Attorney General v. Chen Huan qiong and Another

H E A D N O T E

Administrative Law - Judicial Review - Immigration Ordinance - Burden of proof in establishing invalid permission to remain is on Director - Adjudicator cannot give immigrant grace period to rectify travel documents - Tribunal wrong to conclude that appeal allowed when one adjudicator dismissed appeal and the other made no decision. Held: Appeal quashed.

1994, No. MP 1926

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. Pursuant to leave granted by Liu, J. on 26th July 1994, the Attorney General, on behalf of the Director of Immigration, seeks an order of certiorari to quash the decision of the Immigration Tribunal made on 30th June 1994, whereby they allowed the appeal of Madam CHEN Huan-qiong. The Attorney General also seeks an order of mandamus to direct the Tribunal to determine the said appeal according to law.

2. On 28th November 1994, I allowed the judicial review and quashed the order of the Immigration Tribunal dated 30th June 1994 whereby they allowed Madam Chen's appeal against the decision of the Director of Immigration dated 9th July 1993. I also ordered that the appeal should be remitted to the Immigration Tribunal for a hearing before a differently constituted tribunal. I made no order as to costs save for the Legal Aid taxation of Madam Chen's costs. I said I would reduce my reasons into writing which I now do.

Factual background

3. Madam Chen, who is originally from China, arrived in Hong Kong using a Panamanian Passport on 7th February 1990. She was granted permission to remain as a visitor in Hong Kong which was subsequently extended to 13th March 1990. On 10th March 1990, she married a Hong Kong resident and applied for change of status on 12th March 1990. She was granted permission to remain as a dependent and this permission was last extended on 13th November 1990 to 3rd November 1993.

4. On 21st January 1993, Madam Chen was intercepted while attempting to leave Hong Kong as the Panamanian Passport used by her was suspected to be forged. Upon further investigation, it was determined that her Panamanian Passport was forged and that the permission granted to her to remain in Hong Kong was null and void. She was served with a notice of removal order on 9th July 1993.

5. Madam Chen appealed against the removal order and the matter was heard by the Immigration Tribunal. On 30th June 1994, the Tribunal handed down its reasons for decision. One adjudicator, Mr. Rattigan, ordered that the appeal be dismissed. The other adjudicator, Mr. Lincoln Yung, did not make a decision but instead recommended that a reasonable grace period be given to Madam Chen to rectify details in her Panamanian Passport and identity card which were in error. He then stated that if she was able to rectify these matters he would support her case. However, if she failed to do so within 6 months, the appeal should be dismissed. When the Tribunal made its order, it stated that, as the adjudicators could not agree, the appeal should be allowed and the removal order rescinded.

Relevant Statutory Provision

6. The Immigration Tribunal is established under S.53F of the Immigration Ordinance, Cap. 115. A person against whom a removal order has been made may appeal to the Tribunal against the removal order pursuant to S.53A(1) of the Ordinance.

7. Under S.53D of the Ordinance, the Tribunal shall dismiss the appeal if it determines that the appellant:

(a) does not enjoy the right of abode in Hong Kong; and

(b) does not have the right to land in Hong Kong; and

(c) does not have the permission of the Director of Immigration to remain in Hong Kong.

Section 53D(1)(b) provides that in any other case it shall allow the appeal and rescind the removal order.

8. The practice and procedure of the Tribunal is provided for in S.53G and is prescribed by regulations pursuant to S.59 of the Ordinance. The Third Schedule to the Immigration Regulations sets out the practice and procedure of the Tribunal.

9. Paragraph 3(1) of the Third Schedule provides that the appeal shall be heard and determined by 2 adjudicators sitting together. Paragraph 3(2) provides that the Tribunal shall allow the appeal if either adjudicator hearing the appeal considers that the appeal should be allowed under S.53D(1) of the Ordinance.

10. Paragraph 5 of the Third Schedule provides, inter alia, that the Tribunal may receive and consider any evidence which appears to it to be relevant to the issues before it, notwithstanding that the evidence would not be admissible in a court of law.

11. It is only necessary for me to refer to 4 matters contained in the bundle.

(1) At the end of Mr. Rattigan's reasons for dismissing the appeal he said this:-

"I am mindful of the onus of proof which the appellant has got to discharge. It is not like in a criminal case where proof has got to be beyond reasonable doubt. All the appellant has got to do here is to tilt the balance in her favour. We are dealing with a "balance of probabilities" which is a much lesser standard. I imagine a set of weighing scales finely balanced, if they remain even, the appellant has not made out a case and the verdict goes to the respondent. If on the other hand, the appellant causes the scales to tilt, however little, then he has got to succeed. Having considered and analysed all the evidence in the light of this legal definition, the scales have not tilted and so the appellant's appeal fails. It is dismissed."

Was this a correct direction?

12. Although in many cases the burden will be on the immigrant to establish matters before the Immigration Tribunal, in the present case, it is clear that the Director had given permission to Madam Chen to remain and the burden was thus on the Director to show that his permission to remain was somehow invalid as a result of the use of the forged passport. He had to establish on the balance of probabilities that the passport was forged.

13. Although the proposition which I have stated is self evident, it is nonetheless supported by authority. In R. v. Immigration Officer, ex parte Chan [1992] 1 WLR 541 at 551 Neill L.J. said:-

"It is right to remember that a person who has entered with leave is in a stronger position with regard to the burden of proof than the person who was appealing against the refusal by an Immigration Officer of leave to enter."

14. Mr. Johnson Lam has correctly referred me to two Hong Kong Court of Appeal cases where there are statements which indicate that the burden of proof is upon the Appellant i.e. the immigrant. These cases are Cheung Cheong v. Attorney General [1987] HKLR 356 at p.360 and Lau Tak Pui v. Immigration Tribunal [1992] 1 HKLR 374 at p.376 and p.386-7.

15. Those are both cases to which Section 64 of the Immigration Ordinance applied which is the section which makes clear that a person who makes certain claims such as being a Hong Kong resident, or not being an alien, or being a British subject, or having been a resident in Hong Kong for 3 years etc. has the onus of proving that fact. However, S.64 of the Immigration Ordinance has no application to the present case where there is no doubt that the Director did give permission to remain, and thus it was incumbent upon him to show that permission was only granted because a false travel document had been submitted. He made such allegation and thus he has to prove it.

16. Quite fairly, Ms. Watson for the Attorney General acknowledged that Mr. Rattigan's direction on the onus of proof was incorrect on the facts of this case, although it would be correct for most cases coming before the Tribunal but she submitted that I should ignore it because it was clear that he had found all the relevant facts and law in favour of the Director of Immigration and even if he had directed himself correctly, he would inevitably have come to the same decision.

17. As I decided to quash the order of the Immigration Tribunal on other grounds, this point is not really relevant except that I thought it necessary to point out that not in all cases was the burden on the immigrant. I did take into account this error when deciding that, on the special facts of this case, justice would best be served by the matter being remitted to a completely differently constituted tribunal.

(2) The letter dated from the Consul General of Panama dated 27th January 1993 to the Director of Immigration reads as follows:-

".... This is to inform that your enquiries have been forwarded to the National Director of Passport of Panama .... for further investigation. .... in turn replied by return fax stating that the above passport under registration no. P824385 had been issued by the national Directorate of Passport to a Panamanian named JOSE ANTONIO FONSECA JACKSON on 19th January 1990. Therefore, passport no. N-17-6882 does not belong to CHEN HUAN GIONG. Further investigations have been pursued at the Panamanian Directorate of Personal Identification (Electoral Tribunal) and it has been confirmed that the identification no. N-17-6882 does not exist within their records. In additional, the authentic holder FONSECA JACKSON has not been reported to have lost his passport. Given the aforementioned, we would like to confirm that the above passport is not authentic and is a forged document. ..."

18. At the hearing before the Tribunal, there was an argument as to whether this letter was admissible in evidence. Mr. Rattigan made a ruling that it was admissible and Mr. Yung made no ruling. Mr. Rattigan was clearly right because regulation 5 of the Immigration Regulations contained in the Third Schedule to the Ordinance states as follows:-

"A tribunal may consider any matter which appears to it to be relevant to any ground of appeal permitted by the Ordinance notwithstanding the omission of any reference to such matter in the notice of appeal, and may receive and consider any evidence which appears to it to be relevant to the issues before it notwithstanding that the evidence would not be admissible in a court of law."

19. Clearly, this letter is admissible. Regulation 5 was no doubt inserted to assist immigrants in the sense that they were not to be bound by the strict rules of evidence, so that they could put forward any material which they thought appropriate and it was for the Tribunal to assess its weight. However, there is absolutely no reason why the regulation does not apply to the Director of Immigration as well. My findings in relation to the admissibility of this letter are of course relevant when one comes to see what Mr. Lincoln Yung had to say.

(3) Mr. Lincoln Yung's reasons are dated the 30th June 1994 and he stated as follows:-

"1 I do not believe the events leading Madam Chen to obtain the Panamanian Passport are material.

2. It is difficult to decide whether Madam Chen's Panamanian Passport is genuine or not. She has entered Hong Kong ten times. She has travelled to Macau, Thailand and China with visas. If the Panamanian Consul General of Hong Kong claims that the passport is not authentic and is a forged documents, Madam Chen would have been picked up earlier by the Immigration officers and prosecuted under criminal offence. Apparently, this is not the case since no criminal charge has been taken against Madam Chen. Therefore I presume Madam Chen's Panamanian Passport is genuine. Also the letter dated January 27, 1993 from the Panamanian Consul General of Hong Kong has not been authenticated.

3. The question remains whether Madam Chen's passport is valid or not and whether she entered Hong Kong through deception. If Madam Chen is able to rectify the record of her passport, i.e. her birthday of July 6, 1967 to July 6, 1964 as indicated in her application in China and that her identity card is corrected as "F" (female) instead of "M" (male), then I believe she has a valid passport to travel and therefore I would support the appellant's case. If she failed to rectify the birthday on her passport and the sex on her identity card, then she probably has an invalid travel document. Therefore she would have entered Hong Kong through deception and her appeal case should be dismissed.

I would recommend a reasonable grace period e.g. six months be given to Madam Chen to rectify the details in her Panamanian passport and identity card. If she fails to do so within that period, then her case should be dismissed."

20. I do not understand what Mr. Yung means when he says the letter from the Panamanian Consul General has not been authenticated. I am quite satisfied that this letter was admissible and Mr. Yung's comment is inexplicable.

21. Mr. Yung seems to think it important that no criminal charge has been taken against Madam Chen. The fact that she had not been prosecuted for a criminal offence was in no way determinative of the question as to whether the passport was valid or not. Although, again, I think this proposition self-evident, it finds support in the judgment of Neill L.J. in R. v. Immigration Officer. ex parte Chan (supra) at p.549 where he says this:-

"These two cases are not directly in point, but they support the proposition that the question whether a person is an illegal entrant is to be answered by considering whether or not he has entered in accordance with the Act of 1971 rather than by reference to whether or not he or some other person has committed a criminal offence. A person who requires leave to enter but enters without leave is an illegal entrant because of the provision of s.3 of the Act of 1971; it is irrelevant whether or not he may also have committed an offence under s.24(1)(a)."

(4) On the 30th June the Tribunal gave notice of their determination and the relevant part reads as follows:-

"On 30th June 1994, the Tribunal heard your appeal against the removal order and has determined pursuant to section 53D that on the facts of your case, which it found them to be as follows:

'As the Counsel for Immigration Department did not respond to the recommendation to give sufficient time for the appellant to rectify the travel documents, one of the adjudicators could not give a determination on this case. Appeal was therefore allowed as adjudicators did not agree.'

This was the basis upon which the appeal was allowed."

22. The correct analysis of what happened is as follows. Mr. Rattigan dismissed the appeal. Mr. Yung made no decision one way or the other. He decided that the Appellant should have a grace period in which she could rectify her travel document. In my judgment, he had no power to do that. Under regulation 3, he had to hear the appeal and had to determine it. In any event, he did not allow the appeal because he decided to make no decision and therefore the Tribunal were wrong to construe what had happened as being a case where one member of the Tribunal had allowed the appeal. Mr. Yung did no such thing and stated specifically that he would dismiss the appeal if the matters could not be rectified in time.

23. I am quite satisfied that there was no warrant whatsoever for the course taken by Mr. Yung. The decision of the Immigration Tribunal was wrong in law because one of the adjudicators did not allow the appeal. Mr. Yung did not make a decision in accordance with s.53D of the Ordinance or within the procedure lay down by the regulations contained in the Third Schedule. His doubts about the letter from the Panamanian Consul General are quite irrational and contrary to law. The letter was clearly admissible and I did not understand what he meant by saying that it was not authenticated.

24. Perhaps the gravest error in Mr. Yung's approach was that he somehow thought that if Madam Chen could rectify her travel document that would somehow assist her. The fact is, she obtained permission to remain in Hong Kong on the basis of a forged passport. Whatever she might be able to do in the future, nothing can gainsay the fact that her permission was based upon a forged document and that was the issue which was to be decided by the Tribunal. It is perfectly true that if she is able to rectify her documents, the Director may take a different view of the matter. But this court and the Appeal Tribunal are only concerned with the decision as it existed at the time when permission to remain was granted to her on the basis of the false passport.

25. I therefore have to conclude that the approach of Mr. Yung was both unlawful in the sense that it was ultra vires the Ordinance, and it was wholly irrational and unreasonable on the facts.

26. Those then were the reasons why, I quashed the decision of the Immigration Tribunal and ordered the matter to be reheard by a differently constituted tribunal.