TRAN THI DAU AND ANOTHER v. THE DIRECTOR OF IMMIGRATION

IN THE COURT OF APPEAL

1997, No. 43

(Civil)

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J U D G M E N T

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Litton V-P, giving the judgment of the Court:

1. The appellant is the Director of Immigration. The respondents are Madam Tran Thi Dau and her daughter, Vietnamese migrants.

2. The Director appeals against an order made by Sears J on 17 February 1997 that (1) leave be granted to Madam Tran to apply for judicial review of the Director's decision made on 14 February 1997 refusing to postpone Madam Tran's removal to Vietnam (fixed for 18 February 1997) and (2) there be a stay on removal and an injunction be granted against the Director restraining him from removing Madam Tran and her daughter until the determination of the substantive hearing of the judicial review.

3. The first question we have to decide is the nature of the order made by the judge. Was it ex parte? If it was, then by its very nature it was provisional and capable of being set aside by the judge on the application of the Director. Only in rare cases - for example, there was no jurisdiction to make the ex parte order, and circumstances similar to this - would the Court of Appeal entertain an appeal against an ex parte order.

4. Here, what happened before Sears J was this. When the Director learned of Madam Tran's ex parte application he asked to be heard. The judge appointed 2.30pm on the same day for the hearing. Counsel for the Director, robed, appeared before the judge and was heard. It matters not that Madam Tran was then only represented by a solicitor's clerk. Informal though the procedure was leading up to the hearing, in fact there was an inter partes hearing and the order was made pursuant to such hearing. Accordingly, there is no procedural bar to this appeal.

5. The question before us then is this: Has the judge erred in some way in exercising his discretion to grant Madam Tran leave, and to order the stay?

6. The judge's function was to do no more than to decide whether there was something in Madam Tran's case for further consideration.

7. Madam Tran's case is simply this: In May 1993 she married a Canadian citizen who has since applied to the Canadian Government for a migrant's visa for her and her daughter; there is a real prospect that such visas would be granted; she has a legal right under s13D(2) of the Immigration Ordinance to require the Director to give her all reasonable facilities to enable her to obtain authorisation to enter Canada. In these circumstances, for the Director to exercise his power of removal under s13E(1) to Vietnam is to frustrate her in the exercise of her legal right.

8. The judge obviously came to the conclusion that the point needs further consideration. In other words, it cannot simply be brushed aside.

9. It is not for us to speculate as to how the issue would be ultimately determined at the substantive hearing. Obviously, s13D(2) cannot be viewed in isolation and must be examined in the context of the Ordinance as a whole. Such an examination is not appropriate at the leave stage. Once this point is reached, the conclusion is inevitable that the judge has not erred in the exercise of his discretion.

10. For these reasons, the appeal must be dismissed.