MADAM LEE BUN v. DIRECTOR OF IMMIGRATION

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JUDGMENT

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Sir Derek Cons, V.P. delivered the judgment of the Court:

1. These are appeals from Sears, J. who, on the 7th March this year, declined judicially to review Removal Orders made on the 25th January by the Deputy Director of Immigration under powers granted to him by Section 19(1)(b) (ii) of the Immigration Ordinance, Cap. 115.

2. On the 6th December last year the Appellant LEE Ching Ming and his wife the Appellant LEE Bun were arrested with others during a police investigation into a syndicate involved in the provision of forged travel documents. They told the police that they had entered Hong Kong illegally by boat from China some three months earlier, i.e. on the 2nd September, and had hidden in various locations meanwhile; at the time of arrest they were awaiting forged Thai passports to enable then to leave Hong Kong.

3. On the 10th December the Appellants were interviewed by Immigration Officers to whom they

"claimed that they had been involved in the recent political protests in China during the period April to June 1984 and that consequently they feared that they would be persecuted for political reasons upon. being returned to China. In the course of the next  few weeks this claim was the subject of detailed examination and scrutiny by immigration department and security branch officials. It appeared to the officials concerned that there were material shortcomings and suspected fabrications in their account, more particularly in Mr. Lee's account of his alleged medical qualifications and experience, the Applicants' claimed involvement in the student movement and protests, and their failure to adequately account for the large suns of money in their possession."

4. In the light of those conclusions the Deputy Director made the orders just mentioned. With the leave of Mayo, J. the Appellants challenged the validity of the orders by way of judicial review. Each filed an affirmation in support and the Deputy Director filed one affidavit dealing with the history of the Removal Orders and the Appellants' subsequent appeals and petitions to the Governor. In addition he filed a "Supplementary Affidavit" which, at the request of the Crown, the judge ordered should not be published, except to the Appellants and their professional advisers, without the leave of the court. The affidavit set out to some extent the reasons which prompted the decision of the Deputy director and are contained in the passage we have just quoted. The affidavit also disclosed that the Appellants were wanted by the authorities in the People's Republic of China upon serious charges of "profiteering" and fraud. There were other matters too, which do not heed to be repeated.

5. The application for judicial review sought five specific reliefs. Only one is still pursued in these appeals, namely that the Removal Orders be quashed. Two others, originally included in the Notice of Appeal, have been abandoned. They are:

6. Mr. McCoy, who appears for the Appellants as he aid below, puts the appeals on three points, - that the Appellants had been deprived of their right to a fair hearing, that their applications were not given individual consideration, and that the Removal Orders were no more than extradition orders in disguise.

Right to a fair hearing

7. This point rests initially on drawing from the passage in the Supplementary Affidavit that we have earlier set out an inference that in the course of the "detailed examination and scrutiny by immigration department and security branch officials", to which the Appellants appear not to have been party, facts were revealed or conclusions reached which were adverse to the Appellants. Mr. Whaley, who appears for the Director, as he did below, has observed that a consideration of the full circumstances, which are known equally to the Appellants as to the Director, would negative that inference; but he very fairly accepts that we, like the judge below, have to come to our decision on such evidence as is actually before us. For the purposes of these appeals we are content to accept the picture that Mr. McCoy has drawn. His contention then is that the Director, before coming finally to his decision, was bound to give the Appellants an opportunity to rebut whatever were those adverse facts or conclusions; to that end the Director was obliged to make known to the Appellants at least their gist or substance.

8. The starting point for Mr. McCoy's authorities is the well-known passage in Kanda v. Government of Malaya [1962] A.C. 322 at 337:

9. From there he takes us through various passages in the Attorney General v. Ryan [1980] A.C. 718 Gaima v. Secretary of State [1989] Imm.A.R. 205, Awuku v. Secretary of State unreported 23rd September 1987; Mohu v. Attorney General [1985] L.R.C. (Const) 940, Daganayasi v. Minister of Immigration [1980] 2 N.Z.L.R. 130 and R. v. Secretary of State ex parte Thirukumar and others [1989] Imm. A.R. 270, in particular at p. 283 to the comments of Parker, L.J.:

10. That, suggests Mr. McCoy, is the irreducible minimum which natural justice demands in cases where the applicant is seeking political asylum.

11. The cases to which we are referred represent a great weight of authority, but in our judgment the common thread of natural justice which links them together does not take its colour from the few which involve claims for political asylum, but rather from the fact that in each and every one the applicant was seeking to enforce a right drawn from some other source in law and which, if it were successfully maintained, would have deprived the authority in question of its otherwise unfettered discretion. Or to look at it in another way, there was present in each of the situations concerned something in the nature of a lis, something as to which it could properly be said that there was an "opposing case" to be put forward. In Kanda the suggested right was to be found in the articles of the Constitution of the Federation of Malaya; in Ryan, in Article 5 of the Constitution of the Commonwealth of Bahamas; in Awuku and Thirukumar reliance was placed upon the provisions of the Immigration Act 1971 and the Statement of Changes in Immigration Rules (HC 169), which incorporated into English domestic law the provisions of the Convention; although it is not actually mentioned in the report we assume the position to be the same in Gaima; the rights of Miss Daganayasi were drawn from Section 20(A) (2) of the New Zealand Immigration Act; it is not clear whether the section of that Act relevant to Mr. Monu gave him rights or not, but the intervention of his wife's solicitors certainly gave an adversarial flavour to the situation. Confirmation that this is the true thread running through this line of cases is to be found in the words of Lord Denning, M.R. in Schmidt v. Secretary of State [1969] 2 Ch. 149 at 170:

12. Even so, continues in effect the argument of Mr. McCoy as we understand it, in the present circumstances the Appellants do have rights in the sense we have ventured to suggest; those rights are given to them by either the  Convention or customary international law, or are derived from the fact of their claim for political asylum itself.

13. In our view the Convention does not assist the Appellants. It is common ground that although the United Kingdom has ratified the Convention and that it has been extended to many, if not most, of Her Majesty's other dominions, it has not been extended to Hong Kong. "Treaties and declarations do not become part of our law until they are made law by Parliament": per Lord Denning, M.R. R. v. Chief Immigration Officer ex parte Bibi [1976] 1 W.L.R. 979 at 984H. R. v. Secretary of State ex parte Kirkwood [1984] 2 All E.R. 390 is further authority that the Secretary of State, when exercising statutory powers, is not obliged to have regard to a convention which has not become part of domestic law; a fortiori then, with regard to Hong Kong, where the Crown is not even party to the Convention.

14. The argument for customary international law proceeds on the assumption that such law is part and parcel of the Common Law: see Trendtex Trading Corporation v. Central Bank of Nigeria [1977] 1 Q.B. 529. Our attention is then drawn to the learned writings of Professors Plender and Goodwin-Gill in respectively "International Migration Law" revised 2nd Edition and "The Refugee in International Law", where it is suggested, for the reasons the authors there set out, that the principle of non-refoulenent, - that is not to return a person to the country whence he came if his life or freedom would there be threatened on account of race, religion, nationality, membership of a particular social group or political opinion - has become nowadays part of international customary law. But we observe that Professor Plender notes, at p. 433, that in some states, including the United Kingdom, it is not open to a litigant in domestic courts to rely upon the principle in the face of inconsistent domestic legislation. This is confirmed by Professor Brownlie, in his "Principles of Public International Law" 3rd Edition at p. 45.

15. At this stage the argument beings to overlap with Mr. McCoy's third source of rights, the nature of the claim itself. The joint feature is the obvious concern for the plight of the individual. We are referred to Lord Bridge in R. v. Home Secretary ex parte Bugdacay [1987] 1 A.C. 514 at 531:

and to Parker, L.J. in Thirukumar at p. 283:

16. We cannot, and would not for one moment, deny the cogency of those observations, but we nevertheless find ourselves obliged respectfully to adopt the words of Donovan, L.J., albeit in a slightly different context, in R. v. Governor of Brixton Prison ex parte Soblen [1963]. 1 Q.B. 243 at 307:

17. We would also draw attention to the comment of May, L.J. in Gaima at p. 207:

18. We venture to doubt that an individual court has carte blanche to impose whatever it individually considers to be fair having regard only to the particular circumstances that are before it. Even natural justice, like other justice that courts attempt to administer, must be administered according to law. If the claimed political refugee is entitled to know at least the substance of whatever may be adverse to his interests and to have the opportunity to deal with that, so must any other applicant for a discretionary privilege. His life may perhaps not depend upon the outcome of his application, but his livelihood may, and he too would not like to be prejudiced by some material mistake of fact which could perhaps swiftly have been corrected.

19. But there is an even greater hurdle for Mr. McCoy to overcome, and one that is in our opinion insurmountable. we have already noted that the Convention has been ratified by the United Kingdom but not extended to Hong Kong. The United Kingdom is also party to the International Covenant on Civil and Political Rights, Article 13 of which provides:

20. This Covenant has been extended to Hong Kong but nevertheless there is a rider:

21. Finally we note that in 1981 the legislature enacted, as Part 3A of the Ordinance, specific provisions with regard to Vietnamese refugees.

22. In the light of these three factors we can only conclude that the legislative authority in Hong Kong intends that, apart from Vietnamese refugees, those claiming. political persecution shall not be accorded any special rights and that the general discretion given to the Director shall remain unfettered by rules. It is well established that the principles of natural justice may be used by courts to supplement legislation: see Lord Reid in Wiseman v. Borneman 1971 A.C. 297 at 308, but we do not think the principles can be used to contradict the clear intention of the legislature.

23. As in the present instance the Director of Immigration appears to have accepted representations from the Appellants, we do not find it necessary to comment on Mr. Whaley's submission, based principally on Soblen and Schmidt, that the Appellants have no rights to be heard at all. It is sufficient to say that for the reasons we have attempted to explain the Appellants were not entitled to a further hearing than they received.

Separate consideration

24. It seems from such parts of the internal files of the Immigration Department that are exhibited to the first affidavit or the Deputy Director that within the departmental system the two Appellants were dealt with at the same time; and the Supplementary Affidavit, which is the only other indication we have of now their representations were considered, makes no distinction between them, save as to the comments' upon Mr. Lee's claim to medical qualifications and experience.

25. We do not find this surprising, for the Appellants are indeed husband and wife, they were arrested together and apart from the overt acts of political involvement, the material factors put forward on their behalf are identical. Like the judge below, we are not satisfied that either suffered prejudice by what he termed their being "lumped together" to some extent.

Disguised extradition

26. It appears that as long ago as 1858, by the Treaty of Tientsin, provision was made for returning to China subjects of the Emperor who were wanted for crime and had taken refuge in Hong Kong or upon Britisn ships here. The present law, so far as we are concerned, is to be found in the Chinese Extradition Ordinance, Cap. 235, dating from November 1889. We are told that the Ordinance has not been used since 1935, although it was in common use until then, and we note that the schedule seems to be regularly updated in accordance with changes in our law.

27. Mr. McCoy observes that the request for the return of the Appellants to the People's Republic of China was received some four weeks before the Removal Orders were made and suggests that the Deputy Director, or at least those advising him, may well have been influenced by it. Add to that, he says, the significant absence nowadays of any genuine extradition proceedings and there appears the likelihood that the Removal orders were used in their stead. We cannot agree. The view of the legal status of Hong Kong taken by the Government of the People's Republic of China readily explains why no use is currently made of the extradition procedure. We have read the Supplementary Affidavit of the Deputy Director. We need only say, to borrow the words of Lord Denning in Soblen, that we see no ground for attributing to the Deputy Director anything in the nature of a sham or want of bona fides, or any unlawful or ulterior purpose.

28. For all these reasons the appeals of LEE Ching Ming and LEE Bun against the decisions of Sears, J. are dismissed.