ROBERT LEE FLICKINGER . IMMIGRATION DEPARTMENT

CACV52/1987

IN THE COURT OF APPEAL

Civil Appeal
 No. 52 of 1987

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J U D G M E N T

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Clough, J.A.:

          This is the judgment of the court.

1. The applicant originally appealed against the refusal of Penlington J. on the 6th May 1987 to grant him orders of certiorari and mandamus against the Director of Immigration who had on the 13th and 14th January 1987 respectively refused his separate applications for an extension of stay in Hong Kong as a visitor and for permission to take up employment in Hong Kong.  The appeal against the judge's refusal to quash the Director’s decision contained in his letter dated the 14th January 1987 has not been pursued before us.  We are therefore only concerned on this appeal with the judge’s refusal to quash the Director’s refusal of the applicant’s application for an extension of his stay as a visitor and the judge’s refusal to issue mandamus against the Director to re-open the case of the applicant in respect of that application.

2. The applicant is a citizen of the United States of America.  He first came to Hong Kong on the 23^rd June 1985 and since that date he has made numerous visits of varying duration.  In September 1985 he incorporated his wholly owned company, Currency Brokers (HK) Ltd. (“the Hong Kong company”) to engage in foreign currency business.  On the 10^th April 1986 the Director permitted him to change his status from that of visitor to employment so that he could work here as the managing director of the Hong Kong company.  On the same date his stay in Hong Kong was extended to the 10^th October 1986.

3. A considerable volume of evidence was filed regarding the applicant’s subsequent difficulties in connection with the Hong Kong company’s business activities and about his subsequent comings and goings to and from Hong Kong.  For the purposes of this appeal it suffices to give a brief outline of these matters.

4. The Hong Kong company ceased to trade in April 1986 as a result of the applicant and the company being prosecuted for, and deeming it expedient to plead guilty in the District Court to, an offence of bookmaking contrary to section 7(1)(a) of the Gambling Ordinance (Cap. 148) which the court treated as a purely technical offence.  A recent belated appeal against their “convictions” by the applicant and the Hong Kong company has so far resulted only in an interlocutory decision: see Criminal Appeal No. 186 of 1987 (Unreported).

5. Thereafter attempts by the applicant through his solicitors to obtain an extension of his employment visa beyond the 10^th October 1986 to enable him to continue his investment plans in Hong Kong were unsuccessful.  A letter dated the 24^th October 1986 was sent by the Director to the applicant’s solicitors informing them that his application for an extension was refused.  The letter stated that, as an alien, he would require to obtain a visa through a British Consular post overseas if he wished to establish a business or to work in Hong Kong.  It also mentioned that a person who does not have the right to land in Hong Kong is subject to examination upon his arrival here.

6. By this time the applicant has made substantial investments in Hong Kong.  He had invested approximately $2 million in the Hong Kong company.  In the name of that company and of another company owned by him he had acquired, with the help of a mortgage, a house for approximately $5.4 million and a car for $520,000.  When his company ceased business it had retained its office and three of its staff with a view to the subsequent resumption of legitimate business activities or the sale of the company.

7. Unfortunately the applicant, who had left Hong Kong on the 27^th October 1986, did not become aware of the Director’s letter dated the 24^th October until the 9^th December.  In the meantime, on the 2^nd December he returned to Hong Kong from Los Angeles.  He had no visa but expected no difficulty in obtaining permission to enter Hong Kong as a visitor for a 30 days stay on presentation of his American passport.  He had done this previously on the 3^rd and the 17^th October.  It must have come as an unpleasant surprise to find that he was refused entry to Hong Kong without a visa and obliged to return to Los Angeles.

8. On his return to Los Angeles he applied for and obtained a visa from the British Consulate there.  While he was in Los Angeles he learned that proceedings had been taken against him in the High Court in Hong Kong on the 2^nd December.  On that date an ex parte Mareva injunction has been obtained by the liquidators of an Australian company, Currency Brokers (Australia) Pty. Limited, against four proposed defendants, namely the Hong Kong Company, Protell Investments Limited (a company controlled by the applicant) the applicant and the Hong Kong and Shanghai Bank Corporation. By the injunction the first three proposed defendants were injuncted against removing or disposing of their assets in Hong Kong until further order and the same defendants and the Bank were ordered to make appropriate discovery.

9. On the following day the plaintiff company issued a writ against the injuncted parties.  The claim against the Hong Kong company was for A$1,463,345.66 alleged to be money had and received by that company from the plaintiff or alternatively held by that company consequent upon a disposition of property made by the plaintiff to that company with the intention to defraud the plaintiff’s creditors.  The same sum was claimed as allegedly being monies received from the plaintiff and held by the Hong Kong company as trustee for the plaintiff.  Against Protell Investments Limited the plaintiff claimed an account and inquiry and payment of all sums found due as monies had and received by that company from the plaintiff through the Hong Kong company or otherwise.  The claims against the applicant included the sum of A$1,463,345.66 as damages for alleged breach of his fiduciary duty as a director of the plaintiff and the sum of A$198,641.57 alleged to be monies had and received from the plaintiff by the applicant or alternatively expended by the plaintiff on the applicant’s behalf.

10. On the 9^th December 1986 the applicant returned to Hong Kong and presented his passport and visa to an immigration officer.  He was told he needed a referred visa and at first he was again refused entry.  After some hours of discussion he was given permission to stay until the 9^th January 1987 as a visitor after being required to sign an “undertaking” which recorded that he understood that he must leave Hong Kong on or before that date and that he would not apply for change of status or extension of stay.  In the same document he recorded his understanding that his current visa might not be honoured “next time” and that future trips would require a sponsor and a visa application sent to Hong Kong in advance.

11. Having entered Hong Kong the applicant consulted solicitors.  On the 15^th December they sent a letter on his behalf to the Director, requesting that it be accepted by him as an “appeal” pursuant to section 53 of the Immigration Ordinance (Cap. 115) against the applicant’s undertaking given on the 9^th December.  The letter asserted that the applicant had only given the undertaking because if he had not done so it would have meant he could not enter Hong Kong despite the fact that he had obtained a visa from the British Consulate in Los Angeles.  The applicant’s solicitors complained of the harshness of the requirement that the applicant should not apply for an extension of stay in Hong Kong and made the point that that requirement deprived the applicant of his right to invite the Director to consider an application for an extension on the merits.

12. The letter went on to assert that “On arrival in Hong Kong circumstances have become apparent which make it imperative that client be permitted an extension of stay”.  The solicitors added that they proposed to make written and oral presentation to the Director in support of an extension and they requested confirmation that a properly made application would be processed by the Director in the usual way.

13. There followed a meeting on the 24 December between the applicant’s solicitor, Mr. Midgley, and a Chief and Senior Immigration Officer.  At the meeting the officers expressed their understanding of the effect of the applicant’s undertaking and they explained that the practical result of lodging an objection under section 53 of the Immigration Ordinance was to freeze all action in relation to the relevant case pending the determination of the Governor in Council, but that pending that determination the person lodging the objection had no right to land or remain in Hong Kong.  Indeed that is that effect of section 53(7) of the Ordinance.

14. At the meeting on the 24^th December Mr. Midgley informed the officers that a High Court action had been begun against the applicant and asked whether the Director would entertain his client’s application for an extension of stay if the objection under section 53 were withdrawn.  The matter rested there for the time being.  The Immigration Department sought the advice of the Legal Department regarding the applicant’s undertaking.  Before any formal advice could be obtained the applicant’s solicitors applied on his behalf by a letter dated the 27^th December for an extension of the applicant’s stay.

15. The letter was expressed to apply for an extension of the applicant’s current visitor’s visa.  It went at some length into the circumstances relating to the prosecution of the applicant and the Hong Kong company under section 7(1)(a) of the Gambling Ordinance, contending that there had been an unintentional and technical breach of the law.  Referring to the business of the Hong Kong company, the applicant’s solicitors mentioned that “At one time client had hoped to re-structure the business to eliminate the technical defect” but asserted that as his work visa had recently been refused they were instructed that he “has no future plans for the business other than its disposal”.

16. After reference to the applicant’s undertaking given on his return to Hong Kong on the 9^th December and the subsequent letter from his solicitors dated the 15^th December regarding the objection under section 53 and the then proposed application for extension of stay the applicant’s solicitors asserted that notwithstanding the “appeal” under section 53 their client’s position regarding extension of stay was then so serious that they were instructed to present the application for an extension of stay in any event.

17. There followed a reference to the writ issued in the 3^rd December and served on the applicant and his co-defendants and to the Mareva injunction granted on the 2^nd December.  The substance of the reasons for the application for an extension of the applicant’s stay as a visitor to Hong Kong is set out in the rest of the letter in the following terms :-

“The legal position brought about as a consequences (sic) of this action are complicated and technical, and we do not think it will assist to delve into the detail here.

However, you will gain an insight into the degree of activity involved with this matter when we say that between 5^th December 1986 and 23^rd December 1986, the said legal matter has resulted in four Court appearances and many hours of legal preparation, and without Mr Flickinger’s presence this would have been impossible.

Retained Counsel, Mr. Repert Spicer, advises that further Court appearances will be necessary during January and/or February 1987, requiring Mr Flickinger’s presence.  You will understand that client finds himself in a very exceptional position as a person visiting Hong Kong .  It is not a position of his choosing, but it is we submit, essential for the administration of justice generally, and to prevent damage being occasioned by neglect that Mr Flickinger been (sic) granted permission to remain in Hong Kong sufficient long to enable him to discharge his obligations as a Defendant in this action.

It is on this basis we request that you give favourable consideration to our client’s application for an extension of stay  in Hong Kong.”

18. By a letter dated the 6^th January 1987 the applicant’s solicitors withdrew the applicant’s “appeal” under section 53 of the Ordinance in order to enable the Director to consider the applicant’s application for an extension of his stay as a visitor.

19. On the 7^th January 1987 the applicant, accompanied by a Mr. Thomas, a partner in a firm trading in Hong Kong as Rogers and Thomas, went to the Immigration Department and applied for permission to work in Hong Kong as a computer technical consultant for Rogers and Thomas.  At some time between the 7^th and the 14^th January 1987 the applicant submitted  a written statement to the Immigration Department in which, amongst other matters relating to this application, he explained that the application was being made while he was in Hong Kong as a visitor because Mr. Thomas had offered him “a job” during “this visit” and wanted the applicant to submit his application while he was in Hong Kong in case there would be any problems.

20. By a letter dated the 13^th January 1987 the Director refused the applicant’s application for extension of his stay as a visitor made by the applicant’s solicitors’ letter dated the 27^th December 2986.  The applicant’s application made on the 7^th January 1987 for change of status to permit his being employed in Hong Kong was reused by a letter from the Director dated the 14^th January 1987 which informed the applicant that he was permitted to remain in Hong Kong up to the 19^th January 1987 and that he was required to leave Hong Kong on or before that date.

21. On the 19^th January 1987 Addison J. granted leave to the applicant under Order 53 rule 3 to apply for an order of certiorari quashing both the above mentioned orders of refusal made by the director.  The same order was expressed to stay “all proceedings” to which the application related.  We were informed by Mr. Whaley, counsel for the respondent, that this direction for a stay was made pursuant to O.53 rule 3(10)(a).  We emphasise that no issue was raised below or on appeal regarding the validity of such an order tin relation to the relevant powers of the Director under the Immigration Ordinance, nor was any issue raised below or on appeal regarding the validity of a similar stay ordered below by the judge pending this appeal.

22. After the applicant’s notice of motion for judicial review had been served on the 27^th January 1987 the respondent applied by a summons dated the 16^th February to set aside the ex parte order of Addison J. and strike out the applicant’s notice of motion.  This application was dismissed by Mortimer J. on the 2^nd March 1987.

23. The Director’s letter dated the 13^th January 1987 gave no reasons for his decision to refuse to extend the stay of the applicant as a visitor.  However in the course of the proceedings below the reasons for the Director’s decision were given in an affirmation made by Peggy Dee, an acting Principal Immigration Officer and filed in answer to the evidence initially filed in support of the application for judicial review.  The reasons were as follows :-

“18. After careful consideration, the Director of Immigration decided to refuse Mr. Flickinger’s application for extension of stay on the following grounds :-

(a)                Mr. Flickinger was allowed to enter Hong Kong as a visitor for a limited stay in good faith.  However, 6 days after his arrival, he applied for extension of stay.  On the other hand, he had also applied for permission to work in Hong Hong.  It would appear that he had every intention to settle in Hong Kong rather than stay on as a bona-fide visitor:

(b)               Insofar as the civil action was concerned, Mr. Flickinger had stayed in Hong Kong for over on month since his arrival on 9 December 1986.  He had been given sufficient time to instruct his counsel.  He could continue to give instructions to his counsel while he was abroad;

(c)                As regards the necessity for Mr. Flickinger’s continued presence in Hong Kong, since the mater could drag on for a long time, it was not desirable to keep on granting extensions on this basis.  Mr. Flickinger could always apply for permission to return here to defend himself should the need arise; and

(d)               The Legal Department advised that refusal of the application at this stage would not be detrimental to justice being done in those proceedings.”

24. Numerous grounds for the application for certiorari were contained in the applicant’s statement lodged under Order 53 rule 3 in support of his application for leave to apply for orders of certiorari and mandamus.  However it seems that when the matter came before Penlington J. on the 2^nd April 1987 leading counsel for the for the applicant relied on two main grounds for certiorari in relation to the Director’s decision not to extend the applicant’s stay as a visitor, namely the Wednesbury principles (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation) (1) and procedural unfairness.

25. The main thrust of the argument below, in reliance upon Wednesbury principles, seems to have been that, having regard to the nature of the litigation and to the Mareva injunction faced by the applicant in Hong Kong, the refusal of the Director to permit him to stay in Hong Kong, in order to confer with his lawyers and to appear in court when necessary, was wholly unreasonable, particularly in the absence of inquiries of the applicant’s solicitors regarding the nature of the High Court action against the applicant.

26. As regards the other ground, namely procedural unfairness, the arguments appear to have been that the Director had unfairly allowed himself to be prejudiced against the applicant by the police in Hong Kong who had wrongly held his conviction under the Gambling Ordinance against him and had passed on to the Director vague adverse Interpol reports about the applicant, emanating from the United States of America and Australia, without giving him an opportunity to refute such reports as he claimed to have done by the evidence which was contained in his affidavits in these proceedings.

27. In resisting these contentions below on behalf of the respondent Mr. Whaley raised, among other arguments, the proposition, based on Schmidt v. Secretary of State for Home Affairs (2), that the Director did not have to give reasons for his decision and that the only ground on which the court could interfere was if it was satisfied that the Director had not acted fairly.

28. The judge who, in a careful reserved judgment, cited passages from the speeches of Lords Scarman and Wilberforce in Reg. v. Home Secretary, Exp. Khawaja (3) , clearly took the view that reasons having been given for the Director’s decisions, albeit during the proceedings for judicial review, those reasons were reviewable by the court in accordance with Wednesbury principles.  He appears to have rejected the contention that the applicant should have been given the opportunity to refute the adverse information about him given to the Director by the police.  He observed :-

“Clearly here there is no finding of fact for the Director of Immigration to come to.  It is not in any way disputed that the applicants an alien and has no right to land in Hong Kong.  The whole question therefore is whether the decisions which have been reached by the Director of Immigration to refuse to change the applicant’s immigration status in Hong Kong and to refuse him a further extension of his stay was based on the facts of this case so unreasonable that no authority bringing its mind to bear fairly on the question could have come to those decision.”

29. He went on to express his satisfaction that the applicant had been given every opportunity to present to the Director the relevant facts and background material upon which relied.  He further concluded, giving his reasons in some detail, that while the Director’s decision might, on the disclosed facts, have been harsh it was not one which could be said to be so unreasonable that it justified intervention by the court under Wednesbury principles.

30. At the hearing of the appeal Mr. Bunting, counsel for the applicant, was given leave, after making an unopposed application, to amend the grounds of appeal so as to abandon the appeal regarding the Director’s refusal to permit the applicant to take employment in Hong Kong and to introduce a substantial number of new grounds.  Indeed the main argument advanced at the hearing of the appeal had not been presented to the judge below by the applicant’s leading counsel.

31. Mr. Bunting’s written submissions were presented on the footing that in the light of the decisions  of the House of Lards in the Khawaja Case ⁽³⁾ and in Reg. v. Home Secretary Exp. Bugdaycay (4) the judge was right in concluding that the Director’s decision on the application for extension of the applicant’s stay as a visitor in Hong Kong was open to challenge under Wednesbury principles.  It became apparent during Mr. Whaley’s submissions that he did not accept this proposition and sought to contend inter alias, in reliance on Schmidt’s Case ⁽²⁾ that the Wednesbury principles could not be invoked to review the Director’s decision.

32. No respondent’s notice had been served to raise this contention, but once it had been clearly adumbrated Mr. Bunting took no objection.  However, while we express no opinion as to the position had the Director continued to give no reasons, we have always understood the law to be that, even where no reasons are required, once they are given they may be reviewed by the court.  We do not seem to be alone in this opinon : see R. v. Immigration Appeal Tribunal, ex parte Bastiampillai (5) at p. 852 b-j : de Smith’s Judicial Review of Administrative Action (4^th edition) at p.148.

33. Mr. Bunting prefaced his argument by saying that his primary contention was that the court should look only at the grounds contained in paragraph 18 of Peggy Dee’s affirmation although that affirmation contained reference to earlier adverse police reports concerning the applicant and Peggy Dee had affirmed that the relevant decision of the Director was taken after careful consideration of the full facts of the case and all available information.

34. We agree that the grounds of the decision are only to be found within paragraph 18 of Peggy Dee’s affirmation.  Although the grounds set out in that paragraph have to be considered in the context of the factual matrix in which they were given, those grounds provide the only reasons for the Director’s decision.  If the reasons are so unreasonable as to bring about a decision which is itself so unreasonable in all the circumstances that no reasonable authority could ever have come to it, then  the decision should be quashed in accordance with Wednesbury principles.

35. The main thrust of Mr. Bunting’s argument was directed at paragraph 18(a) of Peggy Dee’s affirmation which he contended was the principal ground because it was the first stated.  The argument went along the following lines.  The Director had drawn the inference that the applicant did not intend to stay on as a bona fide visitor but intended to settle, in the sense of making his home, in Hong Kong.  These were not legitimate inferences and they were based on two facts, namely (1) the applicant’s application for an extension of stay made six days after his arrival and (2) his application for permission to work in Hong Kong.

36. The letter dated the 15^th December 1986 from the applicant’s solicitors was not, it was argued, an application for an extension of stay but an appeal against the applicant’s undertaking not to make such an application.  The timing of that application was explained in the letter by reference to “circumstances” having “become apparent” making it imperative for the applicant to be permitted an extension of stay.  The letter did not actually refer to the legal proceedings but, as the applicant had deposed below, the reason for the objection under section 53 and the subsequent application on the 27^th December 1986 for an extension of stay was the need for the applicant to be present for the legal proceedings which had resulted in four court appearances between the 5^th and the 23^rd December 1986.

37. It was argued that no reasonable decision making authority would have concluded that the applicant was an intending settler from the two facts on which the inference was based and it was stressed that the fact that a person would like to be employed here does not raise the inference that he is not a visitor.  It was also contended that having once, unreasonably, concluded that the applicant was an intended settler it was difficult to see how the Director could have properly granted him an extension of stay as a visitor.

38. We consider that these arguments have no substance.  They depend very substantially on the effect of the use of the word “settle” in paragraph 18(a) of Peggy Dee’s affirmation.  In judgment the sub-paragraph is not to be construed as if it were a statute.  Its broad meaning is abundantly clear to us, namely that the Director did not accept that the applicant was genuinely intending to stay on in Hong Kong as a visitor if he were granted an extension in that capacity.  He was not surprisingly dubious about the so called appeal on the 15^th December 1986 against the undertaking of the 9^th December 1986 which was clearly foreshadowing an application for an extension of stay beyond the 9^th January 1987.

39. No mention had been made by the applicant on the 9^th December 1986 to any immigration officer about his litigation in Hong Kong, although in his affidavit in support of his application for certiorari he deposed that he knew about the action by that date and that it appeared to him to be helpful to clear up the matter.  On the same date he had told the immigration officers that his purpose in coming to Hong Kong was to clear up his business and to sell his properties and also to meet the parents of his girl friend who were on the way to Hong Kong.

40. This was a man who had earlier in the same year been given permission to stay for six months to run his own business through the Hong Kong company and who had bought a house for $5.4 million and a car for $520,000 through his companies.  He had been refused an extension of permission to stay and continue his business activities.  The evidence of Peggy Dee was that it was in view of his assurance that he would not establish business in Hong Kong that he was permitted to remain as a visitor until the 9^th January 1987, albeit after being required to sign an undertaking that he would not apply for an extension of stay.

41. Against this background the applicant’s application on the 7^th January 1987 for permission to take up employment as a computer technical consultant with the firm of Rogers and Thomas clearly manifested a more settled purpose than that of a mere visitor.  Moreover, in a statement furnished to the Director he had referred to an unspecified “contract period” and to his having been offered a “job” by Mr. Thomas.

42. The position by the time the Director came to make his decision on both the applications of the applicant was that whereas he had claimed on arrival on the 9^th December 1986 that he intended to clear up his business and to sell his properties and to meet his girl friend and her parents, his intentions, if they could e implemented with the Director’s permission, had undoubtedly extended to include obtaining permission to stay in Hong Kong for the purpose of taking up employment.

43. We accept Mr. Bunting’s submission that the applicant’s applications for a visitor’s extension and for permission to stay and take up employment are not in themselves inconsistent, but the making of the latter application clearly manifested an enlargement of the intentions of the applicant as expressed by him to the immigration authorities on the 9^th December and by his solicitors in their letters dated the 15^th and 27^th December 1986.  Furthermore Regulation 2(1) and (4) of the Immigration Regulations demonstrate that different considerations arise when a visitor seeks permission to stay in Hong Kong for purposes of employment or business.

44. The fact that the applicant’s evidence now is that he never intended to settle here in the sense of taking up permanent residence does not, in my judgment, render the conclusion of the Director as expressed in paragraph 18(a) of Peggy Dee’s affirmation irrational or wholly unreasonable by Wednesbury standards.  On the contrary, it seems to me to be a fair and reasonable conclusion in all the circumstances and we do not consider that the use of the word “settle” in its context should be construed so as to render the Director’s decision irrational.

45. Having rejected the corner stone of Mr. Bunting’s argument, we can see no substance in the remainder of his submissions.  He acknowledged that his argument that grounds (b) to (d) contained in paragraph 18 of Peggy Dee’s affirmation were coloured by the Director’s conclusion contained in paragraph 18(a) of that affirmation that the applicant intended to settle in Hong Kong, and that the applicant should have been given an opportunity to rebut such a conclusion, depended on the acceptance of his argument that the conclusion in paragraph 18(a) was wholly unreasonable.  The latter argument having been rejected, it follows that the edifice thereafter founded upon that argument has no sound foundation.

46. Mr. Bunting rightly accepted that, subject to any direction given by the Governor under section 51 or by the Director under section 52, section 11(5A)(c) of the Immigration Ordinance conferred a wide discretion on an immigration officer to enlarge the period during which the applicant might remain in Hong Kong.  However he contended that in so far as the refusal to grant the extension was for the reasons contained in paragraph 18(b),(c) and (d) of Peggy Dee’s affirmation, the Director had wrongly applied a test of necessity because (1) he had wrongly concluded that the applicant really intended to settle in Hong Kong rather than prolong a visit, or (2) the Director has misdirected himself as to his powers under section 11(5A)(c) in supposing that extensions should not be granted unless they were necessary.

47. The first of these arguments necessarily fails with the rejection of the earlier contentions regarding the reasonabless of the ground contained in paragraph 18(a) of Peggy Dee’s affirmation.  The second argument is clearly of no substance.  The whole basis of the application for an extension of stay as submitted in the applicant’s solicitors’ letter dated 27^th December 1986 was, and was only, that it was essential for the administration of justice generally and to prevent injury to his interests that he should be granted permission to remain in Hong Kong sufficiently long to defend the action which had been brought against him.

48. In our judgment it is wholly unreasonable to suggest that, in forming a view regarding the stated basis of the application to remain beyond the 9^th January 1987 in Hong Kong, the Director somehow misled himself regarding the exercise of his undoubtedly discretionary powers.  If and so far as it can be said that the Director impliedly decided that the applicant should not be given an extension of stay unless it was necessary for him to remain in Hong Kong such a decision was clearly within the Director’s discretionary powers.

49. Paragraph 18(b), (c) and (d) were attacked on other grounds.  It was said that, in concluding that the applicant could always apply for permission to return to Hong Kong to defend the action should the need arise, the Director failed to take into account that on the 9^th December 1986 an immigration officer had informed the applicant that in future he would need a fresh visa every time he wished to visit Hong Kong, and that he should allow two months for each visa application to be processed.  However the statement of the immigration officer has to be considered in the light of the fact that no reference had been made by the applicant to the immigration officer on the 9^th December 1986 concerning the involvement of the applicant in litigation in Hong Kong.  It is implicit from the Director’s reasons in paragraph 18(c) of Peggy Dee’s affirmation that an urgent application would be entertained.

50. It was further contended that the advice given to the Director by the Legal Department was irrelevant because that Department, which had made no inquiries of the applicant’s solicitors, was in no position to know what the interests of justice required in the action in question.  In our judgment it was reasonable for the Legal Department to advise on the information given them by the Director who was under no obligation to invite further representations from the applicant’s solicitors or to act on their opinion regarding the need for the applicant’s presence in Hong Kong.  Indeed, there having been no steps in the action since the 23^rd December 1986, it is difficult to envisage what relevant information the applicant’s solicitors could have provided to substantiate a case for the continued presence of the applicant in Hong Kong after the 9^th January 1987.

51. Mr. Bunting contended that if and so far as the Director arrived at his decision to refuse an extension of stay in reliance on background information obtained by him from the police prior to the making of the application for an extension, then he had relied on matter which was irrelevant and which the applicant should have been given an opportunity to rebut.  However we understood these contentions to have been relied upon only if the Director’s grounds for decision were held not to have been confined to those stated in paragraph 18 of Peggy Dee’s affirmation.  As already indicated above, we consider that the reasons for the Director’s decision are confined to paragraph 18 and are not to be attributed to the background information in question.

52. Furthermore the judge was, in any event, clearly right in rejecting the argument below based on In re H.K. (An Infant) (6) and Reg. v. Gaming Board, ex parte Benaim (7) to the effect that the applicant should have been given the opportunity to refute the adverse information given to the Director by the police.  This was not a case where the decision making authority was concerned to make a decision by applying or interpreting statutory definitions or guidelines nor was there any precedent fact to be determined by the Director.

53. In exercising his discretionary powers under section 11(5A) (c) of the Immigration Ordinance the Director may make such inquiries as he thinks fit.  The applicant has no right, nor in the circumstances of this case did he have any legitimate expectation, to be told about the results of the Director’s inquiries or to be allowed to rebut the information obtained by the Director concerning the applicant.

54. In exercising his discretionary powers under section 11(5A) (c) of the Immigration Ordinance the Director may make such inquiries as he thinks fit.  The applicant had no right, nor in the circumstances of this case did he have any legitimate expectation, to be told about the results of the Director’s inquiries or to be allowed to rebut the information obtained by the director concerning the applicant.

55. In our judgment the situation is covered by the dicta of Lord Denning in Schmidt’s Case ⁽²⁾ at pp.170 B-C to 171 C and by the principles applied by Megarry V.C. in McInnes v. Onslow-Fans (8)at pp.1531 H to 1532 D when distinguishing the case before him from In re H.K. (An Infant) ⁽⁶⁾ and from the Gaming Board Case ⁽⁷⁾.  We can find nothing in the subsequent decisions of the House of Lords in the cases of Khawaja ⁽³⁾ or Bugdaycay ⁽⁴⁾ that is in any way inconsistent with these views.

56. Accordingly we dismiss this appeal and we make an order nisi that the respondent is to have its costs of the appeal.  We add that even if the decision of the Director could have been faulted on review it seems to us to be inconceivable that the judge below could have exercised his discretion to grant orders of certiorari or mandamus when, as Mr. Bunting conceded before this court, the alleged need for the presence of the applicant in Hong Kong for the purposes of the action had ceased by the time the matter came before the judge on the 2^nd April 1987.  Indeed by the 9^th March 1987, there having been no step in the action since the 23^rd December 1986 and no service of a statement of claim, the applicant was reduced to deposing as follows:-

“In short, the problem is, that if the plaintiff chooses to prosecute the action vigorously, then my presence will be required in Hong Kong constantly for the foreseeable future.  I am so advised of this by my legal advisors (sic).”

57. This we regard as an evasive way of saying that the action had gone to sleep.

58. Finally, we draw attention to the fact that affidavit evidence has been filed on behalf of the applicant which is flagrantly in breach of Order 41 rule 5(1) of the Rules of the Supreme Court which provides that, subject to certain exceptions not applicable here, affidavit evidence is to contain only such facts as the deponent is able of his own knowledge to prove.  The applicant’s affidavit filed on the 9^th March 1987 contains much objectionable hearsay and much exposition of the views of his solicitor on forensic matters.  Such matter should not be included in affidavits.  Failure to comply with Order 41 rule 5(1) also leads to unnecessary prolixity.  Order 41 rule 6 provides the remedy for such irregularities and disallowance of costs may also be appropriate.

59. In making these observations we respectfully adopt what was said by Fuad J.A. in Nelson Delivery Service Limited v. Wong Kan & Ors. (9) citing the dicta of Roskill L.J. in Alfred Dunhill Limited v. Sunoptic S.A. (10)