RE TSE CHUK FUK

HEADNOTE

A removal order under the Immigration Ordinance, Cap.115, was made against the applicant on 12th January 1987. He appealed to the immigration tribunal. On 18th February 1987 the tribunal dismissed his appeal. It did not give reasons for its decision nor did it state the facts as it found them when dismissing the appeal. The applicant complained that the decision was unreasonable, and sought a judicial review.

HELD:

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is an application for judicial review made pursuant to leave granted by Mr. Justice Mayo on 19th March 1987. The applicant claims to be one Tse Chuk Fuk, born in Hong Kong on the 20th October 1953. He says that in March 1957 he was taken by his parents back to China; there they were detained and there they died, his father in 1966 and his mother in 1974. He was brought up by kinsmen in Guangzhou. He came back to Hong Kong on 17th November 1985, returning, as his counsel picturesquely put it, "over the mountains." He applied to the immigration authorities here for permission to stay in Hong Kong. This was granted pending investigations; but ultimately a Removal Order against the applicant was made on 12th January 1987. He appealed to an Immigration Tribunal. His appeal was dismissed on the 18th February 1987. The Tribunal did not give then and has not given since any reasons for its decision, nor stated the findings of fact on which it reached that decision. The applicant complains that the decision was unreasonable on the evidence.

2. Before I turn to the merits of the application, I should, I think, indicate what is in my view the proper approach to it. This is an application for judicial review and not an appeal. Now the proper purpose of a judicial review was explained by Lord Brightman in Chief Constable v. Evans [1982] .3 All E R. 141 (at page 154) in these words:

"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

3. It is by now well settled that on judicial review the Court will intervene only on the grounds of illegality, irrationality or procedural impropriety on the part of the decision maker whose determination is challenged. (These grounds were re-stated recently in England by Sir John Donaldson M.R. in R. v. The Secretary of the State, ex parte Swati [1986] 1 All E R. 717 at page 721, itself an immigration case.)

4. What is meant by "illegality, irrationality, or procedural impropriety?" First, illegality. If the decision was made upon a mistaken view as to the law or its application then it is open to be quashed on that ground. Second, irrationality. This is a reference to what is often called the Wednesbury principle; see Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1947] 2 All E R. 680. In order to come within this head, the decision must be such that no sensible person who had properly applied his mind to the question to be decided could have arrived at that decision. Third, procedural impropriety. This is concerned with the way in which the decision is reached. Among other possible procedural improprieties may be those which affect the notice given to the applicant of the decision reached. If it is inadequate, that may be a relevant procedural impropriety because it may operate to deprive him of the information he needs to form a view as to whether the decision is open to challenge on one or the other or both of the other two grounds.

5. In this connection, I derive assistance from R. v. Lancashire County Council [1986] 2 All E R. 941. This was a case in which the challenge made by the applicant to the decision was concerned with the want of proper reasons given to the applicant for the decision reached.

6. The Master of the Rolls said this (at page 945):

"With very few exceptions, all public authorities conscientiously seek to discharge their duties strictly in accordance with public law and in general they succeed. But it must be recognized that complete success by all authorities at all times is a quite unattainable goal. Errors will occur despite the best of endeavours. The courts, for their part, must and do respect the fact that it is not for them to intervene in the administrative field, unless there is a reason to inquire whether a particular authority has been successful in its endeavours. The Courts must and do recognize that where errors have, or are alleged to have, occurred, it by no means follows that the authority is to be criticized."

7. Sir George Waller, agreeing, said this (at p.947):

"I agree that this appeal should be dismissed. I do not wish to add anything concerning the reasons we should be given by an authority to justify its decision because it seems to me that the facts of each case and of each decision vary so much..... The important matter in every case where judicial review is granted is to make clear that all relevant facts have been considered, but this may not always require them all to be specified."

8. It is against that background that I approach the present case; but before returning to the facts, I propose to examine the statutory framework.

9. The Immigration Ordinance, Cap.115 provides the code by which the matters which call for a review in this case are regulated.

10. I start with Section 8(1), which provides that "Hong Kong belongers" have the right to land in Hong Kong.(It is common ground that if the applicant was born in Hong Kong, as he claims, he is for this purpose a "Hong Kong belonger" and is thus entitled to the right to land conferred by Section 8(1). The issue is whether the applicant is in truth the person he claims to be.)

11. Section 19 confers on the immigration authorities the power to make a removal order; and, under Section 19(1) (b) (ii), a person who has landed in Hong Kong unlawfully is liable to have a removal order made against him. The case for the Crown is that the applicant here is such a person and that the removal order in the present case was properly made. The Crown accepts that if the applicant is the person he claims to be, and is accordingly a Hong Kong belonger, he is not liable to such a removal order; for Section 19(2) provides that a removal order shall not be made under Section 19(1) (b) (ii) against a person who has the right to land in Hong Kong by virtue of Section 8(1).

12. Section 53 is concerned with the review of decisions of immigration officers. Section 53A provides a right of appeal to an immigration tribunal and so, in accordance with the usual practice, the Court will not encourage applications in immigration cases by way of judicial review, there being already in place a statutory provision for appeals. Unless, for some special reason, the appeals procedure is inapplicable or has failed, the right to apply for a judicial review is not to be regarded as a right of further appeal from the decision of an immigration tribunal. This is underlined in Section 53(2) which provides for the decisions of an immigration tribunal to be "final"

13. The machinery provided by Section 53A is as follows:-

14. Section 53D provides that on an appeal under Section 53A against a removal order where the Tribunal determines that, on the facts of the case as it finds them (my emphasis), the appellant does not have the right to land in Hong Kong under Section 8(1), it shall dismiss the appeal; but in any other case, it shall allow the appeal and rescind the removal order.

15. The reference made in the section to "the facts of the case as it finds them" suggests, to my mind, that any person whose appeal is rejected by the Tribunal is entitled to know what are the facts of the case which have been found by the Tribunal. If he does not know what are the facts of the case as found by the Tribunal, he is in no position even to consider whether or not the decision of the Tribunal can be challenged.

16. The point has been adverted to by Mr. Justice Silke, sitting as a Justice of Appeal, in Cheung Cheong v. Attorney General ,Civil Appeal 1986 No. 122 (unreported). What the Justice of Appeal said in that case was obiter dictum, but that does not deprive it of its value as exhibiting good sense and good reason.

17. In the concluding passage of his judgment, Mr. Justice Silke said:

"I would only wish to add this. The right of appeal conferred by Section 53A of the Immigration Ordinance, Cap.115 is a restricted one. The burden of proof is placed squarely upon an appellant. That appellant must lodge his notice of appeal setting up the grounds upon which he relies within 24 hours of his being informed of a removal order having been made........ the Tribunal is enjoined by Section 53D(1) (a) to find facts, for it determines the appeal "on the facts of the case as it finds them". It would seem that the practice has grown up of using a proforma "Reasons for Decision" wherein such facts as are found by the Tribunal are not set out. For myself, I would have thought it to be the duty of the Tribunal to, at least shortly, set out the actual facts which it finds and upon which it bases its determination. These matters affect the liberty of the individual and a man is entitled to know upon what basis the Tribunal finds against him."

18. I entirely and respectfully agree. As will be seen, this will be the ratio decidendi of my judgment in the present case. In my judgment, a man is entitled to know upon what basis the Tribunal finds against him, so as to enable him make an informed judgment on the question whether or not he has a proper ground for an application to the Court for a review of the tribunal's decision.

19. In the present case, to the facts of which I now return, the applicant gave evidence before the Tribunal. He produced a Birth Certificate relating to the birth of Tse Chuk Fuk. He claimed to be himself Tse Chuk Fuk and so the rightful holder of that certificate; but, as it seems to me, mere production of a birth certificate is not in itself proof that the person who produces it is the person to whom it refers.

20. The applicant also produced a certificate purporting to show that he was a person who attended college in China from 1967 to 1970. This certificate was dated 28th September 1985. It is accordingly 15 years later in date than the events to which it relates. It does, however, bear a photograph, which is I understand is accepted on both sides as being a photograph of the applicant, with a chop indicating that the college accepted the applicant as the person to whom this certificate related. I am told there was no cross-examination to suggest it was wrongfully obtained and Mr. Fleming for the Attorney General did not suggest that it was. He did, however, in what I thought was a telling phrase, suggest that the evidence was self-serving; having regard to the distance in time between the date of the events to which it relates and the date of the certificate itself, this seems to me an apt description. Nevertheless, the question whether or not it ought to be accepted as authentic is a matter for the tribunal.

21. The applicant further produced an identity certificate issued in China bearing his photograph and two chops, but again it was a matter for the tribunal to decide what weight, if any, to attach to it.

22. Lastly, the applicant produced a work permit for one Tse Kwok Ming. It is the case for the Crown, supported by a report from the Chinese authorities, that the applicant himself is Tse Kwok Ming. The permit bears a chop of a company in the People's Republic of China, and refers to a person whose (attached) photograph is very different from that of the applicant. It is at least some evidence that the applicant is not Tse Kwok Ming. However, even that is a matter for the tribunal.

23. It does seem clear that the tribunal must have rejected not only the applicant's oral evidence but also the evidence of these documents. It did so, however, without giving reasons. And it has produced nothing which would have enabled the applicant to come to a conclusion as to why it was the case was decided against him. The report from the People's Republic of China was presumably accepted by the tribunal: but even this is nowhere stated.

24. The report bears no letterhead or chop, but it is accepted by the applicant as authentic. In that report, a photograph of the applicant is said is to be a photograph of Tse Kwok Ming; and it is said that Tse Kwok Ming is usurping the Hong Kong Birth Certificate of Tse Chuk Fuk.

25. Counsel for the applicant has criticized the report on several grounds. But the tribunal has to evaluate the report for itself. What value should be put upon it is a matter entirely for the tribunal and not for me.

26. Although I confess to some doubt as to whether I would have arrived at the same conclusion as the tribunal on the evidence which I have seen, I am not prepared to find that that conclusion is on the face of it so surprising as to be a decision to which no reasonable tribunal could have come. But, as I have already indicated, the matter does not rest there.

27. On 5th March 1987 the solicitors for the applicant asked the tribunal to furnish them with its "reasons of judgment." On 10th March 1987, the Attorney General replied as follows:-

"Under Section 53A and Section 53D of the Immigration Ordinance, Cap.115, the function of the Immigration Tribunal is only confined to the determination whether an appellant has the right to land in Hong Kong or permission of the Director of Immigration to remain in Hong Kong. The Tribunal has on this basis determined your client's appeal and your clerk notified of the determination thereof. You would appreciate that the Tribunal is not obliged under the said provisions to set out further reasons for the determination and it is regretted that your requests cannot be complied with."

28. On 12th March 1987, the applicant's solicitor replied to the Attorney General, quoting the dictum of Mr. Justice Silke which I already read. On the same day the Attorney General wrote in the following terms to the applicant's solicitors:

"I have considered the passage you quoted from Cheung Cheong's case and regret to say that I do not agree that Mr. Justice Silke did actually lay down or suggest that there is a rule of law that it is mandatory for the tribunal to give further reasons for its determination."

29. In my judgment, it is not the failure to give reasons, but the failure to state "the facts of the case as it finds them", something which, in my judgment, is required by Section 53D, which is objectionable in the instant case.

30. I agree with the dictum of Mr. Justice Silke and I found my decision in the present case upon it. I am quite satisfied that the immigration authorities, the tribunal and the Attorney General have all done exactly what they thought was in the best interests of good administration in what is a difficult and sensitive area, and I criticize none of them. The conduct of this case by the Attorney General in this Court has been exemplary. Nothing has been hidden and every assistance has been given to the applicant. That said, I remain satisfied that it was a failure in the procedure for the tribunal not to state the facts as they were found by the tribunal in arriving at its decision. For those reasons, I hold this present application succeeds.

31. Mr. Fleming accepted that in these circumstances the most convenient cause would be to remit the case to the Tribunal to rehear the case, and to state the facts as they find them, in accordance with the indication given by this Court; when that has been done, the applicant will be in a position to judge whether or not he has any grounds for complaint which would lead him to make a second application for judicial review. I have no reason whatever to think that he will succeed on the re-hearing (about which I express no view at all) nor have I any reason to think that, if he fails, he would in fact have any ground for a second application for a judicial review. I simply say that, like Mr. Justice Silke, I am offended by the thought that when a matter affects the liberty of the individual, the man against whom the decision is made is to be left not knowing upon what basis the tribunal finds against him.

32. The ground upon which leave to apply for a Judicial Review was given, and the ground which was maintained in the forefront of his argument by Mr. Wong for the applicant, was that the decision of the Tribunal was one to which no reasonable tribunal could have come. I have found against the applicant on that point. The point upon which he has succeeded was a point which arose during the course of the argument, when Mr. Wong for the applicant intimated to me that he proposed to use the point to support his argument generally and not as a separate, substantive, ground. Mr. Fleming, with his usual perspicuity, had seen the problem that might arise here, and had made an attempt before the hearing to tie Counsel for the applicant down on the question whether this point was to be taken as a separate substantive point. He got the answer that it was not, and it was only after some considerable encouragement from me (in the interests of justice to the applicant) that Counsel for the applicant asked me for leave to amend so as to take this point. Very properly and helpfully, Mr. Fleming took no objection. In these circumstances, Mr. Fleming contends that it would be unfair to make the Attorney General pay the costs of this successful application. There is much force in Mr. Fleming's contention. But no additional costs have been incurred. All that has happened is that the applicant has succeeded on a different point from that which he originally took. In these circumstances, I see no sufficient reason to depart from the usual rule that costs should follow the event. I decree accordingly, and the applicant will have his costs against the Attorney General.