RE WONG SHU HUNG

MP228/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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DECISION

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1. This is an application for leave to apply for judicial review of the Director of Immigration's decision to make a removal order, appeal against which was dismissed without a hearing by the Immigration Tribunal on the 13th of July 1984. I summarize the background to the application.

2. Mr. Wong came to Hong Kong in February, 1976. Previously he was in China where he married on the 24th of September 1978. According to his affirmation he and his wife had four children before coming to Hong Kong. The two oldest are the subject of this application, WONG Kwok-cheung and WONG Kwok-tai. In 1982 WONG Kwok-cheung and WONG Kwok-tai, who had not come to Hong Kong with their father, sneaked, to use Mr. Wong's own expression, across the border. They were followed shortly afterwards by their younger brother and sister WONG Kwok-kai and WONG Yuk-hai. According to Mr. Wong, on arrival in Hong Kong, they were taken to the Immigration Authorities and there registered.

3. Now a removal order has been made against the two older infants but not against the two younger ones. It appears that the Immigration Authorities were doubtful that the two applicants were indeed the natural children of Mr. Wong, and with good reason because at various times both Mr. Wong and his wife had informed the authorities that there were only two children born in China. They claim they feared that had they disclosed that the number was in fact greater it might have prejudiced their chances of remaining in Hong Kong. It was presumably for that reason and in the exercise of the discretion residing in the Immigration Officer that the two younger children WONG Kwok-kai and WONG Yat-hai had not been made the subject of removal orders, they being the children whose identities had been previously revealed. However that may be Mr. Lee who appears for the applicants was not prepared in support of his application to submit that there were any grounds which would have entitled any one of those children to remain in Hong Kong or to resist the making of removal orders against them. For my part and without hearing argument I do not know of anything in the Ordinance which would have entitled any one of those children to remain in Hong Kong other than by virtue of an exercise of discretion by the authorities in their favour.

4. The two children who are the applicants in this case appeal against removal order under section 53 of the Immigration Ordinance. The grounds upon which such an appeal can be made are set out in section 53(a). It is conceded by Mr. Lee that the notice of appeal did not set out either one of the two grounds which, if established, would have entitled the tribunal to reverse the decision of the Immigration Officer nor were the grounds as submitted ever supplemented by any further grounds or other facts from which the tribunal might have inferred that one of the two grounds existed. In the event the Tribunal dismissed the appeal without a hearing on the ground that none of the matters raised would entitle the applicants to succeed in the appeal. Mr. Lee very correctly says that it is impossible to impugn that decision on the information which the Tribunal had.

5. The application for leave to apply for judicial review is made on the grounds that the applicants were given insufficient opportunity to prepare themselves or to present material to the Tribunal. But so long as their grounds remained the same there was no basis for the appeal to be allowed no matter how much time had been available. However today, for the first time, Mr. Lee takes the point that by reason of the registration of the two children with the Immigration Authorities and the failure of the Immigration Department to act in the succeeding two years, there might be an implied permission by the Director to remain which would be a ground within section 53A(1b).

6. I have inquired as to whether or not it is not possible to raise that ground even after this interval of time with the Tribunal by way of appeal. I am told not. Consequently apart from judicial review the only remedy which Mr. Lee has left to him on behalf of these applioants is an appeal to the Governor under section 53 itself.

7. Now I am very doubtful as to the correctness of this decision but I have indicated that I will give leave for the application for judicial review to be made. The reason I do so is that it may just be possible for Mr. Lee to put together a case on the basis that the facts before the Tribunal did reveal the ground which he says is open, namely, an implied permission to remain, but I will make it plain that in giving leave I do not wish the applicants to feel encouraged or that their application is likely to succeed and I have only given leave because if the facts revealed in Mr. Wong and his wife's affirmations turn out to be right then, of course, it is a matter of very considerable concern that this family should be separated in the way which would follow upon the carrying out of the remoral orders.