DIRECTOR OF IMMIGRATION v. CHEUNG YUK SAI

1986, No. 1522

IN THE HIGH COURT OF JUSTICE

HONG KONG

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. In this application the Director of Immigration seeks an order of certiorari to quash the decision of the immigration Tribunal delivered on the 3rd July 1986 at Victoria Immigration Centre which held that the Director had delegated the power he has, under section 13 of the Immigration Ordinance, to allow persons who have landed unlawfully in Hong Kong to remain in Hong Kong to Immigration Officers generally or alternatively to a specific Immigration Officer Mr. Chui Tak-shing.

2. The Director seeks further declaration that the Director of Immigration has not delegated his power either generally or to Mr. Chui and finally seeks an order remitting the matter to the Immigration Tribunal with a direction to reach a decision in accordance with the findings of this Court.

3. Mr. Whaley who appears for the Director referred firstly to the affidavit of Mr. James Milton Murphie, the Deputy Director of immigration, who was, at the time of the hearing on 3rd July, the Acting Director of Immigration. Mr. Murphie very helpfully sets, out in his affidavit the history of this matter which I muse also now see out so that what follows can be properly understood.

4. The applicant, Cheung Yuk-sai, is the father of the child the subject of this litigation, Miss Cheung Ching-nuen ('the child'). His appeal to the Immigration Tribunal against the decision of the Director refusing to grant permission to the child to stay in Hong Kong was dismissed by the Tribunal on the 17th March 1986 without a hearing. Subsequently, on the 1st April 1986, his application for leave to apply for judicial review against the Tribunal's decision was dismissed by Deputy Judge Downey on the basis that, even if the allegation that Mr. Chui Tak-shing, an Immigration Officer, had given permission for the child to remain in Hong Kong was true, it would not assist her since, in law, such permission can only be given by the Director of immigration as defined in the Ordinance. 0n the 25th of April this refusal was overturned by the Court of Appeal and leave to apply for judicial review was granted on the basis of a point raised by the Court itself, namely that, since the Director of Immigration is the "specified officer" for the purposes of the Immigration Ordinance, section 43 of the Interpretation and General Clauses Ordinance raises a presumption that any public officer carrying out any duties entrusted to him is presumed to have been delegated the power to carry out such duties until the contrary is proved.

5. The application for judicial review was heard on the 16th May 1986 by Mr. Justice Nazareth. Two affirmations and one affidavit were filed on behalf of the Director in those proceedings - one by Mr. Tang, an Acting Assistant Director of Control and Investigation, one by Senior Immigration Officer Lee Ping-lam and one by Immigration Officer Chui Tak-shing. These affidavits denied, inter alia, that there had been any delegation of the Director's power to authorise illegal immigrants to remain in Hong Kong and Immigration Officer Chui denied that he had ever purported to grant such authorisation to the appellant's daughter. There was no evidence from the appellant. The application was allowed by Mr. Justice Nazareth and the matter was remitted to the Immigration Tribunal for determination in two stages, namely :

6. The Tribunal hearing was on the 3rd July 1986. Mr. Murphie states, in his affidavit, that he gave evidence at that hearing and details that evidence. He said that only the Director, as defined in the Ordinance, can authorise an illegal immigrant to remain in Hong Kong; that this power has not been delegated to any one beneath the rank of Director as defined in the Ordinance; that there are in existence no standing instructions or any other type of document which evidence any delegation of the power and in particular there is no document in existence styled Standing Order No. 1532(3)A. He referred particularly to this document because he had been subpoenaed to produce it. This document was said to contain a standing order delegating authority to officers below the rank of Director and it was suggested that Mr. Chui had made mention of this document in a hearing unconnected with the present application.

7. Mr. Murphie went on to say that he had said, when he came to give oral evidence, that he would know if there had been any delegation of the Director's power, that such delegation would be a major step and that it is not possible that he could have overlooked the existence of any circular to this effect. He said that he was quite certain that the Assistant Director (Control and Investigation) had never delegated his decision making power whether orally or in writing.

8. He went on then to detail the practice with regard to the consideration of any particular case. I do not heed to canvass that evidence.

9. Also called before the Tribunal was Mr. Tang who was the Assistant Director (Control and Investigation) and Mr. Chui, the officer previously mentioned, who was said to have made reference in an earlier hearing to Standing Order 1532(3)A. Both set out the evidence they gave to the Tribunal in affidavits. Mr. Chui denied the existence of such a document and denied ever having made mention of it in other proceedings.

10. Before me there is an affidavit from a Mr. Lau Chi Kwong a clerk with the solicitors for the applicant. Mr. Lau was present at the hearing before the Immigration Tribunal and states in his affidavit that he disagrees with the affidavit of Mr. Murphie with regard to the evidence which. Mr. Murphie says he gave and sets out what he says is a verbatim account of the evidence given for the Tribunal. I must say, having considered this account, having considered the evidence detailed by Mr. Murphic and having considered the record of the Tribunal itself, I do not find any significant areas of uncertainty with regard to the evidence given by Mr. Murphie.

11. The Tribunal also heard evidence from a Mr. Souza, called by the applicant. He was present at the hearing where Mr. Chui was said to have made mention of the Standing Order 1532(3)A. He said in this regard "Mr. Chan gave evidence. He had some kind of pamphlet or booklet. It was not produced. I think it was in his drawer. I cannot remember number of pamphlet. ”

12. Having considered the evidence, the Tribunal made its finding. This finding is, regrettably, not of assistance to this Court as the Tribunal simply said:

"The Tribunal finds that the Director of Immigration has delegated his power under section 13. "

13. The submission of Mr. Whaley is that this decision was unreasonable and perverse and that this Court must be satisfied that there was a misconception of law by the Tribunal when coming to it.

14. There is no need for me to canvass the law at any length in this matter. I refer only to the judgment of Viscount Simonds in Edwards v. Bairsiow⁽¹⁾ at page 29, where he said:-

"......... For it is universally conceded that, though it is a pure finding of fact, it may be se aside on grounds which have been stated in various ways but are, I think, fairly summarized by saying that the Court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained. It is for this reason that I thought it right to set out the whole of the facts.......”

Indeed, for that same reason, I have canvassed the facts in the present case.

15. Mr. Persaud, who appears for the applicant, does not, it seems make any suggestion that the evidence of Mr. Murphie and the other Immigration Officers was deliberately untruthful or even that it was mistaken. The thrust of his argument is that there was evidence before the Tribunal upon which is could find that there had been a delegation and that, given that it had such evidence, it was entitled simply to disregard the evidence of Mr. Murphie and the other Immigration Officers. The evidence upon which Mr. Persaud says the Tribunal was entitled to rely is as follows :

on the 22nd January 1985 the applicant, who has three daughters, the girl concerned in this application being one of them, was told by an Immigration Officer, who was not of the rank to have made such decision unless there was a delegated power, that all three would be allowed to remain in Hong Kong;

 

no action was taken, thereafter, with regard to the two sisters or to the child until 1986;

 

on 18th June 1986, the two sisters were given a document headed "Registration for Juvenile Identity Card" and was also given a document which is headed “Entry Permit".

Mr. Murphie in his evidence made it clear that these documents are only provided once a decision has been taken to allow an illegal immigrant to remain.

16. Mr. Persaud had two approaches. In the first he submitted that there was positive evidence upon which the Tribunal was entitled to rely when coming to its conclusion. In the second he submitted that, even if this were not so, giver the nature of the evidence that was before it, only the Tribunal was in a position to make a valid assessment thereof and this Court should refuse to interfere with that assessment.

17. He submits that the decision on 22nd January 1985, which related to all 3 sisters, must have been taken, i.e. the officer must have had the power to take the decision delegated to him, because the exercise of it was confirmed by the issue on the 18th of June 1986 to 2 of the sisters of the Registration for Juvenile Identity Card documents and the Entry Permits. This evidence Mr. Persaud says was before the Tribunal and it was entitled to act upon it.

18. There are difficulties however, with regard to this approach. The first is that there was, upon the record as I have it, no evidence before the Tribunal to establish that an Immigration Officer did, on the 22nd January 1985, tell the father that all three children would be allowed to remain in Hon Kong. This is the cornerstone of Mr. Persaud's approach and this cornerstone has not been established by the evidence. Even, however, had that cornerstone been positively established, i.e. that an Immigration Officer made the alleged statement on the 22nd January 1985, I am unable to see how this assists the applicant. It is true that on the 18th June 1986 the documents were issued but there was nothing before the Tribunal to indicate that these were not issued, as, indeed, Mr. Murphie and the other Immigration Officers have said they must have been, after a decision had been taken by the Director that the children should be allowed to remain. I am unable to see how the fact of issue established that the officer who is said to have made the statement must have been delegated file authority so to do. Even if it had been established that an Immigration Officer made the statement said to have been made on the 22nd January 1985, there would still, I am satisfied, be no merit in Mr. Persaud's argument.

19. Mr. Persaud in his second approach cautions the Court to have regard, before making its decision as to whether or not there was any delegation of power, to the actual record of the Tribunal. He submits that the Court should be slow to act upon the affidavit evidence from the officers in which they purport to set out the evidence which they say they gave to the Tribunal. He urges the Court to bear in mind that only the Tribunal heard the evidence, heard the cross-examination and heard the argument upon that evidence. He suggests that this Court should, in such circumstances, be very slow to interfere.

20. The evidence given by Mr. Murphie before the Tribunal which is supported by that of the other officers is, to my mind, clear and unequivocal. It is clear not only in his affidavit but also in the record of the Tribunal itself. This record shows him to have said that if an officer at Li Po Chun Chambers, having made an investigation is satisfied, the next step is to make a recommendation to a Senior Immigration Officer who will refer the matter to an Assistant Director. This is a clear statement as to the chain of command that should be followed end which he says is followed before a decision is made with regard to an illegal immigrant. He said, according to the record, that if the forms, the entry forms and the application forms are issued, no other letter will be sent to an applicant before the Identity Card is issued. I am unable to see how this statement by Mr. Murphie can be used to suggest that an officer below the rank of Director can issue the forms without permission. It is implicit in his evidence, that all these things can only be done after the decision has been taken by the Director. He went on to say, according to the record, that as far as delegation goes, the Director has always ensured that only Assistant Directors have been delegated and when he was dealing with the alleged standing Order, by which power was said to have been delegated, he said that no such circular has been issued. He said that any authority to any person other than an Assistant Director must be known to him, and that it was not possible that any authority would not be known to him.

21. This then was his evidence as revealed by the record. It was as I have said, clear and unequivocal. There was no evidence contrary to that evidence. There was nothing put before the Tribunal to suggest that that evidence was wrong. There was, in my view, no evidence of any sort indicating that there had been any delegation.

22. I am driven to the conclusion having examined the evidence that the Tribunal came to its decision without any proper consideration of the material before it.

23. I quash the decision of the Tribunal and direct the Tribunal to re-hear the matter and indicate that, in the absence of any further evidence, there is only one conclusion to which it can come.

24. I grant the relief sought in (1), i.e., an order of certiorari quashing the decision. I make a declaration that the Director of Immigration had not delegated his power to Immigration officers generally or to Mr. Chui Tak-shing 1 remit the mater to the Immigration Tribunal with a direction that they follow the ruling given by this Court in the re-hearing of this matter.

(1)    [1956] AC 14