TSUI SIU WAI v. DIRECTOR OF IMMIGRATION

1994, MP No.1665

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is an application by the applicant seeking a judicial review of 2 decisions of an Immigration Officer made on 16th June 1994, namely, refusing the applicant permission to land in Hong Kong and detaining him pending removal.

The facts

2. The applicant was a Chinese national who was previously resident in China. According to him, he applied to the Public Security Bureau, Exit and Entry Control Authority in Henan Province, China for and was issued a One- way Chinese Exit Permit to Hong Kong No.0399613 on 28th July 1993. This was exhibited as A-1. On 7th August 1993, he departed from Shenzhen SEZ and entered Hong Kong through Lowu Immigration Control Point. On the basis of this One-way Chinese Exit Permit, he was granted permission by an Immigration Officer to enter and remain in Hong Kong until 7th August 1994. He later applied to the Immigration Department for a Hong Kong Identity Card and on 20th August 1993, Identity Card No.P294238(4) was issued to him. He also obtained a Document of Identity from the Immigration Department. It was endorsed with a visa which was "good for multiple journeys to Hong Kong" and valid until 7th August 1994. Subsequently, he acquired a China Re-entry Permit No.748727 through the China Travel Service. Since his entry to Hong Kong, the applicant had become a resident. He set up a business here and resided in a flat purchased in his name. He had travelled to China over 40 times for business purposes between September 93 and June 1994.

3. On 27th April 1994 he went to Tianjin, China. On 16th June 1994, he returned to Hong Kong through Lowu Immigration Control Point at about 6:35p.m. He was refused entry to Hong Kong and served with a Refusal Notice under s.11 of the Immigration Ordinance. He was orally informed that the reason was that his One-way Chinese Exit Permit was false. He was detained overnight and served with a Notice for Detention under s.26(a) of the Ordinance. The refusal and detention are the subject matter of this application for judicial review.

4. The events which led to these decisions were as follows. In September 1993, 3 persons holding One-way Chinese Exit Permits were intercepted at Lowu Immigration Control Point. Their permits were subsequently found out to be forgeries. The Special Investigation Section of the Immigration Department started investigations into possible irregularities in One-way Chinese Exit Permits. As a result, it had reasons to believe that quite a number of these exit permits were highly questionable. A meeting was held between the Director of Immigration and the Director of the Bureau of Exit Entry Administration, Ministry of Public Security in China which was responsible for administering the issue of exit-permits in the whole of China. Further investigations were conducted by the Special Investigation Section and a report on its findings was compiled. This Report was sent to the Bureau of Exit Entry Administration on 30th November 1993 asking for confirmation as to whether the exit permits identified by the Special Investigation Section had been lawfully issued. The permit held by the applicant was included in the list for which confirmation was sought. On 29th December 1993, the Bureau of Exit Entry Administration replied giving the results of their record check on these questionable exit permits. It stated, among other things, that 43 exit permits of which the applicant's was one were "yet to be issued". I shall deal with these 2 letters (which were exhibited at p.101 and 121 of the Bundle) in greater detail at a later stage.

5. Based on the information so supplied by the Bureau of Exit Entry Administration, the Immigration Department came to the conclusion that the applicant's One-way Chinese Exit Permit was not lawfully issued and that since he did not have a valid exit permit when he first sought permission to land in Hong Kong, the permission which was granted to him based on such permit was null and void. It also directed that the applicant's Hong Kong Identity Card and Document of Identity which were issued by virtue of the invalid Chinese Exit Permit were null and void and should be seized. An officer of the Immigration Department upon instruction attended on 27th April 1994 at the applicant's residential address and tried to locate him. However, the applicant was not there. Another attempt to find him on 28th April 1994 at his business address was also unsuccessful. His name was then put on the Immigration Watch List. It seems that the applicant had on 27th April 1994 left Hong Kong for China.

6. On 16th June 1994, at about 6:30p.m., the applicant returned to Hong Kong through Lowu Immigration Control Point. He was stopped and interviewed by an immigration officer who explained to the applicant that confirmation had been received by the Immigration Department that his One- way Chinese Exit Permit had been unlawfully issued. At about 8:50p.m., the applicant was served with a notice advising him that he had been refused permission to land. At about 10:35p.m, he was informed that he was being detained under s.26(a) of the Immigration Ordinance for enquiry as to whether he had used or was in possession of an unlawfully obtained Chinese Exit Permit and whether he had furnished false information to the Immigration Officers. On the following day, he was released on recognisance. The decisions to refuse the applicant permission to land and to detain him are now subject to judicial review.

The grounds

7. Pursuant to the Order made by Liu J. (as he then was) on 24th October 1994, the applicant provided further and better particulars of the grounds relied upon in this application in the form of answers to questions raised by the respondent. With my leave, these particulars were amended.

8. The applicant relied basically on 3 grounds. First, the Director of Immigration was in breach of the rules of natural justice in denying the applicant a fair hearing before the decision was made to refuse him permission to land in Hong Kong. Leading Counsel informed me that the applicant did not wish to make any submission on this ground. Second, the Director of Immigration in refusing the applicant permission to land had acted irrationally and unreasonably in relying solely on the information supplied to him by the Chinese authorities without any sufficient evidence to justify the allegation that the applicant's One- way Chinese Exit Permit had been unlawfully issued. Third, the Director of Immigration had acted illegally in refusing the applicant permission to land. He had no sufficient evidence to justify the conclusion that the applicant was not eligible to land and remain in Hong Kong and had no power under the Immigration Ordinance or otherwise to impugn the validity of a travel document issued by a friendly nation.

Permission to land

9. Under s.7(1) of the Ordinance, a person may not land in Hong Kong without the permission of an Immigration Officer unless he has the right of abode in Hong Kong (or he is a British citizen or falls within s.9(1) or s.10(1). A permanent resident in Hong Kong enjoys the right of abode here by virtue of s.2A of the Ordinance. The applicant was given permission to land and remain in Hong Kong in August 1993 and he had a Hong Kong Identity Card which said that he was a resident here. However, he was not a permanent resident and hence did not enjoy a right of abode in Hong Kong. Under s.11(10), 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. The applicant had travelled out of Hong Kong from time to time. Hence, notwithstanding the permission granted to him to land and remain in Hong Kong in August 93, every time he returned to Hong Kong, he would need the permission of an Immigration Officer to land. And before giving such permission, an Immigration Officer had the power to examine the applicant under s.4(1) of the Ordinance.

The first ground

10. I think the authorities are quite clear in that an alien has no right or legitimate expectation of being allowed to land in Hong Kong and such permission can be refused without reasons being given and without any hearing.

(See Schmidt v. Secretary of State for Home Affairs, [1969] 2 ch.149 and Ho Ming Sai and others v. The Director of Immigration [1994]1 HKLR 21.) It is equally clear that if a person is given leave to land and stay for a limited period of time and if leave is revoked before the expiry of that period, he ought to be given an opportunity of making representation to the authority and he should be afforded a fair hearing (see the Schmidt case at p.170). The position is however not so clear in the case of a person like the applicant who has been given permission to land and remain for a period of time which has not expired but who has left and now seeks permission to land again during that period where a fresh permission is required. Counsel for the respondent accepted that there must be a good reason for refusing him permission but argued that he had no right or legitimate expectation to a fair hearing before the decision to refuse permission was made. The applicant was content to rely on the other two grounds and made no submission on this point. In the absence of full arguments, I do not propose to make any ruling. However, I am inclined to agree that a person who has no right of abode in Hong Kong and who by virtue of s.11(10) needs a fresh permission to land every time he seeks to enter is not very much better off than an alien, although I do think that as in the present case, such person would be entitled to be informed of the reason for refusing him permission. (See Khawaja v. The Secretary of State for the Home Department (1984) AC 74.) Apart from that, I think that there must be a good reason for denying him access to Hong Kong which has been given to him on previous occasions. The Court is entitled to look at the reason for such refusal in considering whether the Director of Immigration had acted irrationally, unreasonably or ultra vires.

Reason for refusing permission

11. The Immigration Officer in the present case did explain to the applicant the reason for not granting him permission to land. He was also subsequently given written reasons for the refusal. The real challenge to the 2 decisions seems to be that the Immigration Officer had no good reason to refuse the applicant permission and that the officer had acted irrationally, unreasonably and ultra vires.

12. Mr Lee for the applicant relied on the Khawaja case and submitted that once the applicant had shown a prima facie case, the burden was on the Director of Immigration to justify, on a balance of probabilities, the legality of his decisions (see p.112). He submitted that since the applicant had succeeded in showing that he had been issued an apparently valid One way Chinese Exit Permit, it was for the Immigration to prove that it was invalid. As a general proposition, I would agree with it but add a rider that the applicant has no right to land and the Director of Immigration has the power to refuse him permission to do so under the provisions of the Immigration Ordinance provided that he must not act irrationally unreasonably or ultra vires.

13. Under s.4(1) of the Ordinance, an Immigration Officer has the power to examine a person upon his arrival in Hong Kong. Upon such examination, that person shall produce a valid travel document (s.5(4)). A valid travel document is therefore a pre-requisite for the granting of permission to land. The current policy, (probably as a result of an agreement between the Immigration Department/Hong Kong Government and the Chinese authority) is that persons holding one way Chinese Exit Permits would be allowed to land and remain in Hong Kong. If the applicant was in possession of a valid exit permit, he would according to the current policy be permitted to land. In August 93, he was granted permission to land as well as permission to remain for 1 year on the strength of his Exit Permit. He was subsequently issued a Hong Kong Identity Card and Document of Identity. He could leave and return using his ID card. But by virtue of s.11(10) and s.2A, legally he required permission to land every time he returned to Hong Kong. This time, on 16th June 1994, he was refused.

14. The Immigration Officer's decisions to refuse the applicant permission to land and to detain him were based on his conclusion that the applicant's One-way Chinese Exit Permit had been unlawfully issued. Since the applicant did not meet the requirement in August 1993, he should not have been permitted to land then and should not be permitted now. The Officer's conclusion was reached as a result of some lengthy investigations by the Immigration Department and information supplied by the Bureau of Exit Entry Administration in China. Counsel for the applicant argued that these were not sufficient. He submitted that there was no clear statement in the response from the Bureau of Exit Entry Administration to the Immigration Department's inquiries saying that the applicant's Exit Permit was invalid and that this Bureau was seeking further information from the Immigration Department before making a decision on its validity. On the other hand, Counsel for the respondent submitted that reading the response as a whole, it was quite clear that the Bureau had said that the applicant's Exit Permit together with other permits were invalid because they had yet to be issued.

15. I should now examine the Immigration Department's letter of enquiry and the Bureau's reply. These 2 letters should be read in the light of the background leading to the investigations to which I have referred earlier.

16. The results of preliminary investigations revealed the following. One-way Chinese Exit Permits were issued in a numerically sequential order. There were a large number of permits which should have appeared if that sequence was followed since one would expect that a person who was issued such a permit would use it shortly thereafter and in any event before its expiry date. However, some of these permits had not been presented/used for entry into Hong Kong. In 1993, a number of permits had been presented/used which bore numbers far greater than the Immigration Department would have expected had the numerical sequence been followed. Some of the permits were purportedly issued by a certain province when it was expected that they should have been issued by another province.

The enquiry and the response

17. As a result of these investigations, the Immigration Department had reasons to believe that certain One-way Chinese Exit Permits, including the applicant's were either forged or unlawfully issued. In the letter of enquiry to the Director of the Bureau of Exit Entry Administration, the Director of Immigration referred to 4 specific batches of permits set out in the 4 appendices to the letter; namely the 52 permits including the applicant's; 8 permits whose numbers were beyond 0400,000 and 3 of which were already found to be forgeries; 2 permits on which the names were different from those appearing in the records and 15 permits in 2 batches issued by certain provinces. There was also a "Speaking Note" dated 3rd November 1993 concerning 18 permits.

18. In respect of the 52 permits, the Director of Immigration's letter said :-

"During our investigation, we have obtained the sincere co-operation of the Chinese side by supplying the following information to assist our investigation:

(1) One-way permits No.0398601 to 0400000 were allocated to Shanghai Shi for issuance;

.....

In the light of the above-mentioned information, we have discovered that since July this year (1993), altogether 52 One-way permits which should have been issued by Shanghai Shi were found to be issued by Henan, Guanxi, Sichuan and Guizhan (See Annex I). But we have encountered One-way permits which were issued by Henan Sheng being generally of 0180000 and 0190000 series, those issued by Guanxi Sheng of 0346000 series, those issued by Sichuan Sheng of 0338000 series and those of Guizhou Sheng of 0193000 series. We have discovered that the specimen signature of the issuing officer on these permits not the same as that on the permits set out in Annex I. In the light of this discovery, we believe that the One-way permits set out in Annex I were either forged or unlawfully issued."

19. In the response from the Bureau, the different batches of questionable permits were dealt with separately one by one. In respect of the 52 permits which included the applicant's, the reply was as follows :-

"(2) The 52 permits numbered between 0398614 and 0399986 were allocated for use by the Shanghai Shi Public Security Bureau, of which: (number) was issued to (name), (number) was issued to (name), (number) was invalidated, (number) was issued to (name), (number) was issued to (name), (number) was issued to (name), (number) was invalidated, (number) was issued to (name), (number) was issued to (name), whereas the 43 permits between 0398824 and 0399986 are yet to be issued."

20. It is also interesting to note how the Bureau dealt with 3 other batches of permits in the following ways:-

"(3) The 5 permits between 0398523 and 0398537 were allocated to Shanxi Sheng for use but these 5 permits are yet to be used.

(4) The 10 permits between 0361735 and 0361774 were allocated to Fukien Sheng for use but these 10 permits are yet to be used.

(5) The 8 permits after 0400000 have yet to be allocated to the various Public Security Bureau.

(II) ... Permit (number) was allocated to the Shanghai Shi Public Security Bureau for use and it is yet to be issued. Permit (number) is yet to be allocated to the various Public Security Bureau."

The reply ended with the following:-

" In order to further check on the relevant circumstances:

(1) To report to our Bureaux the address in the mainland, family circumstances and Hong Kong Resident Identity Card Number (in the case of the those who have been issued with permits) of the holders of the aforesaid questionable One-way permits;

(2) To let our Bureaux know as far as possible the relevant circumstances of how they obtained the One-way permits.

It is hoped that both sides will strengthen our co-operation to jointly crack down on the syndicates engaged in the making of forged permits and to uphold the normal order of entry and exit clearance."

21. The Director of Immigration's letter concerning the 52 questionable permits which included the applicant's could not be any clearer. He believed that they were either forged or unlawfully issued for 3 reasons: first, according to their numbers, they should have been issued by Shanghai Shi but they were not; second, according to the numbers allocated to the provinces, these 52 permits should not have been issued by these provinces (i.e. the applicant's permits should not have been issued by Henan Province) but they were so issued; third, the signatures on these 52 permits differed from the specimen signatures. The comments by the Chinese Bureau were sought.

22. In my view, the reply by the Chinese Bureau concerning these 52 permits was equally clear. Of these permits, 2 were invalidated, 7 were issued to certain named persons, and the other 43 (including the applicant's) were yet to be issued. It meant what it said - the 43 permits had not been issued. It did not say and certainly did not mean that although they were not issued by Shanghai Shi, they were or might have been issued by other provinces. If this were the case, the Bureau would have said so clearly because the Director of Immigration had clearly informed them that these 52 permits (not only 43) were issued by other provinces and suspected to be forged or unlawfully issued and invited their comments. The Bureau should know that they were asked specifically about these 52 permits and they did deal with all of them and said that 43 of them had not been issued. They were the central organisation administering the allocation and issue of exit permits through different provinces. They would be in a position to know which permit was issued by which place. They should know whether some of the permits which included the applicant's permit were issued by another province if this was indeed the case. Further, the reply carefully drew a distinction between "yet to be allocated", "for use but yet to be used" and "yet to be issued". I take the view that the reply of the Bureau was a clear confirmation that the 43 permits which included the applicant's permit had not been issued, whether by Shanghai Shi or indeed any other provinces. The purpose of the last few paragraphs merely requested for information for the purpose of cracking down on the syndicates involved.

Whether any good reason for the refusal

23. Leading counsel for the applicant argued that the Director of Immigration had failed to discharge the burden of proving that the applicant's exit permit was invalid. It was submitted that the Director had failed to prove many relevant matters which included, and I seek to summarise them here, that Shanghai Shi and no other place or province had legal authority to issue permits bearing the numbers which were allocated to Shanghai Shi and which included the applicant's permit and that any permit issued by any other place or province without such legal authority would be regarded as invalid by the Chinese Government. He also submitted that the Director had failed to prove that any person holding an invalid permit would have no permission to leave China and would be an illegal emigrant. Counsel also submitted that it was necessary to prove the relevant Chinese law regarding the power given to the Bureau of Exit Entry Administration to allocate numbers for the issuance of One-way Chinese Exit Permits to various places and provinces and that the Chinese law forbids one place or province to issue permits bearing numbers allocated to another place or province, that the Chinese law did not allow a transfer or assignment of numbers allocated to that place or province.

24. With respect to counsel, I do not think these matters are relevant in the present case and/or are material in the light of the reply from the Bureau of Exit Entry Administration. These matters are only the steps in the process through which the Chinese authority would decide whether a particular exit permit is valid or invalid, legal or illegal. The relevant provisions in the Chinese law are only relevant in the decision which the Chinese authority makes on that issue. The Director of Immigration was not concerned with these matters. The important question for him was whether there was sufficient material before him to come to the conclusion that the applicant's exit permit was not valid at the time it was used to gain entry in Hong Kong in August 1993. If there was a sufficiently good reason to come to that conclusion, then this would support his decision to refuse the applicant permission to land in Hong Kong on 16th June 1994 and to detain him. If there was none, he would have acted irrationally and unreasonably.

25. As far as the Director of Immigration was concerned, there was this statement from the Chinese authority which was responsible for the administration of allocation and issuance of exit permits saying that the exit permits bearing certain numbers which included that of the applicant's exit permit had not been issued. If they had not been issued in December 1993, they should not have been in use in August 1993.

26. The Immigration Department had made some lengthy investigations themselves and consulted the Bureau of Exit Entry Administration. The Director Immigration had relied on the results of these investigations together with the reply from the Bureau. The results of the enquiry as stated in Mr Leung's affirmation and those set out in the report which was sent with the letter dated 30th November 1993 to the Chinese Bureau were sufficiently sound reasons to cast grave doubt on the validity of the applicant's exit permit. When the Immigration Department were notified of the confirmation by the Chinese Bureau that the applicant's exit permit together with another 42 permits had yet to be issued, there were, in my view, quite sufficient reasons for the Director of Immigration to exercise his discretion under the provisions of the Immigration Ordinance and refuse the applicant's permission to land on 16 June 1994.

Knowledge of the applicant

27. Counsel for the applicant submitted that the Director of Immigration had failed to prove that the applicant knew that the exit permit was forged or unlawfully issued. He relied on the Khawaja case in which Lord Templeman said at p.128:

"An entrant threaten with forfeiture of his rights may seek the protection of the court in habeas corpus and judicial review proceedings, asserting that he did not obtain leave to enter by fraud, that he is not an illegal entrant, and that therefore the Immigration authorities had no power to detain him or to remove him from the United Kingdom. If the court is not satisfied that the entrant obtained leave to entry by fraud, the court will protect the entrant against detention and removal."

28. Counsel for the Director of Immigration argued on the other hand that in view of s.2(2) of our Ordinance, guilty knowledge on the part of the applicant was not necessary. She also relied on the case of R. v. Immigration Officer ex parte Chan [1992] 1 WLR 541.

29. I think the Khawaja case can be distinguishable from the present case on this point. One of the questions for the Immigration Officer was whether the applicant had been validly granted permission to land in August 1993 on the strength of an exit permit which was either forged or unlawfully issued. His knowledge was not relevant. The situation was analogous to the case of R. v. Immigration Officer ex parte Chan (1992) 1 W.L.R. 541. Furthermore, s.2 (2) of the Immigration Ordinance provided, among other things, that no person shall be held not to have landed unlawfully on the ground only that he is not guilty of an offence under s.38(1), i.e. landing without permission.

It seems therefore that whether a person is guilty of an offence because he has the knowledge of the falsity of his travel document is not relevant to whether he has landed unlawfully. I do not think the Immigration Department had to prove that the applicant knew in August 1993 that the exit permit he was holding was unlawfully issued.

Comity of nations

30. The applicant also challenged the Immigration Officer's decisions on the ground that he had acted in breach of the rule of the comity of nations. Leading counsel submitted that the decisions were based on his "determination" of the validity of the applicant's exit permit. He argued that it was for the Chinese authority to make the decision whether the applicant's exit permit was lawfully issued or not but there was no clear decision or determination yet. It would be wrong for the Immigration Officer to make such a determination and if the court affirmed this determination, this would also be against the rule of international comity. Counsel relied on Buck v. Attorney General [1965]1 Ch. 745 and Potter v. Frauken Hill Proprietary Co. Ltd. [1906]3 CLR 479.

31. I do not think I can disagree with the proposition made by leading counsel for the applicant with regard to the rule of the comity of nations. The decision that a particular document issued by the Chinese authority has been lawfully or unlawfully issued is certainly an internal matter for China. I would also agree that it would be against this rule for the Hong Kong authority or even the Hong Kong court to make a determination in place of that which is to be made by the Chinese authority.

32. However, I do not think this is a case where this rule arises. First, there was a clear statement made by the Bureau of Exit Entry Administration that the exit permits including the applicant's exit permit had not been issued. This was a fact provided by the Chinese Bureau. It can only mean that the exit permit in question had not come into existence in December 1993, not to say August 1993 and it followed that the one held by the applicant was not lawfully issued. In the light of that statement, there was no need for a formal determination or adjudication by the Chinese authority. But if one was required, this statement would suffice. Second, the Director of Immigration was not concerned with how the Chinese Bureau came to their determination. He was not making any determination on the validity of the applicant's exit permit on behalf of the Chinese authority or in place of their determination. He came to the conclusion or "determination" that the applicant's exit permit was not lawfully issued from the investigations made by the Department and the confirmation from the Chinese Bureau. The important question is whether there was sufficient material for the Director of Immigration or his staff to make a decision to allow or refuse the applicant permission to land. In saying that there was sufficient material for him to come to the decision which he did, the court is not usurping the authority of the Chinese Bureau.

Ultra vires

33. It was also submitted that the Immigration Officer had acted illegally in that he had no power under the Immigration Ordinance to impugn the validity of the exit permit issued by the Chinese authority. Counsel argued that his determination that the applicant's exit permit was unlawfully issued was therefore ultra vires. With respect, I do not agree. It is his decisions to refuse permission to land and to detain the applicant which are under challenge. The court is asked to consider whether he had acted ultra vires his powers in making those decisions. The conclusion or "determination" he had come to was based on the results of the investigations of the Department and the confirmation of the Chinese Bureau and was the basis for his decisions. This was part of the process leading to his decisions. There was sufficient material before the Immigration Officer to enable him to make his decisions. He was clearly entitled to rely on such materials in the exercise of his powers under the Ordinance. He had the power to refuse the applicant permission to land and the power to detain the applicant under the provisions of the Ordinance. I do not think these 2 decisions were ultra vires.

Conclusion

34. Having considered all the submissions, I do not think the Immigration Officer can be criticised for having acted irrationally or unreasonably. Nor can I say that the two decisions based on the results of the Department's own investigations and the confirmation from the Chinese Bureau can be regarded as irrational or unreasonable according to the principles in the Wednesbury Corporation case, [1948] 1 KB 223. Similarly, I do not think it can be said, applying the tests as set out by Lord Radcliffe in Edwards v. Bairstow [1956] AC 14 at p.36, that there was no evidence to support the decisions of the Director of Immigration or that the evidence was inconsistent with and contradictory with the decisions or that the true and only reasonable conclusion contradicted the decisions,

35. For the above reasons, the application is refused.