Chan Kong Tit and Others v. THE DIRECTOR OFIMMIGRATION

IN THE COURT OF APPEAL

1993. No. 163
(Civil)

________________

________________

J U D G M E N T

________________

Penlington, J.A. :

1. This is an appeal from a decision of Mr. Justice Kaplan who refused the applications made herein for judicial review of the decision of the Director of Immigration that the 2nd applicant (Mrs. Chan). the wife of the 1st applicant (Mr. Chan) should be removed from Hong Kong.

2. The circumstances of the case are similar to those which have been considered in relation to other applications.

3. Mr. Chan came to Hong Kong illegally in 1980 and is now a permanent resident with right of abode. However he went to the Peoples Republic of China (the P.R.C.) in 1982 and there married Mrs. Chan. She then entered Hong Kong illegally in 1983. Three children have been born who are the 3rd, 4th and 5th applicants. They are aged 9, 7 and 5 years respectively. The 5th applicant is a daughter. In April 1989, following the birth of the 5th applicant, Mrs. Chan surrendered herself to the Immigration authorities and was removed to the P.R.C. However she returned to Hong Kong in June 1989, again illegally as she could not obtain a "one-way" permit. She was arrested on 10th May 1993 and on the 27th of that month a Removal Order was made by the Director of Immigration.

4. Prior to and subsequent to the making of the Removal Order, submissions were made to the Director by solicitors for the applicants who had been granted legal aid. Mr. Chan says in those submissions that he is the sole bread-winner for his family and if his wife has to return to the P.R.C. he will have to give up his job so as to look after his family.

5. The applications are made here partially on the basis that the refusal to allow Mrs. Chan to remain was contrary to various sections of the Bill of Rights. These included Articles 1 and 22, discrimination. 14 and 19, interference with family rights, and 20, rights of children.

6. It has however now been decided by this court in Hai Ho Tak v. A.G. C.A. 64/1993 that the exempting clause in section 11 of the Bill of Rights precludes reliance being placed on that Ordinance in relation to the powers exercised by the Director of Immigration under the Immigration Ordinance.

7. A further ground raised in this application was that the Government's policy in regard to persons in Mrs. Chan's unfortunate position was that 75 legal immigrants are allowed to enter Hong Kong each day with what are known as "one-way" permits. There was affidavit evidence that there is very little chance of a person such as Mrs. Chan being able to secure one of these permits. They are much in demand as there is a very great number of such persons in the P.R.C. wishing to come to Hong Kong to be re-united with their family. It was a ground for seeking judicial review that in effect, the Hong Kong Government is delegating its powers to allow persons to enter Hong Kong to the Government of the Peoples Republic of China.

8. The Hong Kong Government can have no control as to how the persons who secure a one-way permit are selected but that does not mean that the Hong Kong Government has delegated its powers. It has simply agreed to accept, as legal immigrants from the P.R.C., 75 persons per day. While no doubt the Government would like families to be re-united the already crowded conditions of Hong Kong preclude more than a certain number coming each day and a limit has to be set. That limit is 75 per day. Inevitably it must be up to the authorities in the P.R.C. to decide who the recipients of one-way permits are. We see nothing in that which is unlawful or unreasonable and could form the basis for an application for judicial review.

9. While naturally we have sympathy for Mr. and Mrs. Chan and their children, we are satisfied that on the basis of previous decisions of this court and the principles set out therein, this application must be refused.