CHEN CHENGZHI v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 40/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.40 OF 2005

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J U D G M E N T

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1.  In this judicial review application, the applicant seeks orders of certiorari to quash: (1) the decision of the Director of Immigration (“the Director”) refusing the applicant’s application for a Certificate of Entitlement to the Right of Abode in the Hong Kong Special Administrative Region; and (2) the decision of the Immigration Tribunal (“the Tribunal”) dismissing the applicant’s appeal against the Director’s refusal.  The applicant also seeks a declaration that he is a permanent resident of Hong Kong by virtue of paragraph 2(c) of Schedule 1 to the Immigration Ordinance, Cap.115.

Factual background

2.  The applicant was born in Huidong County (惠東縣) of Guangdong Province in the Mainland on 27 February 1969. 

3.  The applicant’s father, Chan Tung Chun, was born in 1927 in Huidong County.  He died in 1993.  He was not a resident of Hong Kong and had never been to Hong Kong.

4.  The applicant’s mother is Wan Kau Mui (温九妹).  She was born on 9 May 1928.  It is the applicant’s case, but not accepted by the Director and the Tribunal, that his mother was an indigenous villager of Ma Lui Shui village, Shatin (沙田馬科水村) and had lived there until about 1941 when she was separated from her family and lured or taken to the Mainland during the Japanese occupation of Hong Kong.  

5.  The applicant’s parents registered their marriage in Huiyang County (惠陽縣) in Guangdong Province on 17 July 1964.  On 6 October 1966, the applicant’s elder brother, Chan Shing Kan, was born in Huidong County.

6.  On 7 August 1974, the applicant’s mother came to Hong Kong on the strength of a one-way permit issued by the Public Security Bureau of the People’s Republic of China.  On 27 August 1974, she registered for a Hong Kong Identity Card.  One of the information she furnished upon the registration was that she was born on 9 May 1928 in Hong Kong.

7.  On 23 December 1974, the applicant’s mother was issued with a Hong Kong Identity Card.  The identity card stated her place of birth to be “Hong Kong”.  It also showed her date of birth with a remark that it was not verified. 

8.  On about 24 April 1991, the applicant’s mother was issued with Hong Kong Permanent Identity Card.  The new card bears the codes “AFZ”, of which “Z” stands for “the holder’s place of birth reported is Hong Kong”.  There are separate codes for other places of birth reported by the holder of the card, but there is no code for Hong Kong as the registered or verified place of birth. 

9.  Further on 7 December 1979, the applicant’s mother was issued with a Hong Kong Re-Entry Permit in which the place was recorded as “H.K. (N/P)”, which stands for “Hong Kong (No Proof)”. 

10.  Upon her request, the applicant’s mother was issued with a Certificate of Registered Particulars dated 19 August 1996.  By the Certificate, the Registration Officer certified that the applicant’s mother was registered as a New Arrival on 27 August 1974 for Identity Card, and that one of the particulars she lodged with the Registration of Persons Office upon registration was: “Place of birth – Hong Kong”.      

11.  On 24 December 1999, the applicant’s brother came to Hong Kong on account of a one-way permit.  On 30 December 1999, he applied for and was issued a Hong Kong Identity Card.

12.  On 16 May 2000, the applicant made an application to Huidong County Public Security Bureau for settlement in Hong Kong as a child born to a parent who is a permanent resident of Hong Kong.  On 20 June 2002, his application was referred to the Hong Kong Immigration Department for determination as an application for a certificate of entitlement to the right of abode in the HKSAR (“certificate of entitlement”).

13.  By a letter dated 2 December 2003, the Director informed the applicant his application for a certificate of entitlement was refused.  

14.  By notice dated 13 January 2004, the applicant appealed to the Tribunal against the Director’s refusal.  The appeal was heard on 8 July, 6 and 10 December 2004.  A number of witnesses, including the applicant’s mother, her elder sister, younger brother and cousin, gave evidence for the applicant at the hearing.   On 10 December 2004, the Tribunal went to the home of the cousin to obtain his further evidence. 

15.  By Notice dated 8 February 2005, the Tribunal notified the applicant his appeal was dismissed.

16.  On 27 April 2005, the applicant commenced these proceedings. On 28 April 2005, leave to apply for judicial review was granted.  Subsequently, legal aid was granted to the applicant.  On 23 November 2005, the applicant gave notice of intention to amend his Form 86A.    Leave to amend was granted at the hearing of the application.

17.  By letter dated 3 August 2005, the Tribunal gave notice that it did not wish to be represented nor be heard at the hearing, and that it would abide by the decision of the court.

The relevant legislations

18.  Under Article 24 of the Basic Law, Hong Kong permanent residents include:

(1)  Chinese citizens born in Hong Kong before or after the establishment of the HKSAR;

(2)  Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the HKSAR; and

(3)  Persons of Chinese nationality born outside Hong Kong of those residents listed under (1) and (2) above.

19.  Paragraph 2 of Schedule 1 to the Immigration Ordinance provides that a person falling within the following categories is a permanent resident of Hong Kong, namely,

(a)  A Chinese citizen born in Hong Kong before or after the establishment of the HKSAR.

(b)  A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the HKSAR.

(c)  A person of Chinese nationality born outside Hong Kong before or after the establishment of the HKSAR to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b).

20.  Section 2AB(1) of the Immigration Ordinance provides as follows:

“Any person who –

(a)  immediately before 1 July 1997 did not enjoy the right of abode in Hong Kong under this Ordinance as then in force;

(b)  is not the holder of a valid HKSAR passport or valid permanent identity card; and

(c)  claims to be a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1, 

may apply to the Director for a certificate of entitlement.”

21.  Section 2AD(1) of the Immigration Ordinance further provides that an applicant who is aggrieved by the Director’s decision not to issue a certificate of entitlement may appeal against the decision to the Tribunal.

22.  Under section 2AD(5) of the Immigration Ordinance, the Tribunal shall: (a)    allow the appeal if it determines that on the facts of the case as it finds them the appellant is a permanent resident of the HKSAR under paragraph 2(c) of Schedule 1 to the Ordinance; or (b) dismiss the appeal if it determines that on the facts of the case as it finds them the appellant is not a permanent resident of the HKSAR under paragraph 2(c) of Schedule 1.    

The applicant’s case for a certificate of entitlement

23.  The applicant’s case, shortly put, is that his mother was born in Hong Kong in 1928 and that she was in Hong Kong continuously until about 1941 when she went to live in the Mainland.  The applicant therefore says that he is a permanent resident of Hong Kong under paragraph 2(c) of Schedule 1 of the Immigration Ordinance, being a Chinese national born outside Hong Kong to a Chinese citizen who was born in Hong Kong and, at the birth of the applicant, had ordinarily resided in Hong Kong continuously for not less than seven years.  On this basis, he says he is entitled to be issued with a certificate of entitlement.

24.  It is common ground that the applicant would be entitled to a certificate of entitlement if it is proved that his mother was born in Hong Kong or had ordinarily resided in Hong Kong continuously for not less than seven years before the applicant’s birth.

25.   In this connection, the applicant’s mother had between 18 July 2002 and 11 January 2004 written several letters to the Immigration Department and had also made a statutory declaration on 30 December 2003.  In these documents, she gave an account of her place of birth, her family in Hong Kong, the circumstances under which she was separated from her family and came to be living in Huidong County of Guangdong Province and how she was subsequently reunited with her family.  

26.  In brief, Madam Wan said she was born to Wan Ting Fat (温丁發) and Tang Ying (鄧英), both of them were indigenous villagers in the New Territories.  Her father was an indigenous villager of Ma Liu Shui Village of Shatin.  Her father, jointly with two brothers, had inherited various plots of land from her grandfather, Wan Hok Yam (温學欽).  Her father died in Hong Kong during the Japanese occupation of Hong Kong.  Her mother died in Hong Kong in 1994.  Madam Wan has an elder sister, Wan Fook Ying (温福英), and a younger brother, Wan Yau (温有).  They were born in Hong Kong on 1923 and 1935 respectively.

27.  Madam Wan lived with her parents and siblings in Ma Liu Shui Village.  In about 1941 when she was 10 odd (or about 14) years old, the Japanese came to and eventually occupied Hong Kong.  In the course of escaping from the Japanese, Madam Wan was separated from her family and was taken (or abducted) to Huidong County and to a family surnamed Chan.  In accordance with local custom, her surname was changed from “Wan” to “Chan”.  In 1964, she married the applicant’s father.  In 1972, she learnt that her mother had been looking for her and had put up notices in newspapers in Hong Kong.  Subsequently she managed to come into contact with her mother.  With her mother’s support, she changed her surname from “Chan” to “Wan”.  In 1974, she obtained permission to come to live in Hong Kong.  

28.  Madam Wan also mentioned that in 1963, because of government’s plan to develop Shatin, the villagers of Ma Liu Shui Village were resettled in Fanling, where they set up the New Ma Liu Shui Village (馬料水新村).

29.  Madam Wan explained in her letters that she had no documentary proof of her birth and she had not kept the newspaper notices put up by her mother and the related documents.  She however said that her sister, brother and first cousin were prepared to testify and provide proof and information to the Department. 

30.  Apart from the statements and letters of his mother, the applicant also relies heavily on the Identity Card issued to Madam Wan in 1974 and also the Certificate of Registration issued to her in 1996.   It is pointed out that they both show her place of birth to be Hong Kong.  

The Director’s decision

31.  According to the evidence filed on behalf of the Director, the Immigration Department had requested from the applicant evidence in respect of his mother’s birth, past residence in Hong Kong and the newspaper advertisement for lost person, and suggested he should seek assistance from the Rural Committee.  The Department had also contacted the sister and brother of Madam Wan.  The sister said she had married and was living away when Madam Wan went missing while the brother said he was too young to remember.  The Department also conducted a birth record check with the Births Registry, but no record was found.

32.  In the letter to the applicant communicating the Director’s decision, it was said that:

“ … the Director does not accept that you are a permanent resident of the HKSAR referred to in paragraph 2(c) of Schedule 1 to the Immigration Ordinance, Cap.115.”

“It is because we do not accept that the documentary proof  you provided are sufficient to prove that when you were born, your father, Mr Chan Tung Chun, and mother, Madam Wan Kau Mui, had ordinarily resided in Hong Kong continuously for 7 years or more; we also do not accept that your mother was born in Hong Kong.”       

33.  In the affirmation of Ng Ka Chung filed on behalf of the Director (at paragraph 6), the Director’s decision was explained as follows:

“In the absence of sufficient evidence to prove that Madam Wan was born in Hong Kong or had ordinarily resided in Hong Kong for 7 continuous years before the birth of the Applicant, the 1^st Respondent refused the application.  There was a dire lack of documentary evidence to support the application and the available evidence put forward was vague and was from closely related persons without any supporting evidence at all.  The claimed birth in Hong Kong as reported by Madam Wan upon registration for identity card carried little weight in satisfying the claimed birth in Hong Kong or continuous residence for not less than 7 years.  In light of this, the 1^st Respondent refused the Applicant’s application for COE as Madam Wan does not meet the requirements of paragraph 2(a) or 2(b) of Schedule 1 to the Immigration Ordinance at the material time.” 

The appeal to the Tribunal

34.  As noted above, the applicant’s mother and several other witnesses testified for the applicant at the appeal hearing before the Tribunal.  The applicant’s mother was asked a number of questions by the Tribunal.  The majority of them related to her knowledge and understanding of the Ma Liu Shui village and the nearby areas in Shatin and her life during childhood.  She was not cross-examined by the representative appearing for the Immigration Department.

35.  The sister of the applicant’s mother, Wan Fook Ying, gave evidence that the applicant’s mother was born at home in Ma Liu Shui Village and she had helped to carry her when she was small.  She said she married at the age of 19, after which she moved away from Ma Liu Shui village to live in Lam Tsuen (林村).  When questioned by the Immigration Department’s representative, she said she did not go to the Mainland during the Japanese occupation, but the applicant’s mother had followed others to the Mainland. 

36.  The younger brother of the applicant’s mother, Wan Yau, gave evidence that they were indigenous villagers and had been living in Ma Liu Shui village in Shatin until being resettled to Fanling.  He said the applicant’s mother was with the family and had helped to look after him when he was small.  He was questioned about the circumstances under which the applicant’s mother united with the family and came to Hong Kong.  He said their mother put up notices in newspapers to look for his sister, but he did not know the details because it was their mother who contacted his sister and dealt with the application for permission to come to Hong Kong. 

37.  As for the cousin of the applicant’s mother, Wan Kam Lung (温錦龍), he was born in 1926 in Ma Liu Shui village.  He said he was aware that the applicant’s mother was born at home and their two families lived in the same house.  He explained it was not customary at the time to register the birth or to obtain birth certificate, and he himself did not have a birth certificate. Mr Wan further said that the applicant’s mother went to the Mainland when the Japanese came to Hong Kong.  When asked by the representative of the Immigration Department as to why she was the only one to go to the Mainland, Mr Wan replied that her family was poor and she was sold to serve as a daughter-in-law.  In response to the Tribunal’s questions, Mr Wan explained the difficulties in retrieving the lineage record of the clan (族譜).  The village representative, Wan Chi Hung, also gave evidence about the unavailability of the record.

38.  As Mr Pun for the applicant emphasizes in his submissions, Madam Wan was not cross-examined at all.  In respect of the other witnesses, although he had put questions to some of them, he did not challenge their evidence or suggested that they were untruthful in their answers. 

The Tribunal’s decision

39.  The Tribunal’s written decision was annexed to the Notice dated 8 February 2005.  In view of the applicant’s challenge that the Tribunal had failed to give adequate reasons for its decision, it is necessary to set out in details the reasoning of the Tribunal, which appears from paragraph 5 of the Decision onwards.

40.  In paragraph 5, the Tribunal identified the issue of the appeal to be whether the applicant could adduce compelling evidence to prove that one of his parents was born in Hong Kong or, had resided in Hong Kong continuously for seven years or more before his birth.   

41.  In paragraph 7, the Tribunal concluded as follows:

(1)  The applicant was unable to adduce compelling evidence to prove his claim that his mother was born in Hong Kong, lived in Hong Kong during her childhood, but was living in the Mainland from 1942 to 1974.

(2)  The evidence of Wan Kam Lung, Wan Fook Ying and Wan Yau was insufficient to prove that Madam Wan was born in Hong Kong and lived in Hong Kong until 1942 when she returned to live in the Mainland.

(3)  Madam Wan only came to Hong Kong on 7 August 1974 on the strength of a one-way permit.  At the time of the applicant’s birth, she had not ordinarily resided in Hong Kong continuously for seven years or more.

42.  In paragraph 8, it stated that after carefully reviewing the relevant exhibits and considering the evidence of the applicant and his witnesses, the Tribunal was of the view that there was no acceptable evidence to prove that the applicant’s mother was born in Hong Kong.  Alternatively, at the applicant’s birth on 27 February 1969, his father or mother had not ordinarily resided in Hong Kong continuously for seven years or more.

43.  Paragraph 9 said that the applicant did not fall within paragraph 2(c) of Schedule 1 to the Immigration Ordinance and was not eligible for the issue of a certificate of entitlement, and dismissed his appeal.

44.  In the final paragraph (paragraph 10), the Tribunal recorded that it had gone to Wan Kam Lung’s residence on 10 December 2004 to obtain further evidence. It went on to state that Mr Wan was unable to provide credible evidence to prove that Madam Wan lived in Hong Kong from 1928 to 1942.

Grounds for judicial review

45.  The applicant raises two grounds in support of his application for judicial review:

(1)   The decision of the Tribunal is procedurally improper in that it fails to give adequate reasons or at all for concluding that the applicant had not adduced compelling evidence on his claim that his mother was born and had lived in Hong Kong for more than seven years was untrue.

(2)   The Director had given manifestly insufficient weight to the documentary evidence such that his decision to refuse the applicant’s application for a Certificate of Entitlement is irrational.

Ground (1): The Tribunal failed to give adequate reasons for its decision

46.  There can be no doubt that, as a matter of law, the Tribunal is under a duty to give reasons for its decision.  Mr Li, who appears for the Director, is in agreement with Mr Pun on this.   In Lau Tak-pui v. Immigration Tribunal [1992] 1 HKLR 374 at 380, the Court of Appeal held that the Immigration Tribunal, as a judicial body exercising powers that affect the liberty and residential and citizenship rights of the appellants and from which there is no right of appeal, is obliged as a matter of fairness to provide adequate outline reasons indicating the issues to which it has directed its mind and the evidence upon which it based its conclusions.

47.  Since the decision of Lau Tak-piu, the common law has developed further in the area of the duty to give reasons.  In Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority (1997-8) 1HKCFAR 279 at 289J-290C, the Chief Justice observed that the courts in Hong Kong are part of the trend towards an insistence on greater openness of decision making and have been increasingly prepared to find a duty to give reasons in different contexts.  

48.  The Court of Final Appeal held in that case that the duty to give reasons must be discharged by adequate reasons.  As to what amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.  Speaking of the reasons to be given by the Obscene Articles Tribunal, the Chief Justice observed that “the reasons given should show that the tribunal has addressed the substantial issues before it and show why the tribunal has come to its decision.  There may not be any need however to address every single issue.  But the reasons should show that the issues that arise for serious consideration have been considered.” (at 291C-D)

49.  In R v. Immigration Appeal Tribunal ex parte Mohd Amin [1992] Imm AR 367, Shiemann J held that the adjudicators in immigration matters should indicate with some clarity in their decisions:

“(1)    what evidence they accept;

 (2)    what evidence they reject;

 (3)    whether there is any evidence as to which they cannot make up their mind whether or not they accept it;

 (4)    what, if any, evidence they regard as irrelevant.”

50.  In the present case, the central issue before the Tribunal was whether the applicant could prove that his mother was born in Hong Kong and had lived in Hong Kong continuously until the Japanese occupation.  The standard of proof is on a balance of probabilities.  The Tribunal found, as a fact, that the applicant’s mother only came to Hong Kong on 7 August 1974 and decided the issue against the applicant.  In its written decision, the Tribunal stated that the applicant could not adduce compelling evidence to prove his claim, that the evidence of the sister, brother and cousin of Madam Wan was insufficient proof and that the cousin did not give credible evidence.  In my view, the Tribunal had only given its conclusions on the appeal, but had not explained the basis for the conclusions and finding that Madam Wan only came to Hong Kong in 1974.  

51.  In the first place, the Tribunal had not explained why the evidence of Madam Wan’s siblings and cousin are insufficient to prove the applicant’s claim.  While it said that the cousin did not give credible evidence, it did not indicate the basis for the conclusion on his credibility.  As for Madam Wan’s sister and brother, the Tribunal did not explain why it regarded their evidence as insufficient to prove the claim.  It is not known whether it was because the Tribunal also doubted their credibility or because it had reservation over the relevance or probative value of their evidence. 

52.  Secondly, the Tribunal simply did not even mention the evidence of Madam Wan herself.  It may be said that in concluding that she only came to Hong Kong on 7 August 1974, the Tribunal had impliedly rejected her evidence about her place of birth and residence during childhood.  However, given the importance of Madam Wan’s evidence to the appeal, the applicant is entitled to know that the Tribunal had addressed its mind to her evidence and had afforded it proper evaluation and assessment.  Fairness therefore requires the Tribunal to make express findings on her credibility and evidence, and to explain the basis upon which it reached its conclusion. 

53.  While I accept that there are cases in which the basis of the Tribunal’s conclusion may be quite obvious such that it needs not be expressly stated, this is not one of those cases.  As noted above, Madam Wan was not cross-examined by the representative of the Immigration Department.  It was also not put to her and the other witnesses that their evidence was untruthful, concocted or mistaken.  Madam Wan, her sister, brother and cousin are all in their 70s and 80s.  The sister and the cousin apparently do not enjoy good health.  They are testifying on matters that were more than half a century ago.   The absence of supporting documentation has to be considered against the fact that in 1928, it was not customary or common to register the birth, a fact that the Tribunal appeared to accept.  On taking a broad picture of the case, the basis of the Tribunal’s conclusions is plainly not obvious to the applicant or at all.

54.  Further, it has to be borne in mind that this is a case where the applicant’s claim and the reliability and the credibility of the witnesses falls to be assessed on a balance of probabilities.  In my view, there are at least two features in the evidence available before the Tribunal that are highly relevant and important to an objective assessment of the probabilities inherent in the applicant’s claim. 

55.  The first is that it is undisputed that Madam Wan had at least as early as 1974 claimed to the Hong Kong authority that she was born in Hong Kong. That was shortly after her arrival in Hong Kong and was the first available opportunity for her to report her place of birth.  There is no obvious motive or reason for her to give an incorrect account or to lie about her place of birth.  Since then, Madam Wan has consistently maintained that she was born in Hong Kong. 

56.  The second matter is that the Director does not dispute that: (1) The parents of the applicant’s mother were indigenous villagers, and had lived and died in Hong Kong; and (2) Wan Fook Ying and Wan Yau are the elder sister and younger brother of Madam Wan and they were both born and brought up in Hong Kong.  The question that has to be addressed is: Against these undisputed facts and considering that 1928 was a time of peace in Hong Kong, what is the probability of Madam Wan being born outside the village and outside Hong Kong.  In other words, is it inherently probable for Madam Wan’s mother to give birth to her second child in Hong Kong, as with the case of her first and third child?  Further, is it inherently probable for her, as an indigenous villager, to have left Hong Kong in 1928 and leaving her eldest daughter behind, to go to the Mainland to give birth to Madam Wan? 

57.  The Tribunal had put a considerable number of questions to Madam Wan, which apparently were to test or establish her memory and knowledge of Ma Liu Shui village and the nearby areas in Shatin.  This suggests that the Tribunal was focusing on whether she had lived in Hong Kong in her childhood.  By contrast, very little questions were put to the witnesses on the circumstances of her birth, which is an equally important aspect of the applicant’s claim.

58.  In my view, it is, to say the least, possible for the questions I have posed above to be answered in the applicant’s favour.  It is therefore important for the Tribunal to demonstrate in its reasoning that it had addressed its mind to these undisputed matters and had weighed and assessed them in finding that Madam Wan only came to Hong Kong in 1974 or in concluding that the applicant had not adduced compelling evidence to prove his claim.        

59.  I would additionally observe that in the certified copy of the abstract from the Marriage Register maintained by the People’s Commune of Huidong County (Bundle of documents p.1), Madam Wan’s name was recorded as “Chan Kau Mui” (陳九妹).  In the One-way Permit issued in 1974, her name was described as “Wan Kau Mui” (温九妹).  This is relevant to her case that after she was sold and taken in by the family in Huidong Province, her surname was changed and it was after she met up with her mother that she had her surname reverted to “Wan” again.  

60.  No doubt, it is for the Tribunal to making findings of fact and to determine the appeal on the basis of the findings.  It is not for the court in its supervisory jurisdiction to usurp that function.  However, the matters alluded to in the preceding paragraphs serve to show that the applicant’s claim is not obviously untenable or his witnesses’ evidence is on its own evidently incredible or unreliable.  It is therefore incumbent upon the Tribunal, and fairness requires it, to explain why it rejected the applicant’s claim and why it refused to act on the evidence and materials adduced by the applicant. 

61.  I am of the view that the Tribunal has failed to discharge its duty to give reasons for its decision.  On this basis, the Tribunal’s decision should be quashed.

Ground (2): The Director’s decision was irrational

62.  The crux of the applicant’s challenge to the Director’s decision is that the Director had given manifestly insufficient or no weight to two pieces of documentary evidence.  They are the identity card issued to Madam Wan in 1974 and the Certificate of Registered Particulars issued to her in 1996.  It is the applicant’s contention that they evidence Madam Wan’s place of birth to be Hong Kong. In Mr Pun’s submission, the fact that Hong Kong was recorded on the identity card is a direct indication that the relevant issuing authority had accepted this to be accurate.  As for the Certificate, he submits that the words “not verified” were put against the date of birth reported but not the place of birth is a strong indication of the latter’s accuracy.  He also relied on the fact that the information was certified by a Registration Officer and there is nothing to suggest that Officer was in error.

63.  The evidence filed on behalf of the Director shows that the Commissioner for Registration of Persons and the Registration of Persons Department, who were the relevant authorities, did not have to address the question of Madam Wan’s place of birth in issuing the identity card in 1974 and the Certificate in 1996.  Both documents only record what was claimed or reported by Madam Wan when she applied for registration and issue of identity card.  In Mr Li’s submissions, it is not open to the applicant to contend that the Director, who was separate from the Commissioner for Registration of Persons before 1997, had already accepted that Madam Wan was born in Hong Kong.

64.  I accept on the basis of the evidence filed on behalf of the Director that the process of issuing the identity card in 1974 did not involve the issuing authority making a decision on the veracity of the reported place of birth.  The applicant cannot say that the 1974 identity card shows that there had been an acceptance of her claim that Madam Wan was born in Hong Kong, not to say accepted by the Director.  It is also common ground that Madam Wan had not produced documents for verification of the information she furnished in 1974.  In my view, the identity card only records that Madam Wan had as early as 1974 reported that she was born in Hong Kong.  

65.  In the case of the Certificate of Registered Particulars, it is evident from paragraph 2 of the Certificate itself that the Registration Officer was only certifying the information furnished by Madam Wan in 1974.  He was not certifying the accuracy of the information furnished and reproduced in the Certificate.  The point is further made clear by section 10 of the Registration of Persons Ordinance (previously Regulation 23 of the Registration of Persons Regulations) and Regulation 22 of the Registration of Persons Regulations.  The former deals with the power to issue a Certificate.  The latter provides that the burden of proving the truth of the contents of an application for identity card and of the identity card itself lies on the applicant for the identity card or on any person alleging the truth of such contents.     

66.  As noted above, these two documents and other documents adduced by the applicant show that Madam Wan had as early as 1974 claimed to be born in Hong Kong and has always maintained that position.  This is of course a relevant consideration for the Director when assessing the reliability of her claim in the context of the application for certificate of entitlement.  As said before, there was no obvious motive in 1974 to give incorrect information about her place of birth.  That however is not the same as saying that the two documents show that the Director had accepted that Madam Wan was born in Hong Kong such that his decision to refuse the application for certificate of entitlement is Wednesbury unreasonable and irrational.  Accordingly, the challenge against the Director’s decision on the basis of ground (2) cannot succeed.

Conclusion

67.  For the above reasons, the application for judicial review is allowed to the extent that the decision of the Tribunal is quashed. 

68.  The applicant has sought a declaration that he is a permanent resident of Hong Kong by virtue of paragraph 2(c) of Schedule 1 to the Immigration Ordinance.  Clearly, the applicant’s entitlement to the declaration has to be based upon findings of facts and credibility.  That, however, is the task of the Immigration Tribunal.  The role of the court in judicial review proceedings is supervisory.  It should not assume the role of the decision maker.  I am therefore of the view that the appropriate course is to remit the matter to a differently constituted tribunal for fresh determination, pursuant to Order 53 rule 9(4) of Rules of the High Court. 

69.  I would additionally mention that, while the challenge against the Director’s decision fails, it is open to the Director, if he deems appropriate, to reconsider the application for certificate of entitlement in light of the additional materials the applicant has put forward since the initial application. 

70.  As to costs, having regard to the fact the applicant has succeeded against the Tribunal but failed in the challenge against the Director and that he is legally aided, I invite the parties to agree on an appropriate costs order.  Failing agreement, the parties may lodge with the court written submissions within 14 days after this Judgment is handed down. In respect of the applicant’s own costs, they are to be taxed under the Legal Aid Regulations.