DIRECTOR OF IMMIGRATION v. IMMIGRATION TRIBUNAL AND ANOTHER

HCAL 83/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 83 OF 1999

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J U D G M E N T

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1. The Applicant, the Director of Immigration, seeks by way of judicial review to quash a decision of the First Respondent, the Immigration Tribunal. The Immigration Tribunal has chosen not to be represented in this matter. The decision of the Tribunal, however, which is the subject of these proceedings, relates to an appeal by the Second Respondent, Gurung Kesh Bahadur ("Mr. Gurung") against an order that he be removed from Hong Kong. The Tribunal, by its decision, set that order aside. Mr. Gurung, therefore, has a very real interest in these proceedings and has been represented.

A brief history.

2. Mr. Gurung is a citizen of Nepal where he was born and raised. As a young man he joined the British Army, serving in the Gurkha Regiment, and it was as a member of the British Army that he first came to Hong Kong. He served here for three separate tours of duty, the final one expiring in 1994 when Mr. Gurung left the army. His discharge was apparently, in all respects, an honourable one.

3. It appears that, upon his discharge in 1994, Mr. Gurung returned for a time to Nepal but made two trips to Hong Kong in that year. On the second occasion, he lodged an application to take up residence so that he could go into business. That application was refused. However, in 1995 he was granted permission to remain in Hong Kong in order to be with his wife who, it seems, enjoyed (and continues to enjoy) resident status here.

4. It is not disputed that from then until the end of 1997 Mr. Gurung was ordinarily resident in Hong Kong and travelled from time to time in and out of the Territory. Nor is it disputed that, while in Hong Kong, Mr. Gurung prospered in business. According to Mr. Gurung's Notice of Appeal to the Immigration Tribunal, he originally started a restaurant business but had to close it as he was unable to obtain a liquor licence. He then opened an employment agency and set up a construction business. Both those enterprises still trade and it appears that the construction business has recently secured a number of large building contracts.

5. Having said that, Mr. Gurung's right to remain in Hong Kong has at all material times been limited to specific periods of duration. His first approval to remain in Hong Kong as a dependent of his wife was limited to a time span of 12 months. That approval, however, was extended for further set periods, the last extension being granted on 2nd July 1996 for a period of time expiring on 9th January 1999. An examination of Mr. Gurung's Nepalese passport shows a number of endorsements made by immigration officials when he returned to Hong Kong after trips abroad. These endorsements consist of an immigration chop mark bearing the date of return to Hong Kong and above that chop the words: "Permitted to remain until 9th January 1999".

6. On 28th October 1997, Mr. Gurung made a short visit to Nepal and Thailand. He flew back to Hong Kong on 4th November 1997 but on this occasion he encountered difficulties with the officers of the Director of Immigration. It appears that - in broad terms at least - these difficulties centred on two areas of concern, the one related to a travelling companion and the other to certain personal details appearing in his passport.

7. According to immigration officials, Mr. Gurung was travelling with a woman, a Nepalese national, who said that she had paid him a substantial sum of money in return for which Mr. Gurung would assist her to enter Hong Kong and obtain illicit employment. Suffice to say, such allegations have been denied by Mr. Gurung.

8. It appears, however, that during the course of investigations it was discovered that Mr. Gurung had earlier travelled in and out of Hong Kong on a passport that bore the name Pun Tej Prakash rather than Gurung Kesh Bahadur and that the dates of birth had been different. The discrepancies were accepted by Mr. Gurung who explained that their cause was purely innocent. The first name had been the name given him in the British Army, he said, the second name was his true name registered as such in Nepal. As for the difference in the dates of birth, this had been the result of a bureaucratic muddle in Nepal which, despite his best endeavours, he had been unable to resolve. The immigration officials did not accept these explanations and Mr. Gurung was prosecuted for offences under the Immigration Ordinance, Chapter 115 ("the Ordinance"). The matter came to trial in February 1998. Mr. Gurung was found not guilty, the court accepting that the passports used by him had been valid documents and that there was, as he protested, an innocent reason for the discrepancies in his personal data.

9. By way of a postscript to the factual outline of the immigration investigation, it should be said that seemingly the immigration authorities were also concerned that Mr. Gurung had entered into a bigamous marriage. Mr. Gurung admitted that he had taken a second wife in Nepal but said that polygamy was lawful in that country and that he was not, therefore, open to criticism in that regard.

10. In summary, Mr. Gurung has at all times been of the belief that there is no just cause for the Director of Immigration to refuse him the privilege of continued residence in Hong Kong. On 14th December 1998, however, the Director of Immigration issued a removal order, the effect of that order being Mr. Gurung's formal expulsion from Hong Kong. Mr. Gurung immediately appealed. His Notice of Appeal bears the date of 27th January 1999, that seemingly being the same day on which the removal order was served upon him.

11. On 12th May 1999, the appeal was heard by the Immigration Tribunal. Its determination, which is the subject of these judicial review proceedings, was given that same day. The written determination, made pursuant to section 53D of the Ordinance, recorded that the appeal had been brought on the basis that, at the date when the removal order had been made, Mr. Gurung had the permission of the Director of Immigration to remain in Hong Kong. As for the decision itself, that was couched in the following terms:

"On 12th May 1999, the Tribunal heard your appeal against the removal order and has determined pursuant to section 53D that on the facts of your case: -

disregarding the effect of the removal order under section 19(4) of the said Ordinance, you do have the permission of the Director of Immigration to remain in Hong Kong.

Accordingly, the Tribunal has allowed your appeal and rescinded the removal order made against you."

12. It is the contention of the Director of Immigration that this decision - ostensibly based on facts pertinent to Mr. Gurung - was one that no Immigration Tribunal, acting judicially and properly instructed as to the relevant law, could properly have reached.

The constitution of the Immigration Tribunal.

13. The Immigration Tribunal is a creature of the Ordinance, its powers being defined by that statute.

14. A person against whom a removal order has been made may appeal to the Tribunal against the issue of that removal order but may only do so on limited grounds. These grounds are set out in section 53A of the Ordinance and are that, on the facts of the case: -

" (aa) he enjoys the right of abode in Hong Kong; or

(ab) he has the right to land in Hong Kong by virtue of section 2AAA; or

...

(b) he had at the date when the removal order was made the permission of the Director of Immigration to remain in Hong Kong."

15. Section 53D of the Ordinance sets out the powers of the Immigration Tribunal to determine appeals made to it. In that regard subsection (1) reads: -

"On an appeal under section 53A against a removal order -

(a) where the Tribunal determines that on the facts of the case as it finds them the appellant -

(ia) does not enjoy the right of abode in Hong Kong; and

(ib) does not have the right to land under section 2AAA; and

...

(ii) does not, disregarding the effect of the removal order under section 19(4), have the permission of the Director of Immigration to remain in Hong Kong.

it shall dismiss the appeal; and

(b) in any other case, subject to subsection (3), it shall allow the appeal and rescind the removal order."

16. In Mr. Gurung's case, he appealed on one ground only; namely, that at the date when the removal order was made on 14th December 1998 he had the permission of the Director of Immigration to remain in Hong Kong. In my judgment, on a plain reading of the Ordinance, his appeal was not capable of encompassing the broader merits of why, in any event, he should be allowed to stay in Hong Kong.

17. Similarly, in my judgment, the powers of the Tribunal were equally confined. The Tribunal had one matter before it for consideration; namely, whether on 14th December 1998 Mr. Gurung did or did not have the permission of the Director of Immigration to remain. If it found that he did not have such permission it was bound by the statutory confines of its jurisdiction to dismiss the appeal. The determination of the Tribunal was not capable of encompassing the broader merits of why, nevertheless, Mr. Gurung should or should not be allowed to remain in Hong Kong.

18. Whether or not on 14th December 1998 Mr. Gurung did have permission to remain in Hong Kong was a question to be decided according to the relevant facts. As was said by Mantell J. in Re Wong Shu-hung and the Immigration Tribunal [1985] HKLR 463 at page 467:

"Of course that might be done by express words: it might be done by the issue of an entry permit; or it might be implied from words or conduct falling short of an express permission."

The evidence before the Tribunal.

19. A consideration of the record of proceedings indicates that essentially the Tribunal had before it the factual matters which I have outlined earlier in this judgment. There was no evidence that Mr. Gurung had, by express words, been assured at any time that he would be permitted to re-enter or that he would have no problem in doing so. Nor was there any evidence of words spoken or representations made by individual officers which, while not express, nevertheless implied such permission.

20. The Tribunal gave no reasons for its decision but it appears manifest that the decision to set aside the order of removal was to a material degree based on the Tribunal's interpretation of the relevant provisions of the Ordinance and, in light of Mr. Gurung's circumstances, an implied permission of some kind arising out of those provisions. A central question is, therefore, whether a tribunal, acting judicially and properly instructed as to the law, could have found such an implied permission.

A consideration of the Ordinance.

21. Leaving aside certain special exemptions, none of which apply to Mr. Gurung, section 7 of the Ordinance directs that persons who do not enjoy right of abode may only land or remain in Hong Kong with the permission of the Director of Immigration acting through his officers and assistants. Section 11 of the Ordinance allows for conditions to be imposed. In this regard, subsection (2) reads: -

"(2) Where permission is given to land or remain in Hong Kong, an immigration officer or immigration assistant may impose -

(a) a limit of stay; and

(b) such other conditions of stay as an immigration officer or immigration assistant thinks fit, being conditions of stay authorized by the Director, either generally or in a particular case."

22. In Mr. Gurung's case, his ability to remain in Hong Kong was at all material times restricted by conditions that amounted to time constraints. When he flew out of Hong Kong on 28th October 1997 he had been given permission to remain in Hong Kong until 9th January 1999. He was at that time, therefore, well within the constraints of his time limitation. However subsection 10 of section 11 states that: -

"Any permission given to a person to land or remain in Hong Kong shall, if in force on the day that person departs from Hong Kong, expire immediately after his departure.

23. The true meaning and intent of this subsection has been at the heart of these judicial review proceedings.

24. First, in my view, it is important to note that the word "departure" is given no special definition in terms of the Ordinance and must therefore it must be given its ordinary meaning; namely, the "action of going away" or "leaving" a place (The New Shorter Oxford Dictionary, 1993, ed.). There is nothing in that definition to suggest an element of permanence and none was advocated by counsel. Accordingly, I am satisfied that the word "departure" as used in the subsection means any leaving of Hong Kong whether that be permanent or temporary, for a long duration or a short one.

25. By way of general principle, how is the interpretation of the subsection to be approached? If there is nothing to modify or qualify the language which a statute contains, the words must be construed according to their ordinary and natural meaning. In short, the court is bound by the clear, primary meaning of the words and it is not appropriate to attempt to define them further by means of judicial interpretation. Of course, meaning is dictated by context and due regard must be had to the subject matter and object of the legislation. However, in the face of plain and clear language, speculation as to the intention of the legislation is not permissible. In this regard, Halsbury's Laws of Hong Kong, Vol. 23, Statutes [365.043] reads: -

"If the result of the interpretation of a statute according to its primary meaning is not what the legislature intended, it is for the legislature to amend the statute construed rather than for the courts to attempt the necessary amendment by investing plain language with some other than its natural meaning to produce a result which it is thought the legislature must have intended."

26. In light of this, in my judgment, the meaning (and intent) of section 11(10) is clear. If a person who resides in Hong Kong in terms of a permission to remain leaves the Territory then his or her permission to remain automatically expires. This is so even if the permission to remain still has a period of time to run. Accordingly, when the person returns to Hong Kong and wishes to resume residence, effectively that person is seeking a new permission to do so and it lies within the discretion of the immigration authorities whether to grant that permission or not.

27. Mr. Harris, who appeared for Mr. Gurung, argued that such an interpretation could not possibly reflect the intention of the legislation. If that were the case, it would put at risk the orderly and peaceful residence in Hong Kong of so many of its expatriate residents, people who conduct business here, who constantly travel out of the Territory and who legitimately expect to be able to return because they have already, in clear terms, been granted permission to stay upon fixed conditions or for a fixed period of time. Mr. Harris argued that this court should not restrict itself to a "strict and literal" interpretation of section 11(10) but should rather seek a purposive construction. Otherwise, he argued, expatriates residing in Hong Kong would be liable to be refused entry "at will" by the immigration authorities.

28. What then did Mr. Harris suggest should be the result of such a purposive interpretation? It was his contention that the granting of a permission to remain in Hong Kong upon fixed conditions created a "continuing permission" to reside here for so long as those conditions remained in effect. While, therefore, the permission to remain may be said to "terminate temporarily" when the person leaves Hong Kong, when that person returns, the permission "automatically revives" unless there is some change in circumstances which undermines the validity of the original permission. On the basis of that interpretation, said Mr. Harris, when Mr. Gurung returned to Hong Kong on 4th November 1997, his permission to remain until January 1999 automatically revived and the immigration authorities had no power in terms of the Ordinance to refuse him the right to resume residence unless it was demonstrated that he had done something which undermined the validity of his original permission. Mr. Harris said that the immigration authorities may initially have had concerns of the kind that I have described earlier in this judgment but they were later shown to have been mistaken in those concerns. Accordingly, there had been no change in circumstances which undermined the validity of Mr. Gurung's original permission and that permission had therefore revived.

29. I regret that I am unable to find substance in these submissions. Section 11(10), in my view, is plain in its language when it says that, immediately upon departure, any permission to remain in Hong Kong shall expire. The word "expire" means to "bring to an end", to "die" or "conclude", to "make invalid or void" (see The New Shorter Oxford Dictionary, 1993 ed.) I can find nothing in such meanings to suggest a form only of suspension or some inherent implication of revival. Why in any event would the legislature wish such a permission to go into a form of suspension when the person was absent from Hong Kong and, therefore, outside of the jurisdiction? In my judgment, the subsection means exactly what it says and I am bound by that plain meaning.

30. What then of the effect on Hong Kong's expatriate community? Is it placed at some unintended risk that could never have been intended by the legislature? If there is such a risk, I believe it is theoretical rather than practical. The immigration authorities do have the right to question persons returning but, in the absence of new factors intervening, with an investigation already having taken place in order to grant the original permission, there will rarely be the need for a further investigation. Permission to stay upon the terms prevailing immediately before departure will almost invariably, therefore, be the result of the exercise of an immigration officer's discretion. However, should immigration officers exercise their discretion in an irrational manner or in a way that is "Wednesbury" unreasonable then such actions may be challenged in the courts.

31. Moving to other submissions made by Mr. Harris, if he has suggested that the revival of the permission is brought about by the exercise of some legitimate expectation, I regret that, in my opinion, the plain words of section 11(10) defeat him.

32. An authority which, although emanating from the provisions of a different statute, is, in my opinion, helpful in principle is Secretary of State for the Home Department v. Mowla [1991] Imm AR 210. Here the Court of Appeal held that 'visa exempt stamps' in the passports of persons given leave to remain in the United Kingdom for a limited period of time did not amount to a representation that the passport holder, if he or she left the country and returned before the date of that limited leave had expired, would be granted leave to re-enter. Such stamps of themselves did not create a legitimate expectation that the passport holder would be granted leave to re-enter. Gibson L.J., in his judgment at page 228, said:

"Lastly, as to the concept of legitimate expectation, I have difficulty in seeing how it can properly provide the basis in the law relating to immigration for any substantive right, irrespective of the procedural propriety of the making of the decision to refuse leave to enter, by which the passenger can claim a right to enter. The decision to refuse entry may be open to attack upon Wednesbury grounds including irrationality, ie 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: per Lord Diplock CCSU v Minister for the Civil Service [1985] AC 374 at page 410G. If the decision of the immigration officer, however, cannot be shown to have been unlawfully made or irrational and if it was made in accordance with the procedure and rules laid down by Parliament, I do not accept that something said on an earlier occasion by an official of the Home Office can be held to have given rise to a right that the immigration officer must grant leave to enter."

33. Applying those principles, I do not see how an earlier grant of a permission to remain, which clearly expired upon Mr. Gurung's departure from Hong Kong, can be held to have given rise to a right that the immigration authorities must grant him leave to re-enter.

34. If there is no legitimate expectation that binds the Director of Immigration can it be said that, if there exists a valid permission to remain in Hong Kong immediately prior to departure, there must exist an implied permission to return upon the terms and conditions of that original grant? In my judgment, it would strain the plain meaning of section 11(10) beyond permissible bounds to find any such implication. If that implication was to be made, why have section 11(10) in the statute in the first place? Would it not be easier simply to say that permissions to remain will not be affected by any travel in and out of Hong Kong provided the original conditions of that permission are not in some way affected? For that, as I see it, is essentially the meaning which Mr. Harris wishes me to give to section 11(10).

35. I am satisfied, therefore, that the plain wording of section 11(10) leaves no room for the interpretations urged upon me by Mr. Harris. Accordingly, in the absence of factual evidence that Mr. Gurung received assurances, express or implied, from the immigration authorities before his departure that he would be given permission upon his return to resume his residence in Hong Kong, it is clear that Mr. Gurung's permission to remain in Hong Kong until 9th January 1999 expired when he flew out of Hong Kong on 28th October 1997.

Mr. Gurung's return to Hong Kong.

36. It appears that when Mr. Gurung flew back to Hong Kong on 4th November 1997 he was questioned by the immigration authorities. It is not disputed that the authorities possessed such power. In this regard, section 4(1) of the Ordinance reads:

"For the purposes of this Ordinance, an immigration officer or immigration assistant may -

(a) ... examine any person on his arrival or landing in or prior to his departure from Hong Kong, or if he has reasonable cause for believing that such person landed in Hong Kong unlawfully, at any time;"

37. As to the powers of an officer who has conducted such an examination, section 11(1) reads:

"An immigration officer or immigration assistant may, on the examination under section 4(1)(a) of a person who ... may not land in Hong Kong without the permission of an immigration officer or immigration assistant, give such person permission to land in Hong Kong but an immigration officer only may refuse him such permission."

38. It does not (at this time) appear to be disputed that on 4th November 1997, in terms of section 11(1), Mr. Gurung was refused permission to land. Indeed, he was prosecuted for the offence of making false representations to an immigration officer contrary to section 42 of the Ordinance. Nor has there been any suggestion that at any time after 4th November 1997 the immigration authorities, by formal documentation, express word or by implication, gave Mr. Gurung permission to remain in Hong Kong.

39. On 14th December 1998 a removal order was issued by the Deputy Director of Immigration in terms of section 19(1)(b)(i) of the Ordinance. It was issued on the grounds that Mr. Gurung was a person who had been refused permission to land. It does not (at this time) appear to be disputed that the removal order was issued and served in accordance with the procedural provisions of the Ordinance.

The nullity issue.

40. Mr. Harris, who also represented Mr. Gurung before the Immigration Tribunal, submittedinter alia that the refusal of permission to land made by the immigration authorities on 4th November 1997 had been a nullity as it had been based on a fundamental error of fact; namely, that Mr. Gurung had made false representations to an immigration officer when it was shown at Mr. Gurung's criminal trial that he had not done so. If the refusal of permission to land had been a nullity, he argued, then there was no power to issue a removal order springing from that refusal.

41. It is not necessary, for the purposes of this judgment, to rule whether these submissions were good in law. Assuming, however, that they were good and could properly be accepted by the Immigration Tribunal, how did that assist the Tribunal in discharging its statutory function? It was the function of the Tribunal to decide one question only: whether, at the time the removal order was issued (whether valid or not), Mr. Gurung had the permission of the Director of Immigration to remain in Hong Kong. The fact that the refusal of permission to land was a nullity did not mean ipso facto that somehow Mr. Gurung now had permission to land, not when he had left Hong Kong and, in terms of section 11(10) of the Ordinance the permission to land in existence immediately prior to his departure had thereby expired.

42. Being aware that a nexus was required, Mr. Harris submitted that, in the absence of a valid refusal of permission to land, Mr. Gurung had an implied permission to remain in Hong Kong. That implied permission, he argued, arose from the permission to land in existence immediately prior to his departure which, if his argument was to succeed, had not therefore expired on his departure but had only lapsed temporarily and was revived - if only by implication - on his return. That, however, is an argument which I have already found to be unsustainable in law.

Conclusion.

43. Having regard to the statutory limits of the Immigration Tribunal, I am bound to say, with respect to the Tribunal, that, in my judgment, it could only have made the finding it did on the facts then before it based on a misconception of the law. If not, then on the facts before it, I am satisfied that no tribunal acting judicially and properly directed on the law, could have come to that finding. In the circumstances, this Court must intervene. That this Court has the power to do so is supported by a long line of authority. In this regard, for example, see Edwards (Inspector of Taxes) v. Barstow [1956] AC 14.

44. Mr. Harris has urged me to exercise the undoubted jurisdiction which I have in judicial review matters in favour of Mr. Gurung. I do not see, however, that this is a proper cause for the exercise of any such discretion. What has been challenged is only the lawfulness of the Tribunal's finding and my orders must be restricted to this. I do not see that I can properly range further afield without running the danger of usurping the powers of the Immigration Tribunal and/or the immigration authorities.

Orders.

45. My orders, therefore, are as follows:

1. That there be an order of certiorari to remove into this Court and to quash the decision of the First Respondent, the Immigration Tribunal, made on 12th May 1999.

2. That there be an order of mandamus to oblige the Immigration Tribunal to reconsider its decision in accordance with law.

3. That there be an order nisi awarding costs to the Applicant, the Director of Immigration, to be taxed if not agreed, such costs to be paid by the Second Respondent, Gurung Kesh Bahadur alias Pun Tej Prakash.