GO TJOE LIEK v. THE REGISTRATION OF PERSONS TRIBUNAL AND ANOTHER

HCAL1010/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1010 OF 2000

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J U D G M E N T

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1. This is an application for judicial review of the decision of the Registration of Persons Tribunal ("the Tribunal") dated 22 March 2000 dismissing the applicant's appeal under section 3D(1) of the Registration of Persons Ordinance, Cap. 177 against the decision of a registration officer made on or about 22 April 1999 not to issue a permanent identity card to him. As is usual and proper in these circumstances, there is no appearance by the Tribunal (the 1st respondent). The issue before the court is taken up by the 2nd respondent.

Background

2. The applicant had applied for Hong Kong permanent resident status under Article 24 of the Basic Law. There was no dispute that he had resided in Hong Kong for a continuous period of seven years, namely from 1959 to 1967, between the ages of 12 and 20. It was an agreed fact that he arrived here from Indonesia in 1959, he went to school here and he left for tertiary education to USA in 1967. It was also accepted that he was of Chinese race and a Chinese citizen.

3. In order for him to qualify for a permanent identity card, the onus was on him to satisfy the Tribunal that his arrival in Hong Kong in 1959 was lawful and that his continued residence here was also lawful. In other words, the applicant had to prove he was "ordinarily resident" during those years.

The hearing below

4. The applicant was unrepresented before the Tribunal. At the Tribunal adjudicator's invitation, and with her assistance, he gave a full account of his recollections concerning his arrival at Kai Tak in 1959 on his Indonesian passport, being cleared by immigration control and being met by his sister who was 10 years his senior and had come to Hong Kong two years earlier. Both he and his sister gave evidence about their living in Hong Kong and in particular about his being registered at school and completing his secondary education at the same school, (this was not contested). They also gave evidence about making regular applications to extend his visa permitting him to stay in Hong Kong. They remembered meeting a "British immigration officer".

5. The 2nd respondent's case before the Tribunal substantially relied on the contention that no records existed which confirmed the applicant's account. The evidence of the applicant and his sister was not tested or challenged by way of cross-examination by government counsel. However the Tribunal was informed by government counsel that the available records had been searched and no documentation on the applicant had been found whereas a file on the sister did exist and had been found. Very little evidence was called about the system of record keeping or the extent of the search that had been made, although an immigration officer was called who gave evidence that records of entry of tourists were destroyed after 10 years. There are no strict requirements relating to evidence and procedure in the Tribunal. The Tribunal enjoys a degree of flexibility not available to courts of law. However, as a matter of common sense, the more a Tribunal departs from conventional rules of procedure and evidence, the more vulnerable it becomes when its decisions are subjected to judicial review proceedings. Having said that, however, no complaint is made in this case of procedural irregularities. Counsel for the applicant is nonetheless entitled to make such observations and comments in the context of his primary submission which is that the reasons for decision given by the Tribunal are inadequate.

6. It is not for this court to interfere with the findings of fact. The issue solely relates to the reasons for dismissing the application. The reasons given are brief and so I set them out in full :

"1. This is an appeal against the decision of the Director of Immigration on his refusal to issue the Appellant a permanent identity card.

2. To establish permanent residency, Appellant is required to prove he is a person who is wholly or partly of Chinese race and has at any time been ordinarily resident in Hong Kong for a continuous period of not less than 7 years. Such is the requirement of the law that is applicable to the Appellant.

3. It is common ground the Immigration Department takes no issue with Appellant's claim that he is wholly or partly of Chinese race and he has resided in Hong Kong for a continuous period of 7 years between 1959 and 1967. The only issue before this Tribunal is whether Appellant's presence then in Hong Kong was lawful or not.

4. Upon affirmation, Appellant said he arrived with a valid Indonesian passport when he came to Hong Kong. As he was still very young, it was his sister, Madam Lily Utomo, who looked after him as a guardian. Appellant couldn't really explain his status then in Hong Kong as he was too young. Madam Lily Utomo was called as a witness and she claimed she was the one who took Appellant to the Immigration Department to apply for extensions of stay.

5. We have examined all available records supplied by the Immigration Department of the Appellant's entry into Hong Kong. We have examined all available records from the Indonesian government supplied by the Appellant. We have also considered the testimony of his sister, Madam Lily Utomo, who is the witness for the Appellant. However, there is no evidence to support his lawful entry to Hong Kong in 1959 and also his applications for extension of stay during his presence then in Hong Kong. Therefore, we are not satisfied on the balance of probabilities the legality of his presence then in Hong Kong between 1959 to 1967." (emphasis added)

The issue

7. This judicial review focuses on the words in italics. Mr Dykes, SC, for the applicant, simply says that the words used are plainly incorrect. There was evidence. There were two cogent accounts directly related to the lawfulness of his entry and stay thereafter. The reasons did not say that the Tribunal did not find the evidence probative or reliable, they did not say that the Tribunal had placed greater weight on the absence of any file on him, they did not say that they had rejected his or his sister's evidence. Mr Marshall, SC, for the 2nd respondent, after an instructive analysis of a wealth of case law on the subject, submitted that the proper approach was to acknowledge that the words used may be imprecise but to conclude that what was actually being said was that they had found there to be no acceptable or probative evidence upon which they could grant the application. By reference to a number of authorities from a variety of tribunals, he urged this court to conclude that the present judicial trend is to adopt a benign approach to the issue of construction when determining what was truly meant by the words used in a statement of reasons for a decision. In this case he submits that if one examines the record of the proceedings, the fairness of the procedure adopted and the arguments and counter arguments advanced by the parties, it is apparent that the Tribunal was seized of the correct issues and heard the relevant evidence. Therefore it is safe to, in effect, redraft the reasons to give a correct version of what they must have meant.

8. He referred this court, inter alia, to Minister for Immigration and Ethnic Affairs v. Wu Shan Liang [1996] 185 CLR 259 where the High Court of Australia commented that "one must not construe minutely and finely with an eye keenly attained to the perception of error". Also, to Lord Bridge's remarks in Save Britain's Heritage v. Number 1 Poultry Ltd [1991] 1 WLR 153 that "reasons must not be construed as statutes and must be treated impressionistically as a whole".

9. It is unnecessary to further analyze the 2nd respondent's authorities because Mr Dykes made no attempt, very properly, to submit they were bad or unhelpful law. His submission was simply based on the contention that the reasons given were incorrect and therefore inadequate and thus, putting a benign construction on loose or imprecise wording did not arise.

The decision

10. I accept the argument advanced on the applicant's behalf for the following reasons :

1. An application for a particular status as a citizen is a fundamentally important issue to an individual. Accordingly, the regulations to Cap. 177 impose an obligation on the Tribunal to give reasons for its decision. In this case the applicant was at least entitled to know why his evidence did not satisfy the burden of proof on him. It is inadequate to say there was "no evidence in support of his lawful entry into Hong Kong". In fact, there was no challenge to the only evidence on the issue, namely his clearing immigration at Kai Tak with his Indonesian passport. It was never put to him that this account was concocted, or even mistaken. These events were 41 years ago and he should not be disadvantaged by the fact that the passport has long since been lost.

2. The minimum requirement of a Tribunal in these circumstances has been considered on a number of occasions. Lord Lane CJ in R. v. I.A.T Ex parte Khan [1983] QB 790 said (at 794) :

"Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

In R. v. I.A.T ex parte Amin [1992] Imm AR 367 Schiemann J stated at page 374 :

"..... In my judgment adjudicators should indicate with some clarity in their decisions :

(1) what evidence they accept;

(2) what evidence they reject;

(3) whether there is any evidence as to which they cannot make up their mind whether or not they accept it;

(4) what, if any, evidence they regard as irrelevant."

Finally, in Hong Kong, Jones J in Chan Choi Hung v. Immigration Tribunal [1993] 1 HKC 422 (following Mahon v. Air New Zealand [1984] 1 AC 808) held :

"(1) The first rule of natural justice was that the person making a finding in the exercise of an investigative jurisdiction must base his decision upon evidence that had some probative value, which tended logically to show the existence of facts consistent with the finding, and that the reasoning supportive of the finding, if it be disclosed, was not logically self-contradictory."

11. I am persuaded that the Tribunal's reasons fall short of the minimum requirement.

3. Even the benign construction urged by Mr Marshall could lead to an injustice. He submits that the expression "There is no evidence to support ..." should be read in the context of the case that the Tribunal actually heard. In particular that no records of any sort were found to substantiate the applicant's claim, i.e. "no evidence". However, a conclusion that no such evidence existed merited more careful scrutiny which, if done, might not have resulted in the finding of "no evidence" even given its benign interpretation. In particular, Mr Dykes reminds this court that in 1959 the Director of Immigration did not exist. The Immigration Department was only created in 1961. In 1959 an "immigration officer's" powers were under an ordinance which has since been repealed. He could waive the requirement of entry with a valid travel document in the case of a child under 16; he had a discretion to impose conditions on entry. Prior to 1961, there was no requirement for a child under 16 to register as an alien and after 1961, the requirement to register did not apply to "nationals of China". In 1961 the applicant was under 16 and a Chinese national living in Hong Kong. All these factors could have had a bearing on why no file on the applicant had been found.

4. This court accepts that there was no requirement on the Tribunal only to act on admissible evidence in the strict sense. They are permitted to receive and act on a wider source of material. Thus it was open to them to accept from government counsel his instructions as to the system of keeping records and the investigations that had been made into the records concerning the applicant. In the same vein, there was no obligation on government counsel to cross-examine the applicant and his sister as to their credit or reliability of their recollections of events up to 40 years ago. However, given the submissions made in this hearing as to what the real issues were, it is expected, in the event of this matter being reconsidered on a future occasion, that different procedures will be adopted.

5. If, when giving its written reasons the Tribunal in fact meant that they had found there to be no evidence upon which it could rely so as to grant the application :

(a) it did not say so; and

(b) what it did say was very different.

Neither can their written reason be rescued by the drawing of an inference that that is what they meant. For the reasons already outlined, it would not be open to them to infer that the applicant's evidence was false simply because the information provided to the Tribunal was that no records could be found.

Order

12. In my judgment, the applicant is entitled to have his appeal reconsidered by a differently constituted Tribunal. If, after hearing the whole of the evidence, the Tribunal rejects the applicant's evidence or places greater reliance on the 2nd respondent's evidence to the extent that the applicant has failed to discharge the burden of proof, then, when giving its reasons, the Tribunal should follow Schiemann J's test in R. v. I.A.T ex parte Amin.

13. I make the order of certiorari quashing the Tribunal's decision as requested. It is now open to the applicant to make a fresh application. I make an order for costs against the 2nd respondent.