CHAN SAU MUI AND OTHERS v. DIRECTOR OF IMMIGRATION

IN THE COURT OF APPEAL

1992, No. 60 (Civil)

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J U D G M E N T

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Sir Derek Cons, Ag. C.J.:

1. These two appeals which were, on 15th May, ordered to be heard one after the other - (a further order for consolidation would appear to be a typographical slip copied from the summons) - arise from proceedings for judicial review which presently stand adjourned before Liu, J. It will be convenient first to set out the background.

History

2. The 2nd applicant Lam Sai Lam ("the husband") was born in China in 1948. In 1983 he came to Hong Kong, obtained employment as a construction worker and was issued with an identity card.

3. In 1985 he married the 1st applicant Chan Sau Mui ("the wife") in China and subsequently had two children by her, both being born in China. In April 1990 the wife, again pregnant, entered Hong Kong illegally. She gave birth to a girl Pik Ha, one of the 3rd applicants, some ten days later.

4. On 13th October the same year the husband slipped and fell on a construction site, sustaining injuries to his spine and right knee, assessed respectively as 158 and 5% permanent disabilities. He can no longer ascend or descend stairs properly, squat or lift heavy loads. He, it is said, as well as the children, is in need of the care and attention of his wife.

5. On 3rd July 1991 the wife gave birth to a boy Tsz Wa, the other of the 3rd applicants. On 4th September Tsz Wa was sick. The whole family took him to see a doctor in Lam Tin, but on the way were intercepted by the police. The wife and the two children were arrested. A week later they were released on bail, for officers of the Immigration Department to make their investigations. In early October the Immigration Department advised the husband that the Department accepted Hong Kong birth for the two children, but that the wife would have to be repatriated. The husband was later given a Removal Order dated the 24th of that month. He lodged an appeal and sought immediate help from the Director of Legal Aid. The appeal was dismissed on 14th November and it is accepted that no challenge can be mounted in that respect.

6. On 21st November the Director of Legal Aid, through a Senior Legal Aid Counsel, wrote to the Director of Immigration referring to the disabilities of the husband, enclosing a recent medical report, and also to the traumatic effect which arrest and separation from her mother had had upon the daughter, enclosing also a psychological report which covered the whole family. The letter urged the Director of Immigration to exercise his discretion under s. 13 of the Immigration Ordinance, Cap. 115, and allow the wife:

"to stay in Hong Kong for 6 months initially and her case can be reviewed at the end of the said period. If the condition of the daughter and Mr Lam improve at the end of the said period, Madam Chan could then return to China."

7. As a result of the letter staff of the Immigration Department made initial enquiries, details of which, together with the two reports, were entered in the wife's case file and passed to a Deputy Director of Immigration for consideration. His conclusion is set out in his affidavit filed below:

"After considering the additional information on Madam Chan's circumstances including the medical reports on the conditions of Madam Chan's husband, I decided on 22nd January, 1992 to maintain my decision made on 21 October, 1991 to order the removal of Madam Chan."

The Litigation

8. On 1st February the applicants gave notice of an application for leave to apply for judicial review. The relief sought included:

"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 his discretion under S13 of the Immigration Ordinance (Cap.115).

2. Mandamus directed to the Director of Immigration directing him to exercise his discretion under S13 of the Immigration Ordinance to allow CHAN SAU MUI, the 1st Applicant. herein to stay in Hong Kong for a temporary period of 6 months."

9. The second paragraph indicates a clear misunderstanding of the role of the court in proceedings of this kind and so before we embarked formally upon the hearing of these appeals Mr. McCoy, who appears for the applicants, was granted leave to amend to request that the Director be directed merely to "re-exercise his discretion" under the section. I take this to mean that he should re-consider whether or not to exercise his discretion. The ground on which the relief was sought was put simply that his refusal:

"is Wednesbury Unreasonable."

10. The application was supported by affirmations from the wife and her husband detailing the impossibility of the husband's looking after the two children in Hong Kong should the wife be repatriated to China. The affirmation of the wife contained the sentence:

"We have no relative to assist us and no money to employ baby-sitter."

and that of the husband:

"I also have no close relative in Hong Kong who will assist me in taking care of my children."

Neither affirmation was of course before the Deputy Director in January.

11. Leave to apply for judicial review was granted immediately by Hooper, J., and notice of motion filed accordingly 11 days later. It was set for hearing on 3rd April. Having regard to the comments in R. v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310 the Deputy Director thought it appropriate to file an affidavit in reply.

12. Two weeks before the hearing was due to commence the applicants sought discovery, and subsequently inspection, of effectively all documents in the possession of the Director of Immigration which related to the family. The application came before Liu, J., four days prior to the hearing and was dismissed following argument lasting most, if not all, of the day. It is against his refusal to order discovery that Appeal No. 70 is to some extent brought.

13. On the day before the hearing the applicants filed a second application:

1.    to amend the grounds on which relief is sought by adding:

3.    to be at liberty to show to the judge video tapes illustrating the physical condition of the husband and the daily life of the applicants, if the judge so thought fit.

14. The judge heard arguments upon these matters throughout the first day scheduled for the hearing. Item No. 3 appears to have been abandoned. No. 1 was dismissed by the judge, taking the view that the addition of the further grounds suggested was unnecessary in that they were already sufficiently comprised within the rubric of Wednesbury unreasonableness.

15. With respect to the learned judge I disagree. I take Wednesbury unreasonableness, as I ventured to suggest in my judgment in Nguyen Ho and Others v. Director of Immigration and Another [1991] 1 HKLR 576, with which my brothers then agreed, to mean and to mean only what, for example, Lord Diplock in C.C.S.U. v. Minister for Civil Service [1984] 3 WLR 1174 at 1196 defined as:

"a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

Other definitions are conveniently collected by Lord Lowry in R. v. Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 at 764.

16. To include within Wednesbury unreasonableness other matters which might justify judicial review, especially without particularization, can only lead to confusion. With that in mind Mr. McCoy was encouraged at the outset of the appeal to amplify the grounds on which the applicants seek relief, and which now, with the leave of this court, stand amended to include the three further grounds that:

"2.    The Director of Immigration has failed and/or neglected to take into consideration or sufficient consideration of the interest rights and position of the minor Applicants herein, in that they have a right of abode in Hong Kong.

3.    The Respondent's decision and decision-making process was predicated on an erroneous factual basis, namely that the family members of 1st Applicant mentioned in Para. 3 of the affidavit of John Yeung Hin Chung of 26th March 1992 were available to give assistance in case of need, whereas in truth they were not.

4.    The Respondent's decision and decision-making process was flawed as the Respondent failed to adequately ascertain and satisfy himself of the true circumstances of alleged family support available to the Appellants."

17. The judge also rejected the application to adduce further evidence. He held, rightly in my view, that the evidence did not go to a question of jurisdiction, one of the heads recognised by R. v. Secretary of State for the Environment ex parte Powis [1981] 1 WLR 584; furthermore, that even if admitted, it would not resolve what he saw as a factual conflict within the affidavits, namely the question of family support. He felt it unnecessary therefore to consider the position with regard to what might, or might not, be new material introduced by the Deputy Director: see Order 53 rule 6(2). It is against the judge's refusal to admit the further affirmation that the remainder of the Appeal No. 70 is brought.

18. Having thus failed on one tack, when the hearing resumed after the weekend the applicants immediately tried another, requesting that the Deputy Director be ordered to attend for cross-examination on the question of family support. After two days of submissions their request was granted, and it is against that order that the Director of Immigration now appeals, by Appeal No. 60.

The Appeals

19. As I understand Mr. McCoy's argument in relation to the three questions raised by the two appeals, it rests exclusively upon a single sentence contained in para. 13 of the Deputy Director's affidavit:

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

Implicit therein, Mr. McCoy contends, is the suggestion that if necessary the husband and children would be able to turn to the said relatives for help or assistance of some kind; that is sufficient to justify the reliefs now sought, because either the Deputy Director made no enquiries at all or, having done so, made a material error of fact in the assessment of the results; these facts will be established by discovery or by the cross-examination of the Deputy Director and be supported by the affirmation of the husband.

20. I pause here to observe that this approach cannot possibly have justified the request for discovery and inspection when it was first made by the summons of 20th March, for the Deputy Director's affidavit was not sworn until six days thereafter.

21. Mr. Graham, for the Director of Immigration, in reply contends that there is no duty on the Director to do more than consider what is actually put before him and that errors of fact are not amenable to judicial review.

22. There has been little discussion before us as to the first point. The only authority to which we have been referred is found in the speech of Lord Diplock in Secretary 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?"

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.

23. As to the second point, in the Nguyen Ho case, this court, relying upon observations of Salmon, L.J., and Lord Wilberforce, in the Tameside case and of Sir Robin Cooke in Daganayasi v. Minister of Immigration [1980] NZLR 131 and in New Zealand Fishing Industry Association Inc. v. the Minister of Agricultural and Fisheries [1988] 1 NZLR 544, accepted judicial review would be appropriate where the decision-maker had made a material error of fact, provided that:

"... it must be something that is plainly wrong or, as the judge below put it, 'established unassailably to be erroneous'."

24. Mr. Graham suggests that our decision has been effectively overruled by more recent decisions of higher authority, and he relies particularly upon the speeches of Lord Ackner in R. v. Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 at 757 and of Lord Templeman in R. v. Independent Television Commission ex parte TSW Broadcasting Ltd., unreported, 26th March 1992.

25. On the interesting question of whether this court was tempted in Nguyen Ho to go too far we have had full and helpful arguments from both counsel. Nevertheless, for my part, I would prefer not to attempt its resolution until it becomes necessary to do so. That is not the present case. I can discern nothing in the instant circumstances which in my view could even remotely be said to bring them within the principle we then ventured to endorse. Firstly the fact in question has to be a fact of a kind which, as Wylie, J., observed in Hawkins v. Ministry of Justice [1990] 3 NZLR 486 at 497:

"are objective in their nature, independently ascertainable or measurable".

A good example is to be found in Hollis v. Secretary of State for the Environment (1982) 47 P&Ch 351 where the Secretary of State, and the Inspector holding the enquiry, wrongly believed, respectively, that the site in question "had never been included in any green belt proposals" or "had never formed part of a green belt". Secondly the court has to be able to say that the decision-maker's concept of the fact is plainly or unassailably wrong.

26. In my view the question of family support fails to meet either criteria. It is not something which can be independently ascertained or measured by the court. It is something to be assessed, having regard to the particular circumstances and the Director's knowledge of traditional family responsibility in this jurisdiction. Nor would it be possible to say that his assessment was plainly or unassailably wrong. There is room for divergence of opinion as to how far the family in question might be constrained to act if eventually the husband and children were in fact left on their own here.

27. For these reason the three interlocutory reliefs sought by the applicants would inevitably lead the judge into areas beyond his jurisdiction. He was therefore in my view right to reject the applications for discovery and to adduce further evidence, wrong to order cross-examination of the Deputy Director. I would allow the appeal of the Director of Immigration and dismiss that of the applicants.

Nazareth, J.A.:

28. I agree. Clearly ofr the reasons succinctly given by my Lord the acting Chief Justice, the appeals must be resolved in favour of the Director of Immigration. I do not think I could add anything useful to those reasons.

29. Likewise, notwithstanding the indication given by Mr. Graham that other challenges of similar decisions of the Director of Immigration are expected on like grounds, I, too, am not persuaded that his invitation to review what this court held in Nguyen Ho should be accepted in the present appeals.

Bokhary, J.:

30. I respectfully agree that the Director of Immigration's appeal must be allowed while the family's appeal must be dismissed.

31. As the House of Lords has emphasised in a number of recent decisions (including one as recent as their Lordships' as yet unreported decision in Reg. v. Independent Television Commission ex parte TSW Broadcasting Ltd decided on 26th March this year) judicial review is not to be equated with an appeal. But that is not inconsistent with the judgment of this Court in Nguyen Ho where Sir Derek Cons, V.P., said (at p. 583 C-E) that:

"... if the Court may properly interfere when the inferior tribunal has not taken into account some matter which it should have done, the Court must also be able to do so when the inferior tribunal has got that matter wrong."

32. If that statement needs support, I would venture to support it by this example. Take a decision affecting a young child. Is it to be said that it can be reviewed if the decision maker, knowing the child's tender age, left it out of account; but not if he mistakenly believed the person affected by his decision to be an adult? I do not think so. Such an error would come within the formula "misunderstanding or ignorance of an established and relevant fact" used by Scarman, L.J., in Secretary of State for Education and Science v. Tameside Metropolitan Borough Council at p.1030 E in describing one of the situations within the scope of judicial review.

33. A recent statement to the same effect is this one made by Dillon, L.J., in Reg. v. Secretary of State for the Department of Environment ex partes London Borough of Islington and The London Lesbian and Gay Centre, 19th July 1991 (unreported) at pp. 11-12:

"Moreover there are many cases of judicial review where the whole issue turns not on the terminus but on whether the decision maker has followed the correct route or procedure in reaching the terminus, e.g. where it is claimed that a decision which might have been reached legitimately has been reached unfairly because the decision maker has got the relevant facts significantly wrong."

34. It would, in my judgment, be going too far to say that no mistake of fact on the part of a decision maker can ever be brought within the scope of judicial review. Certain such mistakes can. Two conditions must be satisfied. First, it must be obvious - either because it is not denied or because the denial is palpably untenable - that the decision maker has made a mistake of fact. Secondly, it must also be obvious that the fact was of such importance that the decision might well have gone the other way if the decision maker had not been mistaken about it. If those two conditions are satisfied, the court can quash the decision by way of certiorari and, by way of mandamus, compel a reconsideration. That does not involve the court in the evaluation of evidence or the substitution of its decision for that of the decision maker. All it means is that the court will not shut its eyes to the obvious.

35. Turning to the facts of the present case, I begin by noting the issue on which discovery and leave to file further evidence were refused and leave to cross-examine was granted. It arises in this way. In paragraph 7 of her affirmation of 11th February 1992, the wife said:

"We have no relative to assist us and no money to employ baby-sitter".

And in paragraph 21 of his affirmation of the same date, the husband said:

"I have no means to engage a baby-sitter. I also have no close relative in Hong Kong who will assist me in taking care of my children"

But in paragraph 13 of his affidavit of 26th March 1992, Mr. John Yeung, the Deputy Director of Immigration, said:

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

The order for cross-examination grants the family leave to cross-examine Mr Yeung on his affidavit of 26th March 1992, "on the aspect of family support".

36. It is not disputed that the relatives mentioned by Mr. Yeung are in Hong Kong. Rather, the argument advanced on behalf of the family runs thus. Mr. Yeung is asserting that they can be counted on to help the husband to look after the children if the wife is sent back to China. But they cannot. So he has got those facts wrong. And discovery, further evidence and cross-examination will show that he has got them wrong.

37. To begin with, I do not read Mr. Yeung's affidavit that way. It seems to me that, by referring to family service agencies and the Social Welfare Department, he has made this clear. He realises that the relatives in question may or may not be counted on. And he has considered what the position would be if the wife is sent back and the relatives turn out to be of no help.

38. But what if Mr. Yeung is indeed asserting what the family contends that he is asserting? Let us assume that for the moment. On such assumption, the Director of Immigration would have proceeded on a view of the facts which the family says is erroneous. But which side is right is not obvious. And to decide that the court would have to do something even more clearly impermissible than arrogating to itself appellate jurisdiction in respect of the Director of Immigration's decision. For it would, in effect, have to try the issue, usurping his role and turning an administrative function of his into a judicial one of its. I do not view that as permissible in the present state of the law's development. And the effect of granting discovery, leave to file further evidence and leave to cross-examine can only be to further such usurpation. That is sufficient to dispose of these appeals in favour of the Director of Immigration and against the family however much one may sympathise with them or any family in their unfortunate position.

39. Before concluding this judgment, I would like, in fairness to the learned judge, to acknowledge that he had far less time to form his views than we have had to form ours.