YIP CHI LIN v. THE DIRECTOR OF IMMIGRATION

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JUDGMENT

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[Function of Immigration Tribunal]

Roberts, C. J. -

1. This is an appeal against a judgment of a High Court Judge, delivered on 27th June of last year, in which he dismissed an application by the appellant for judicial review of a decision of the Immigration Tribunal ("the Tribunal") dated 15th May, 1985.

2. In view of the long and unfortunate history of this appeal, we think it necessary to make some observations about the way in which legal advisers should approach appeals, where the liberty of an individual is concerned.

3. The application for judicial review was dismissed on 27th June last year, so that it has taken seven and a half months' for the appeal against that dismissal to reach this court, during the whole of which period the appellant has been in custody.

4. Without an adequate explanation, and none was furnished to us, this delay does not show a proper regard for the appellant's interests, since his legal advisers seem to have made no attempt to hurry this matter forward.

5. It is almost always possible, where personal liberty is involved, for legal advisers to obtain an early date for a hearing, provided that they make it clear to those in charge of the lists that an appellant is in custody. I hope that we shall not again have to deal with an appeal which has taken so long to reach us, when it relates to an appellant who is in custody.

6. The appellant, in a statement which he made on 26th March, 1985, the day of his arrest as an illegal immigrant, to the Immigration Department, admitted that he came to Hong Kong in September 1981, after buying a false identity card at his native village in China. He worked, after his arrival in Hong Kong, until 1985, when it became necessary for him to apply for a new identity card and he threw the old one away.

7. In a subsequent statement, dated 18th April, he changed his story to the extent that he asserted that he had come to Hong Kong illegally in September 1980 rather than in September 1981. The second statement otherwise adds nothing else of significance to his earlier statement.

8. The Director issued a notice of Removal Order against him on 13th May, 1985. He exercised his right to appeal to the Tribunal, filing his Notice of Appeal on the same day. The Tribunal rejected his appeal on 15th May, by way of written decision but without giving a hearing to the appellant.

9. The first ground of appeal was based upon the interpretation of section 19(1)(b) of the Immigration Ordinance, which empowers the Director of Immigration to make removal orders in certain circumstances, among them, if it appears to the Director that a person has, "whether before or after the commencement of the Immigration (Amendment No.4) Ordinance 1981, landed in Hong Kong unlawfully".

10. It is not disputed that the appellant landed unlawfully in Hong Kong, in September 1980 to give him the benefit of the earlier date.

11. Mr. Persaud argues that the phrase "whether before or after the commencement of the Immigration (Amendment No.4) Ordinance 1981", which was the 11th December, 1981, ought to be construed in such a way that it did not apply to persons who had arrived in Hong Kong illegally before 26th October, 1980.

12. The significance of the latter date, is that what might properly be described as an amnesty was granted to anyone who had originally entered Hong Kong illegally and who wished to regularize his position, provided that he applied for registration between 23rd and 26th October, 1980.

13. The submission involves reading into the subsection words which are not there and which the legislature would certainly have included had they intended the-subsection to bear the meaning for which Mr. Persaud argues.

14. As the Judge commented, section 19 means exactly what it says. It gives this power to the Director in relation to any person who landed in Hong Kong unlawfully whether before or after 11th December, 1981.

15. The next ground of appeal was that the effect of the amnesty was to give the appellant a right to be considered for permission to remain in Hong Kong. It is only necessary in relation to this point to refer briefly to Mak Yiu Ming and Others v. Attorney General⁽¹⁾.

16. In the judgment of another division of this court, delivered by Sir Alan Huggins, the amnesty is quoted. It is necessary for our purposes, to refer only to its first three paragraphs, which were as follows -

17. There can surely be no doubt that the appellant must have known, when he bought an identity card in China, that he was buying a false identity card. He cannot have imagined that the reference in the amnesty to illegal immigrants without an identity card included those who held forged ones.

18. It is made clear, in the passage which I have quoted, that anyone who entered illegally before 23rd October, 1980, unless he applied for registration, within the three days permitted, was liable to be repatriated to China. This puts those who entered illegally before 23rd October, 1980 and did not register for an identity card in the same position as those who arrived illegally after 26th October, 1980. So his presence, before the date of the amnesty gives him no different right to consideration from that which applies to illegal immigrants who came here after the end of the amnesty period.

19. It was argued that the Tribunal ought to have put forward to the Director of Immigration a recommendation that the appellant should be allowed to stay on humanitarian grounds, namely that he had been here working quietly, keeping out of trouble and earning his living since September 1980.

20. The function of the Tribunal, which is a very limited one, is set out in sgction 53(D) of the Immigration Ordinance. The effect of this section was considered by Mantell, J. in the application of Hsu Ching po ⁽²⁾, in the following terms, with which we agree -

21. Thus the Tribunal's functions are limited to determining whether, on the facts put before it, the appellant does or does not have a right to land and whether he does or does not have permission of the Director to remain. If it finds that he neither had the right to land nor permission to remain, the Tribunal must dismiss the appeal. If, on the other hand, it finds that he does have the right to land or to remain, it shall allow the appeal and rescind the removal order.

22. Those are its only functions. It is not for the Tribunal to enquire as to whether or not there are humanitarian grounds, which the Director should consider, nor to make any recommendations to the Director in that regard. Whether or not a person is ultimately to be repatriated is a matter within the discretion of the Director who, no doubt, in practice, takes into account such humanitarian grounds as he considers merit consideration.

23. The point was also taken that the Tribunal was wrong to dismiss the appeal without a hearing. This matter was considered by Mantell, J. in the unreported application of Wong Shu Hun ⁽³⁾. He summarizes his view of the effect of section 53C as follows -

24. We agree with this interpretation of section 53C. There should be a hearing only if there are reasonably arguable grounds of appeal in relation to either the appellant's right to land or as to whether or not he has the permission of the Director to remain. So, if humanitarian arguments alone were advanced in the notice of appeal, this would not entitle the appellant to a hearing.

25. There are no merits in this appeal which is dismissed, with costs to the respondent.

(1)    [1981] H.K.L.R. 435.
(2)    M.P. 2007/84 [unreported]
(3)    M. P. 228/85.