RE HO MING SAI AND OTHERS

HCMP NO 1004/92

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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Nazareth, JA:

1. I have before me an application by the three Applicants, the third Applicant Ho Juen Hoi being the father of the other two Applicants, for leave to apply for judicial review of a decision of the Director of Immigration given on 7th January 1992, refusing to exercise his the first two Applicants to remain in Hong Kong. Unlike Ho Juen Hoi, who is a lawful resident, the two Applicants landed Hong Kong unlawfully. In their own words they sneaked into Hong Kong in November 1990 and surrendered to the Immigration Department in February 1991 under the impression that there was an amnesty.

2. Their father used to live alone before they came to Hong Kong. Their mother, they say, was not prepared to live with him because she cannot tolerate his behaviour. Dr Singer, whose psychiatric report has been exhibited on behalf of the Applicants, diagnosed him as suffering from schizophrenia and noted he had been hospitalised for treatment three times between 1960 and 1966. His behaviour is often bizarre and abnormal. Treatment helps but he requires someone to care for him. Dr Singer adds that the first Applicant, his elder daughter, would be a fit and proper person to care for him. It would be better if the second Applicant, the other daughter, could also help as the task would be too taxing for one person.

3. The Director of Legal Aid, who arranged for the psychiatric examination to be carried out on behalf of^, the Applicants, sent the report to the Director of Immigration on 24th September 1991, asking to be informed whether the Director proposed to re-open investigation of the case and agree to set aside the removal orders.

4. According to the first affidavit of the first Applicant, Ho Ming Sai, upon receipt of Dr Singer's report, the Director of Immigration arranged for her father to have another assessment at the Tuen Mun Hospital. Thereafter, she affirmed, the Immigration Department told her that the doctors in Tuen Mun Hospital remarked that her father did not need someone to care, for him although he had mental problems. She added that she did not know whether there was such a remark by the Tuen Mun Hospital but she doubted very much if the doctor was in a position to comment as he had only seen her father for half an hour.

5. Shortly after her father's assessment at Tuen Mun Hospital, by a letter dated 7th January 1992, the Director of Immigration responded to the letter of 27th September 1991 from the Director of Legal Aid in the following terms:

"We have carefully considered the points raised vide your memo dated 24 September 1991 and have decided that the removal orders made in respect of Mr Ho's two daughters be upheld. .... Arrangements are being made for the abovenamed's removal to China on 6 January 1992."

This, the Applicants regard as the Director's refusal or failure to exercise his discretion under s 13 of the Immigration Ordinance, which they now seek leave to have reviewed. In their application for leave they state the relief sought in the following way:

"1. Certiorari to bring up into the High Court for the purpose of quashing the decision of the Director of Immigration in refusing to exercise in a lawful manner his discretion under s 13 of the Immigration Ordinance (Cap 115).

2.     Mandamus directed to the Director of Immigration directing him to exercise his discretion under s 13 of the Immigration Ordinance to consider whether or not to allow HO MING SAI (or "SIN") and HO MING FUNG, the 1st Applicant and 2nd Applicant herein to stay in Hong Kong."

A third relief originally sought is not now pursued.

Section 13 of the Immigration Ordinance provides that:

"The Director may at any time authorise a person who has landed on Hong Kong unlawfully to remain in Hong Kong ... "

It is common ground that the Director has a discretion to allow an illegal immigrant to remain in Hong Kong.

6. It is not in dispute that to obtain leave the Applicants must show that they have an arguable case. (see e. g. R v Secretary of State for the Home Department ex parte Swati [19861 1 WLR 477.

7. In their application the Applicants specified their grounds under four heads with no less than 18 paragraphs of particulars. It has to be said with regret that every conceivable ground regardless of merit has been thrown in, not without justification attracting the characterisation of a blunderbuss approach by Mr Peter Graham for the Respondent. Some of the particulars even mystified the Applicants' counsel, Mr McCoy, who had to abandon them. In sum they tended to discredit those few he was able to argue. It is with the latter that I propose to concern myself.

8. The first head of the Appellants' grounds is that the decision of the Director of Immigration in refusing to exercise his discretion at all or lawfully in accordance with s 13 of the Immigration Ordinance (Cap 115) is Wednesbury unreasonable.

9. Paragraph (a) of the particulars is that the Director failed to take into account or failed to make sufficient enquiry concerning the medical condition of the Applicant Ho Juen Hoi. Mr McCoy for the Applicants. neither cites or relies upon any authority in support of these grounds. He submits simply that to properly exercise his discretion it is necessary, and there is a corresponding duty upon the Director, to make enquiry. In the context of the now generally well-established scope and procedures pertaining to judicial review the ground that the Director failed to make enquiry concerning the medical condition of the Applicant Ho Juen Hoi is surprising, and one for which some authority would be expected. But Mr McCoy has not sought to rely upon any. Instead he simply submits that it is plain and obvious that nobody in the Director's position would properly exercise the discretion under section 13 in the circumstances of the present case without reference to the Applicant's medical condition and, in the circumstances, enquiry into it. That may seem reasonable upon its face, but it does not accord with the established nature and limited scope of judicial review, to which matter I shall return. Moreover such authority; as there is, suggests that there is no such obligation (per Sir Derek Cons V-P in Chan Sau Mui and Others v Director of Immigration Civil Appeal No. 60 of 1992, Court of Appeal, unreported). The facts in that case were not dissimilar. A lawfully. resident male with two young children was injured. It was contended that he needed the care and assistance of his wife, who was unlawfully present in Hong Kong and whose removal the Director of Immigration had ordered. In his affidavit the Deputy Director had stated that:

"Consideration was also given to the fact that (the husband) had a brother, brother-in-law and uncle in Hong Kong and that family service and the Social Welfare Department were available to give assistance in case of need."

The Applicants sought to have the Deputy Director cross-examined as to whether such care was available. Mr McCoy appearing for the Applicant sought to rely upon the following authority in the speech of Lord Diplock in Secretarv of State for Education and Science v Tameside Metropolitan Borough council [1977) AC 1014 at 1065:

"Or, put more compendiously, the question for the court is, .did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"

Sir Derek Cons, V-P at pp 9 and 10 of the judgment stated:

"For my part I am unable to read those words, taken in the context of that case, as imposing upon the Director in circumstances such as the present any obligation to seek out and interview the relatives mentioned."

I am satisfied therefore that "failure" of the Director to make enquiry is not an arguable ground.

10. I turn then to the alleged failure of the Director to take into account the medical condition of Ho Juen Hoi in paragraph (a) and the other matters mentioned in some of the succeeding paragraphs of the particulars of the first ground, i.e. the medical diagnosis of schizophrenia of Ho Juen Hoi, the expert medical opinion as the need for and suitability of Ho Ming Sai and Ho Ming Fung to remain with him and look after him, and the fact that the schizophrenia of Ho Juen Hoi was a bar to his return to China resulting in inevitable separation of a father from his two daughters who were uniquely able and required to look after him. Some of these matters had not been brought to the attention of the Director of Immigration. There was absolutely no evidence that the Director had failed to take account of others. I am satisfied that for those reasons these are not arguable grounds.

11. The particulars go on to claim that "the Director took into account an opinion that the Applicant Ho Juen Hoi did not need someone to care for him, which was not based upon a thorough or complete or sufficient medical and psychiatric examination of the Applicant Ho Juen Hoi and was based on no evidence". There is no evidence that the Director took into account any opinion that was flawed in such manner. This ground, too, I am satisfied is not arguable.

12. In paragraph (e) of the particulars it is claimed that the Director took into account an opinion that the Applicant Ho Juen Hoi did not need someone to care for him which was not put to the Applicants for comment". I will return to this paragraph of the particulars in the context of head 3 of the Appellants^, grounds.

13. Paragraph (f) claims that "given the unique and tragic circumstances of the Applicants, the refusal to recognise any circumstances that would justify the Director in exercising his discretion to allow the Applicants to remain under s 13 was perverse in the sense it was so unreasonable that no reasonable Director properly directing himself and assessing the material and evidence presented to him with reference to proper legal criteria, could have come to such a decision". Having heard what Mr McCoy had on this ground I am satisfied that it is not arguable.

14. In paragraph (g) it was alleged that "the Director failed to take into account the fact that the Applicants have a well-founded fear of persecution in China by reason by their mother's imputed political opinion, on account of her arrest and imprisonment in China on charges of spying for Taiwan and that their forced return to China would constitute a breach of customary international law (i.e. the customary international rule prohibiting refoulement), and of the International. Covenant on Civil and Political Rights: By forcing the first and second Applicants .to return to a country in which they have a well founded fear of political persecution which would itself be in breach of, inter alia, Articles" 19; 22 and 26 of the Covenant the Director of Immigration is causing the Hong Kong Government to facilitate a breach of the said Covenant and thereby to be in breach of Articles 2 and 3 of the said Covenant". Had the Director not so failed, Mr McCoy submits, he would have realised that the first two Applicants were political refugees entitled to political asylum and to political refugee screening. Instead, he submits, the Director placed their case in the wrong "pigeonhole". In the peculiar circumstances of this case he further submits, that was perverse and Wednesbury unreasonable. I must confess that I do not see it that way at all, not even arguably so.

15. Further there is no evidence that the Director failed to take the matters in paragraph (g) into account or, for that matter, that they were drawn to his attention. In any case, the Convention referred to has not been extended to Hong Kong and is not part of our law (Lee Pun and another v Director of Immigration (1992) HKLR 466, 473 D-I). I do not see that it affords the Applicants any ground even in the aspirational sense Mr McCoy sought to rely upon. I am satisfied, therefore, that this ground is not arguable, and for like reasons that paragraph (h) which also relates to the Covenant is not arguable.

16. Finally in paragraph (i) it is claimed that "the Director failed in the premises to take into account relevant consideration or took into account irrelevant considerations in reaching his decision". This ground is not particularised and insofar as it relates to the earlier paragraphs has been rejected. I am likewise it does not raise any arguable grounds.

17. The second head of grounds upon which the Applicants rely, is that the decision of the Director of Immigration in refusing to allow the Applicants to remain in Hong Kong pursuant to his discretionary power under s 13 of the Immigration Ordinance, displays an error of law upon the face of the record and/or was unfair. It is not apparent on its face what this head relates to. However proceeding to the particulars, paragraph (a) claims that the Director failed to make appropriate findings of fact in respect of the request for the Applicants to be allowed in Hong Kong. No authority was cited by Mr McCoy for the proposition that the Director had a duty to make appropriate findings of fact nor is it supported by anything in the Immigration Ordinance. I am not satisfied that this ground is arguable in the way it has been formulated.

18. Mr McCoy does not rely on paragraph (b) of the particulars of head 2. Paragraph (c) is that "the Director failed to give reasons or proper or sufficient reasons for refusing to allow the Applicants to remain in Hong Kong". Mr McCoy says that paragraph (a) was intended to make the same point. There is nothing in the Immigration Ordinance that requires such reasons to be disclosed. It is not suggested that the Applicants had any legitimate expectation that the reasons would be disclosed, or that the Director was a tribunal with the character of a judicial body (re R v Civil Service Appeal Board, ex parte Cunningham (1991] 4 All ER 310). On the contrary the Director's position was very similar to that of the Home Secretary in Schmidt v Secretary of State, Home Affairs (CA) (1969) 2 Ch 149, 170H-171C where Lord Denning observed that the Home Secretary could refuse to extend leave to an alien to stay without giving reasons.

19. In Hong Kong the matter was considered in Lau Tak Pui v Director of Immigration Civil Appeal No. 179 of 1991, unreported, and it was acknowledged (at p. 12) that the general rule that the common law, which enshrines the principles of natural justice, does not itself require a public law authority or tribunal always, or even usually, to give reasons for its decision. The case was concerned with a decision of the Immigration Tribunal rather than the Director, and although the court concluded that the Tribunal should give adequate reasons, it did so on the basis that the Tribunal acts judicially and that. the case concerned was a special case (at pp 14 and 15).

20. I am therefore not persuaded that Dr Singer's report and opinion, or its rejection, or the humanitarian component, or the requirements of natural justice or fair play insofar as they applied, required the Director to give reasons for his refusal to allow the first and second Applicants to stay. In my judgment this ground is not arguable.

21. Paragraph (d) is that "the Director was required as a matter of law and/or fairness to give the Applicant an opportunity to consider and if necessary give further evidence about any provisional findings of reasons adverse to the Applicant, prior to a formal decision adverse to the Applicant being made". This is similar to paragraph (a) of the particulars of head 3, and I shall return to it in the context of that paragraph.

22. Paragraph (e) is that "the Director made a decision that the Applicant Ho Juen Hoi did not need someone to care for him, which was based on no evidence". Mr McCoy did not pursue this ground.

23. Proceeding to head 3 of the grounds, this is that "the decision of the Director of Immigration not to exercise his discretionary power under s 13 of the Immigration ordinance to authorise the Applicants to remain in Hong Kong, was made in breach of natural justice". Mr McCoy says it is the broadest ground.

24. Paragraph (a) of the particulars is that "the Director took into account an opinion which contradicted the medical report and opinion of the Applicant's medical expert without giving the Applicants an opportunity to see such medical opinion or to comment upon the same"; paragraph (e) of head 1 is in substance the same.

25. If I rightly understood Mr McCoy's submissions, the burden of paragraph (d) of head 2 is in substance the same as that here, and in addition that the provisional finding contemplated was the acceptance of an opinion of the Tuen mun Hospital doctor that Ho Juen Hoi did not need someone to care for him, in contradiction of the opinion of Dr Singer.

26. Paragraph (b) of head 3, is not unrelated, and is that "the Director failed to provide the Applicants with a copy of all documentary material in the Director's folder or as was held by the Immigration Department pertaining to the Applicants".

27. These three paragraphs of particulars embody the Applicants' attempt to widen the scope and nature of judicial review. I do not propose to set out the considerable dicta that now defines that scope and nature. Suffice it to refer to only the following passage from but one of the authorities canvassed before me which seems to be particularly apposite:

"Those of us with experience of judicial review are very much aware that the scope of the authority of decision-makers can vary widely and so long as the authority is not exceeded it is not for the courts to intervene. They and not the courts are the decision-makers in terms of policy. They and not the courts are the judges in the case of judicial and quasi-judicial decisions which are lawful. The public law jurisdiction of the courts is supervisory and not appellate in character. All this is very much present to the minds of judges who are asked to give leave to apply for judicial review. Such leave will only be granted if the applicant makes out a prima facie case that something has gone wrong of a nature and extent which might call for the exercise of the judicial review jurisdiction" (per Lord Donaldson MR in Ex parte Cunningham at 315H)

28. Except in one respect, to which I shall come, Mr McCoy again does not rely upon any authority for his bold attempt to have the essential nature of judicial review and its limited scope disregarded in ways that will not only have far-reaching consequences but seem to be inconsistent with that essential nature.

29. It is important, first of all to have regard to the Director's function. It is neither a judicial or quasi-judicial function. It is not merely an exercise of the discretion under s 13, but a discretion that derives from and in part replaces the royal prerogative (see R v Secretarv of State for the Home Department, ex parte Raiinder Kaur and others [1987] Imm AR 278; 291 per Glidewell LJ). It is not fettered by the Immigration Ordinance in any of the ways contended for, nor is there any requirement even implied by or under that legislation that persons unlawfully in Hong Kong who seek leave to remain can have any sort of right to embark upon a hunting expedition into the Director's files.

30. Mr McCoy's general submissions of unfairness, which is really a complaint of the unfairness of the limited nature and scope of judicial review, and the difficulties the Applicants face without the information in the Director possession, without knowledge of what information the Director relied upon, without the provisional or preliminary views the Director formed and the reasons for his decision, are all complaints about the established nature and scope of judicial review. I am satisfied that they are not arguable on that general basis.

31. On a rather more specific basis, he seeks to found his submission upon Dr Singer's report and opinion, arguing that once received, the Applicants were entitled to know and the Director was obliged to disclose the reasons for rejecting it, any contrary report and opinion, the reasons for accepting it in preference to Dr Singer's report, the reasons for the decision, and even relevant documentary material in his possession. Even if it were probable that a report and opinion had been sought and received from the Tuen Mun Hospital doctor and taken into account, as Mr McCoy was able to argue convincingly, I do not see that the Applicants can be entitled to the information they seek, without legal authority to support that contention. It would be all to easy to put in some supporting material in any application for extension of stay, and that must, in any case, happen quite commonly.

32. The single authority Mr McCoy relies upon is Mahon v Air New Zealand (PC) (1984] 1 AC 808. In that case, their Lordships reduced the rules of natural justice germane to that appeal to two rules. The second was framed in the following way (at p 821B):

"The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result."

33. In identifying the rules of natural justice germane to the appeal their Lordships recognised that the court in Ex parte Moore (1965] 1 QB 456, 488, 490 whence they derived those rules, was dealing with the exercise of an investigative jurisdiction, though of a different kind from that Mahon was concerned with. The Director in the present case was not dealing with the exercise of an investigative jurisdiction. He was dealing with the exercise of discretion - moreover, as Mr Graham points out, discretion related to the residue of prerogative power.

34. Mr Graham also relied upon the dicta of Lord Denning in three cases. First, Schmidt v Secretary of State, Home Affairs in which Lord Denning MR approved the view taken by Lord Parker CJ in ex parte Aktar Singh, that the immigration officers in the latter case were under no duty to tell the Commonwealth citizen concerned why he was refused admission and were not bound to give him an opportunity of making representations.

35. Second, Rea v Governor of Brixton Prison ex parte Soblen (CA) [1963] 2QB 243, 298 in which Lord Denning held that an alien had no right to be heard before a deportation order was made (although he reserved his opinion on whether the alien did not have that right before the deportation order was executed).

36. Finally, Mr Graham referred to Rea v Home Secretary ex p. Mushal [1974] 1 QF 313, 325, in which it was submitted that the immigration officer ought to have disclosed and sought the applicant's explanation on adverse reports he had received about the applicant's passport and tax returns. Lord Denning declined to accept that criticism, pointing out that the immigration officer was not a judge or judicial officer, and that so long as he acted honestly and fairly the courts cannot and should not interfere. Significantly in the present context, with reference to the immigration officer's inquiries, he added:

"There was no need at all for the immigration officer to put them to him when they proved adverse. The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke 'the rules of natural justice' so as to avoid the consequences."

37. In the result it does not seem to me that the Applicants have shown an arguable case under head 3.

38. Mr McCoy did not pursue the grounds under head 4. which related to an alleged policy not to allow illegal immigrants from China to remain in Hong Kong under the discretionary power under s 13, of which there was no evidence.

39. I am satisfied therefore that no arguable case has been shown and that leave to apply for judicial review must- be refused.

40. It was agreed by counsel that in handing down a written judgment I should deal with the costs of this application by order nisi. I can see no reason why the costs should not follow the event and accordingly order nisi that the Respondent is to have his costs, such order to become absolute within 14 days if no application to vary it is made in that time.

41. Since this appears to be the first of the several such cases foreshadowed in Chan Sau Mui (p. 12) I am handing down this judgment in open court.