contended that this was not a case in which the criteria laid down in Khawaja as to the burden and standard of proof should apply. This was a case, she argued, where the only challenge could be on standard 'Wednesbury' principles.

Miss Kwok argued that Khawaja only applies to those cases where an applicant is able to show that he or she entered Hong Kong with the permission of the Director and thereafter, while remaining in Hong Kong, had been detained and arrested as an illegal entrant on the basis that he or she had obtained the original permission to enter by means of deception. In such circumstances, when an applicant is residing in Hong Kong by virtue of an ex facie valid permission, it is not sufficient for the Director to disturb that position of settled residence unless evidence exists to show to a high degree of probability that such permission was obtained by deception.

Miss Kwok has argued that in the present case, however, the Applicant was not residing in Hong Kong at the time she was refused permission to land. The Applicant had left Hong Kong on 5 September 1999 and was refused permission to land when she attempted to re-enter Hong Kong on 4 October 1999. In such circumstances, the Applicant was not residing here by virtue of an ex facie valid permission. That permission had fallen away when she had left Hong Kong in September and, upon her return, she was effectively seeking a fresh permission to enter and stay.

I am satisfied that Miss Kwok is correct in her submissions. ..."

63. Kaplan J in the earlier case of Chen Huan Qiong, after stating that the Director, having given permission to the applicant to remain, bears the burden of showing that his permission was somehow invalid as a result of the use of forged passport, said that the Director had to establish on a balance of probabilities that the passport was forged. In the recent case of Li Fu Shan, (at paragraph 76), Hartmann J similarly held that the standard of proof required of the Director was that he demonstrated on a balance of probabilities that the OWP had been unlawfully obtained and therefore had been a nullity.

64. It will appear from these authorities that the standard of proof required of the Director is the civil standard of balance of probabilities. Where civil liberty is at stake, such as when an applicant is detained on account of being an illegal entrant pending removal, or where the gravity of the occasion calls for it, the court may require to be satisfied on a higher degree of probabilities.

65. Seen in this light, the Tribunal's reference to the civil standard of balance of probabilities cannot be said to be irrational or erroneous. Indeed, in Khawaja, Lord Scarman summarized the position thus (at 114) :

"Once the applicant had shown that he had entered the United Kingdom with the leave of the immigration officer, the burden of proving that he had obtained leave by deception was on the executive and the standard of proof was the balance of probabilities."

Lord Scarman's formulation applies with full force to the present case. It cannot be said that because the Tribunal did not specifically rule on the burden or standard of proof, the applicant was deprived of a fair hearing. Ground 6 therefore fails.

66. In short, the challenge to the Tribunal's determination fails. The application for judicial review has to be dismissed.

COSTS

67. Mr Li at the close of the submissions invites me to give special considerations to the issue of costs in the light of the submissions regarding the hearing bundles made at the beginning of the hearing and the fact that the applicant is legally aided.

68. The matter arose in this way. A few days before the hearing of the judicial review application, the applicant's solicitors lodged with the court six bundles of documents, the bulk of which does not form any part of the documents filed in the judicial review proceedings. As a result of this, the court wrote to the applicant's solicitors to make enquires, referring in particular to paragraph 1.9 of Practice Direction SL3. The bundles were subsequently retrieved and replaced by seven bundles of documents. The additional bundle consists of a core bundle. It remains to be the case that the majority of the bundles consists of documents and materials never exhibited to the applicant's affirmations nor filed in these proceedings.

69. On the first day of the hearing, the question of the bundles was raised. Mr Li had previously written to the court stating that the bundles were not agreed bundles and the Director objected to the use of documents not in evidence and/or that are irrelevant. It then transpired that the Department of Justice, upon receipt of the draft index of the proposed bundles, had already raised the issue that a large number of the documents were neither court documents nor evidence filed in the judicial review proceedings and objected to their inclusion in the hearing bundles. The Department of Justice had also made suggestions on the arrangement of the bundles with a view to avoiding duplication of the contents of the bundles. None of these was taken on board. In the end, I granted leave to the applicant to use some of the materials contained in the bundles but that were not in evidence or filed in these proceedings. I also directed that affirmations be filed to exhibit the documents and to verify their accuracy which relates, principally to the transcripts of the hearing before the Tribunal.

70. All these are of course unsatisfactory. If the legal advisers of the applicant considered that other than the affirmations and the exhibits filed in support of the judicial review application, there were further documents and materials that had to be relied upon or referred to, then it must be incumbent upon them to put them forward by way of affidavits. Had this been done, the arguments on the first day of the hearing would not have been necessary.

71. What is even more unsatisfactory is that notwithstanding the voluminous hearing bundles, very few of the documents therein were referred to in either the Form 86A or Mr Tang's written submissions. Only a small portion of the transcripts of the hearing before the Tribunal was referred to. The bundle of authorities used in the hearing before Tribunal is not necessary because there is separately a bundle of authorities for the judicial review hearing. There are also duplications between the Bundle of Documents of the applicant, the Bundle of Documents of the 1st respondent and the Bundle of Exhibit.

72. All these suggest that the applicant's legal advisers had not properly considered the preparation of bundles and certainly had not had regard to the Practice Direction. This is particularly unsatisfactory having regard to the fact that these proceedings are fought and defended on public funds. Even if the applicant is not legally aided, the legal profession owes it to the client to be careful and vigilant in incurring legal costs. I consider that this is a case where the applicant's legal representatives ought to be disallowed some of their costs in the preparation of the hearing bundles, insofar as they are unnecessarily incurred.

CONCLUSION

73. For the reason aforesaid, the application for judicial review is dismissed. There will also be an order nisi that the applicant pays the Director's costs of the application.

74. Additionally, I order that the applicant's legal representatives' costs of and incidental to the preparation of the hearing bundles be disallowed save in relation to :

(a) the Core Bundle,

(b) the Bundle of Pleadings,

(c) the Bundle of Affirmations,

(d) the Bundle of Exhibits,

(e) those parts of the Bundle of the 1st respondent's Documents that do not duplicate with the Bundle of Exhibits, and

(f) those parts of the Bundle of Transcripts and the Bundle of the applicant's Documents that form the exhibits to the affirmation of Ng Yin Ling Jennifer and the 2nd Supplemental Affirmation of the applicant.

Subject to this, the applicant's own costs be taxed in accordance with the Legal Aid Regulations.