HARJIT KAUR AND ANOTHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 232/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 232 OF 2000

(ON APPEAL FROM HCAL NO. 47 OF 1999)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. The Applicants are two sisters. They came to Hong Kong from India in 1998. They were permitted to remain in Hong Kong as visitors. They wished to change their immigration status to enable them to live in Hong Kong as dependants of their mother. The Director of Immigration refused that application. His decision was confirmed by the Secretary for Security. The Applicants applied for leave to apply for judicial review of those decisions.

2. On the substantive hearing of the application, Stone J dismissed the application relating to the decision of the Director of Immigration, but he granted the application relating to the decision of the Secretary for Security. He quashed the Secretary for Security's confirmation of the decision of the Director of Immigration. The Secretary for Security now appeals to the Court of Appeal, contending that her confirmation of the decision of the Director of Immigration should be restored. At the conclusion of the hearing, we dismissed the appeal, but said that we would reduce our reasons into writing. That we now do.

The facts

3. The facts were not in dispute. The Applicants, Harjit and Gurjeet Kaur, were born in India in October 1983 and November 1981 respectively. When their parents divorced in 1996, it was agreed that they would live with their mother, Mohinder Kaur, who would be responsible for maintaining them. Later in 1996, Madam Kaur came to Hong Kong to join her father, who had been born in Hong Kong and was a Hong Kong permanent resident. Before she left India, she had entrusted the care of the Applicants to a relative. Although her immigration status on her arrival in Hong Kong had been that of a visitor, that status was subsequently changed to enable her to live in Hong Kong as a dependant of her father. She was therefore permitted to remain in Hong Kong until August 2001.

4. In view of the age of the relative who was looking after the Applicants, Madam Kaur arranged for the Applicants to come to Hong Kong. They arrived in Hong Kong on 7 August 1998. They were permitted to remain as visitors. However, six days later they applied for a change in their immigration status to enable them to live in Hong Kong as dependants of their mother. At that time, the policy of the Immigration Department was to permit persons under the age of 21 to remain in Hong Kong as dependants of a parent already resident in Hong Kong only if that parent was able to support them financially and to provide suitable accommodation for them. The Director of Immigration concluded that Madam Kaur was not able to support them financially or to provide suitable accommodation for them. Accordingly, by a letter dated 3 December 1998, they were informed that their application for a change in their immigration status had been refused, and their permission to remain in Hong Kong as visitors was extended only to 10 December 1998. That was the first decision challenged, and there is no appeal by the Applicants from Stone J's dismissal of that application.

5. On 9 December 1998, the Applicants wrote to the Chief Secretary for Administration. The nature of this letter is critical to the outcome of this appeal, but in essence they were objecting to the decision of the Director of Immigration. After some correspondence, the letter was treated as a petition to the Chief Executive, who through the Chief Secretary delegated the consideration of that petition to the Secretary for Security.

6. Before reaching a decision on the petition, the Secretary for Security considered a lengthy memorandum dated 8 March 1999 prepared by the Director of Immigration relating to the Applicants. Annexed to it were all the relevant documents. The memorandum contained detailed comments on the Applicants' case and expressed the view that the petition should be rejected. A copy of it was not sent to the Applicants. The Secretary for Security agreed with the view expressed in the memorandum. Accordingly, by a letter dated 17 March 1999, the Applicants were informed that the Secretary for Security had decided to uphold the decision of the Director of Immigration to refuse their application for a change in their immigration status. That was the second decision challenged, and that was the decision which Stone J quashed. The Secretary for Security is appealing against the quashing of that decision.

7. On 29 March 1999, the Applicants submitted a petition to the Chief Executive. They asked for permission to remain in Hong Kong on compassionate and humanitarian grounds. The Chief Executive delegated the consideration of the petition to the Chief Secretary. By a letter dated 11 November 1999, the Applicants were informed that the Chief Secretary had decided to uphold the decisions of the Director of Immigration and the Secretary for Security to refuse their application for a change in their immigration status. That decision was made after the Applicants had applied for leave to apply for judicial review of the earlier decisions.

Challenging the original decision

8. Leaving aside an application to the court for leave to apply for judicial review, there were two routes by which the Applicants could have challenged the original decision of the Director of Immigration refusing to change their immigration status. The first was to apply for a review of that decision pursuant to section 53 of the Immigration Ordinance (Cap. 115) ("the Ordinance"). Section 53(1) provides (so far as is material):

The time prescribed by section 53(2) in the case of the Applicants was 14 days from the date on which they received the letter of 3 December 1998. Section 53(3) provides that that objection had to be considered by the Chief Executive in Council, and section 53(4) gave the Chief Executive in Council the power to "confirm, vary or reverse the decision ... of the public officer or substitute therefor such other decision or make such order as he thinks fit". The duty of the Chief Executive in Council to review the decision is not one which can be delegated.

9. The second route by which the Applicants could have challenged the original decision was to petition the Chief Executive pursuant to Art. 48(13) of the Basic Law, which empowers the Chief Executive "to handle petitions and complaints". This is the modern equivalent of reg. 168 of the Colonial Regulations which required the Governor "to consider and act upon" any "representations" made to him "on matters of a public or private nature". The power of the Chief Executive to handle petitions obviously includes a duty to consider them, but his duty to consider them can, so it is said, be delegated to the Chief Secretary and to the relevant policy secretaries, including the Secretary for Security. The Applicants' letter of 9 December 1998 challenging the original decision was treated as a petition to which Art. 48(13) applied rather than as an objection under section 53 of the Ordinance.

10. At the hearing of the application for judicial review, the Applicants contended that their letter of 9 December 1998 challenging the original decision amounted to an objection under section 53 of the Ordinance. If that was correct, they had been entitled to have the original decision reviewed by the Chief Executive in Council. As Mr William Marshall SC for the Secretary for Security accepted in the hearing before us, the reviews of the original decision by the Secretary for Security and then the Chief Secretary (acting under powers delegated to them by the Chief Executive) could not have been a permissible substitute for the Applicants' statutory right to have the original decision reviewed by the Chief Executive in Council pursuant to section 53 of the Ordinance. This argument had not been advanced in the Applicants' original grounds for applying for leave to apply for judicial review, but it was added by amendment at the hearing before Stone J. Thus, an additional decision challenged was the decision of the Chief Secretary not to treat the Applicants' letter of 9 December 1998 as an objection under section 53 of the Ordinance.

The approach of the judge

11. Stone J did not regard it as necessary to resolve this issue. He took the view that the failure to disclose the memorandum of 8 March 1999 to the Applicants rendered the Secretary for Security's consideration of the original decision by the Director of Immigration procedurally unfair. He quashed the Secretary for Security's confirmation of the original decision for that reason.

12. However, we think that the issue relating to the nature of the letter of 9 December 1998 had nevertheless to be addressed by Stone J. We say that for two reasons. First, if Stone J was right to quash the Secretary for Security's decision on the ground of procedural unfairness, the question still remained as to what was to happen to the "appeal" process. Should the correctness of the Director of Immigation's original decision be considered afresh by the Secretary for Security? Or should it be considered by the Chief Executive in Council? That depended on whether the letter of 9 December 1998 was invoking the statutory regime and therefore had to be dealt with in accordance with section 53 of the Ordinance, or whether the letter was simply a petition to which Art. 48(13) applied and which could be handled by the Secretary for Security pursuant to delegated powers. Secondly, if Stone J was wrong to quash the Secretary for Security's decision on the ground of procedural unfairness, that decision would nevertheless have been a nullity if the Applicants had, on a proper construction of the letter of 9 December 1998, been invoking the statutory procedure under section 53.

13. There is an additional reason why we think that the issue relating to the letter of 9 December 1998 should now be determined. The challenge which Mr Marshall mounted to Stone J's view on the effect of the failure to disclose the memorandum of 8 March 1999 was predicated on the premise that the Applicants had simply been petitioning the Chief Executive rather than exercising the right to a review under section 53. He did not abandon his contention that disclosure would not have been required even if the Applicants had been exercising the right to a review under section 53, but his arguments all proceeded on the assumption that the Applicants had not been doing that. If that assumption is incorrect, the point of principle which Mr Marshall was anxious to establish - and which was the reason why the Secretary for Security was appealing against the quashing of her decision - would become academic. That principle was that the duty to act fairly did not require the disclosure of briefing documents to the decision-maker when the decision-maker was engaged in a decision-making process which was not the creature of statute.

The nature of the letter of 9 December 1998

14. The letter of 9 December 1998 was addressed to the Chief Secretary. It began by referring to the application which the Applicants had made to the Director of Immigration for a change in their immigration status. It set out the two reasons why the Director of Immigration had refused the application, namely that he had not been satisfied that their mother was financially capable of supporting them or that suitable accommodation would be provided for them. The letter continued:

It then set out the grounds on which it was contended that the Director of Immigration's conclusions on the two issues on which he had expressed himself to be dissatisfied about were unreasonable and irrational. It added that further grounds would be given at a later stage. It concluded by requesting that the Director of Immigration's decision be reversed and that the Applicants be permitted to remain in Hong Kong as dependants of their mother.

15. It is true that this letter did not in terms refer to section 53 of the Ordinance, but in our view it is obvious that whoever drafted the letter had section 53 in mind. The letter reproduced the language of section 53 so closely as to make it obvious that the procedure under section 53 was being invoked. In particular, (a) the words "aggrieved", "lodge" and "objection" all mirror the language of section 53(1), (b) the letter was addressed to the Chief Secretary as required by section 53(1), (c) it was sent to her within the time prescribed by section 53(2), and (d) it sought the "reversal" of the Director of Immigration's decision, which was one of the courses which the Chief Executive in Council could take under section 53(4).

16. Mr Marshall relied on the subsequent correspondence to justify the treatment of the letter as a petition to the Chief Executive. That correspondence shows that the Applicants were repeatedly asked whether their letter was intended to be an objection under section 53 or another kind of objection. It was only when the Applicants failed to clarify the position that the letter was treated as something other than an objection under section 53. We have two comments to make on the reliance placed on this correspondence. First, if the letter can only be construed as an objection under section 53, the Applicants' subsequent failure to respond to queries as to what they had intended the letter to be cannot affect the matter. An objection under section 53 cannot be transformed into some other form of objection simply by a failure subsequently to confirm that it was an objection under section 53. Secondly, we suspect that there might have been an agenda at play here. It may be that the Administration, for administrative convenience, prefers objections to immigration decisions to be handled by policy secretaries rather than by the Chief Executive in Council. It may therefore be the case that whenever an objection does not expressly refer to section 53, an attempt will be made to treat the objection as one not made under section 53. Thus, it may be that the Administration's practice is to put the objector to his election, and to assume (in the absence of such an election) that the objection is not being made under section 53. We do not, of course, come to any conclusion on the topic, and we would not want to appear even to be suggesting bad faith on the part of the Administration. But as Mayo V-P pointed out in the course of argument, why make that assumption? If the language of the objection is consistent with the invocation of the procedure under section 53, why not assume (in the absence of such an election) that the objection is being made under section 53? Since there is a bespoke statutory procedure for reviews of immigration decisions, should it not be assumed that that is the procedure being invoked?

17. For these reasons, despite Stone J's tentative conclusion to the contrary, we are quite satisfied that the Applicants' letter of 9 December 1998 was a letter of objection under section 53, and that the objection should have been considered by the Chief Executive in Council. For that reason, the Applicants were entitled to have the decision of the Secretary for Security quashed because she had had no jurisdiction in the matter. In theory, the Applicants would also have been entitled to an order of certiorari quashing the decision of the Chief Secretary to treat the letter as something other than an objection under section 53 and to an order of mandamus directing the Chief Executive in Council to consider the objection. We do not think that we should make either of those orders for two reasons. First, neither the Chief Secretary nor the Chief Executive in Council were made respondents to the application for judicial review, in the sense that the notice of motion was not served upon them as required by Ord. 53 r. 5(3). Secondly, we have no doubt that the Chief Executive in Council will honour this judgment and will consider the objection without the need for an order of mandamus.

Conclusion

18. It was for these reasons that we dismissed the appeal, though we must make it clear that we express no view whatever on the merits of the argument that procedural fairness required the disclosure to the Applicants of the memorandum of 8 March 1999. That is not an issue which we have had to address. Finally, we were addressed on the question of costs, and the conclusion which we have reached is that the Secretary for Security must pay to the Applicants their costs of the appeal and the Respondent's notice, to be taxed if not agreed. There will also be an order for the taxation of the Applicants' costs of the appeal under the Legal Aid Regulations.