THE DIRECTOR OF IMMIGRATION v. CHEUNG YUK SAI

IN THE COURT OF APPEAL

1986. No. 113
(Civil)

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This case has a most unfortunate history. Three children came into Hong Kong. They came illegally. Two of them have been allowed to remain: the third has not. The present Appellant is the father of these three children. A Removal Order was made by the Director of Immigration and the Appellant appealed against that. The appeal having been dismissed by the Tribunal, its order was then judicially reviewed by the High Court and was remitted for a further hearing before the Tribunal.

2. Before the Tribunal two matters were identified as requiring decision: the first was whether an Immigration Officer had power delegated to him to grant permission to stay, and, if so, the second was whether an Immigration Officer had in fact given permission to stay. The Tribunal's decision was based only on its answer to the first question. The Director of Immigration now sought judicial review, and Power, J. held that there was no evidence whatsoever to justify the finding that there had been a delegation of power to an Immigration Officer. He remitted the matter to the Tribunal to reach a decision in accordance with his finding. It seems he was of the view that it might be possible for further evidence to be called, and, as a result, he made an order which would have allowed such evidence to be called.

3. The Father has appealed to this court and the Crown has lodged a Respondent's Notice objecting to the wording of the judge's Order. This matter was before the court previously in September 1986. For reasons into which I need not go the matter had to be adjourned after submissions had been made by counsel then representing the Appellant. His counsel and solicitor were then unable to carry on and eventually he gave notice that he intended to act in person. Today he has sought a further adjournment. We saw no reason whatsoever to grant an adjournment. There was plenty of time for other counsel to be engaged if the Appellant wished to be represented and we are satisfied that this appeal is wholly without any merit.

4. What happened was that at the second hearing before the Tribunal there was cross-examination as to what had been said at a previous hearing. The notes of that cross-examination, and indeed the whole notes of the proceedings before the second Tribunal, were very unsatisfactory. It may be - we know not - that it was as a result of the form of the notes that the Tribunal misdirected itself. However, I am satisfied that the judge was entirely right when he said that the finding of the Tribunal that there had been a delegation of the power to allow this girl to stay was contrary to the whole of the evidence. That being so it was entirely right that he should grant judicial review.

5. That brings me to the Respondent's Notice. The order which the judge made included a direction that the Tribunal, in the absence of any further evidence, reach a decision in accordance with the findings of the court. We are told that there was some argument as to the wording of the order and that the judge had doubts whether it was open to him to direct that a decision be made strictly in accordance with his finding without any further opportunity to the parties to call evidence. We are satisfied that there was such power and that the proper order was that the matter be remitted for a decision to be entered in accordance with the judge's finding. Accordingly I would order that the words “in the absence of any further evidence” be struck out of the judge's order.

6. I would dismiss the appeal.

Silke, J.A.:

7. I entirely agree with the judgment which has been delivered by my Lord the Vice-President and with the orders he proposes. These protracted proceedings, which have been carried on for a very considerable period and for the most part of that period totally without merit, need finality, though part of the delay has been caused by lack of activity on the part of the Director of Immigration.

Clough, J.A.:

8. I also agree and only wish to add one very brief observation to the Appellant, that is that he appears to have been under the misapprehension during the course of this hearing that the court has power to decide generally 1:!hether his daughter may remain in Hong Kong. This is of course a matter for the Director of Immigration to whom he should make such representations that he may think fit.