RE YAM LAI SAN AND ANOTHER

Headnote

                   Immigration Tribunal.   Requirement that the Tribunal make findings of fact pursuant to s.53D of C.115. Also whether the Legal Adviser to the Tribunal should be permitted to attend the members during their deliberations.

HELD          1.    That while each case clearly is dependant upon its individual circumstances there was a duty imposed upon the Tribunal to make specific findings of fact and to base its conclusion upon such findings.

                    2.    The Legal Adviser could attend upon the members of the Tribunal during their deliberations.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

__________

___________

JUDGMENT

___________

1. In both these cases the fathers of children are seeking Judicial Review of Removal Orders of their children made by the Director of Immigration and the decisions of the Immigration Tribunals upholding the validity of the said Orders.

2. Mr McCoy who was representing the applicants in both cases objected to the admissability of some of the affidavit evidence which was introduced by the respondents. The basis of the objection was that the respondent should not be permitted to introduce new material which would enlarge or vary the scope of the material which was available when the Tribunals heard the applicants' appeals. The authority for this was Lo Wing Tong (1991) 1 HKLR 325. The 2nd paragraph of the Headnote correctly reflects the judgment of the Court of Appeal and reads:

"2.    Those portions of the adjudicator's affidavit evidence which elaborated on his reasons for decision were inadmissible as evidence. Fresh evidence is admissible on judicial review if it comes within the categories laid down in R. v. Environment Secretary, ex parte Powis [1981]1 WLR 584, but these did not include evidence which simply explains or qualifies the reasons for decision of the tribunal below. The offending evidence could be ignored in these proceedings."

3. I accept the submission of Mr. McCoy that certain parts of the affidavits which were filed did come within the categories of what was not permissible in R. v. Environment Secretary Ex parte Powis and although I allowed the evidence to be considered at the hearing before me de bene esse I have disregarded the evidence which was inadmissable on these guidelines. I do not consider it to be necessary for the purposes of this judgment to spell out in detail the evidence which I have placed reliance upon save to state that I did not consider that the transcripts of the hearings before the Tribunal offended against the principles propounded and that the areas of evidence which did offend the said principles were not of major importance so far as the relevant issues were concerned in the hearing before me. In the main the parts which appeared to me to be objectionable related to the evidence concerning the procedures which were adopted at the hearings and the importance of the additional evidence was at best marginal.

4. In both of these applications the main issue which was before the Tribunals was whether or not the children referred to were born in Hong Kong, thus entitling them to remain here.

5. In HKMP 1832 Mr. McCoy placed reliance on the 3rd Ground for Relief which was in these terms:

"3.    The Tribunal never made any specific findings of fact as required by s.53D(1) of C.115."

6. The Grounds for Relief in HKMP 2316/91 were as follows:

"1.	The Legal Adviser to the Tribunal ought not have remained with the tribunal throughout the entire deliberations. Justice was not seen to be done.  Re Sussex Justice Exp McCarthy [1924]1KB 256.
2.	The Tribunal failed to make any findings of facts or give reasons or set out in substance what evidence they do or do not accept as is required by Section 53D Immigration Ordinance and by common law.
3.	The decision of the Tribunal wasWednesbury unreasonable."

7. I will deal first with the ground which is common to both cases namely whether the findings of fact recorded by the Tribunals in each or either case complied with the statutory requirements:

        The "facts of your case" given for dismissing the appeal in 1832 were:

"Case Ref: RBCLs 1638/91 & 1639/91

Names of Appellants: Master LAU Tak-pui & Miss LAU Tak-miu

After careful consideration of the evidence given by all parties concerned and by the witnesses presented, the Tribunal has come to the conclusion that the Appellants have not discharged the burden of proof that they were born in Hong Kong and therefore do not enjoy the right of abode in Hong Kong under Section 2A of the Immigration Ordinance.

 

The appeal is dismissed"

 

In 2316 they were:

 

"(IT97/91)

 

Case Ref: RBCL 1873/91

Name of Appellant: Miss YAM Lai-san

 

It is common ground that Mr. & Mrs. Yam have given birth to a daughter Yam Lai-san (the appellant). This Tribunal has considered all the facts and evidence presented and has heard the witnesses. The Tribunal has found many of them not particularly helpful in supporting the claim that the appellant was born in H.K.

 

This Tribunal is unable to find consistent evidence given by the father and the mother in the process of delivering their daughter Lai-san.  Further to the contradicting evidence presented the Tribunal has found that the father had displayed ignorance of the delivery of a baby which he claimed was done by him when his son was born in Feb. 1991. Hence, this Tribunal has good reasons to believe that the appellant was not born in H.K. and does not enjoy the right of abode in H.K.

 

Case dismissed."

Mr. McCoy submitted that the "facts" recorded in the Decisions in no way complied with s.53D. The section reads:

"53D.    Determination of appeals

(1)    On an appeal under section 53A against a removal order-

 

(a)    where the Tribunal determines that on the facts of the case as it finds them the appellant-

 

(ia)    does not enjoy the right of abode in Hong Kong; and (Added 31 of 1987 s.23)

 

(i)    does not have the right to land in Hong Kong under section 8(1); and

 

(ii)    does not, disregarding the effect of the removal order under section 19(4), have the permission of the Director of Immigration to remain in Hong Kong,

 

it shall dismiss the appeal; and

 

(b)    in any other case it shall allow the appeal and rescind the removal order.

 

(2)    The decision of the Tribunal under this section or section 53C shall be final.

(Added 62 of 1980 s.9)"

8. This is a subject which has been before the Courts on a number of occasions. It came before Godfrey J. in MP537 of 1987 which is unreported. Godfrey J. had this to say on p.6 of his judgment:

"Section 53D provides that on an appeal under Section 53A against a removal order where the Tribunal determines that, on the facts of the case as it finds them (my emphasis), the appellant does not have the right to land in Hong Kong under Section 8(1), it shall dismiss the appeal; but in any other case, it shall allow the appeal and rescind the removal order.

 

The reference made in the section to "the facts of the case as it finds them" suggests, to my mind, that any person whose appeal is rejected by the Tribunal is entitled to know what are the facts of the case which have been found by the Tribunal. If he does not know what are the facts of the case as found by the Tribunal, he is in no position even to consider whether or not the decision of the Tribunal can be challenged.

 

The point has been adverted to by Mr. Justice Silke, sitting as a Justice of Appeal, in Cheung Cheong v. Attorney General, Civil Appeal 1986 No.122 (unreported). What the Justice of Appeal said in that case was obiter dictum, but that does not deprive it of its value as exhibiting good sense and good reason.

 

In the concluding passage of his judgment, Mr. Justice Silke said:

 

"I would only wish to add this.  The right of appeal conferred by Section 53A of the Immigration Ordinance, Cap. 115 is a restricted one. The burden of proof is placed squarely upon an appellant. That appellant must lodge his notice of appeal setting up the grounds upon which he relies within 24 hours of his being informed of a removal order having been made ..... the Tribunal is enjoined by Section 53D(1)(a) to find facts, for it determines the appeal "on the facts of the case as it finds them". It would seem that the practice has grown up of using a proforma "Reasons for Decision" wherein such facts as are found by the Tribunal are not set out. For myself, I would have thought it to be the duty of the Tribunal to, at least shortly, set out the actual facts which it finds and upon which it bases its determination. These matters affect the liberty of the individual and a man is entitled to know upon what basis the Tribunal finds against him."

 

I entirely and respectfully agree. As will be seen, this will be the ratio decidendi of my judgment in the present case. In my judgment, a man is entitled to know upon what basis the Tribunal finds against him, so as to enable him make an informed judgment on the question whether or not he has a proper ground for an.application to the Court for a review of the tribunal's decision."

9. I have no doubt that the views expressed by Godfrey J. and Silke JA., as he then was, are entirely correct.

10. The question which I have to decide is whether "the facts" referred to in these 2 cases are sufficient. Mr. Graham for the Tribunals contended that they were. He argued that there was no requirement for the Tribunal to give any reasons for its decisions. It was obvious in both cases what the main issues were before the Tribunals namely whether the children referred to had been born in Hong Kong or not. When cognisance was taken of this it must have been obvious to the applicants in both these cases why the appeals had been dismissed. In each case a burden of proof had laid on the appellants and it was obvious from the facts referred to that the burdens had not been discharged.

11. I will deal first with the facts given in 1832. I find myself largely in sympathy with the submission made by Mr. McCoy that the facts referred to almost amounted to boilerplate reasons. A rubber stamp could be prepared referring to these "facts" and it could be applicable to almost any case coming before a Tribunal. It was almost entirely uninformative and the appellant would have no means of knowing why his appeal had been rejected.

12. I am satisfied that what is envisaged by the legislation is that the Tribunal must specifically make findings of fact on the evidence before them and this should be evident from a perusal of the record.  I do not think that it is intended that a lengthy judgment is required. Nor do I think that detailed reasons for any decision which is made are necessary. The minimum required is a short statement indicating the parts. of the evidence of witnesses which are rejected and the parts which are accepted and the conclusion which is reached on the findings of fact.

13. I do not consider that this minimum requirement has been met in 1832.

14. I will now turn to 2316. The facts referred to by the Tribunal are in slightly more detail than those in 1832.

15. I still do not regard them as being sufficient. It is evident that the main reason given for dismissing the appeal is that "the father displayed ignorance of the delivery of a baby which he claimed was done by him when his son was born in February 1991."

16. Mr. McCoy referred me to the transcript of the notes of Mrs. Ng Chow May Lin, one of the Adjudicators recording the applicant's evidence in this connection:

The above are all lies!

Warning!"

17. I accept that the notes kept by the other Adjudicator Mr. Yeung Ka Sing were much fuller. These, however, tend to indicate that the real reason why the appeal was dismissed was the unsatisfactory nature of the evidence given concerning the movements of both the applicant and the mother of the child. It appears that no satisfactory explanation was given why the applicant went  to China shortly before and after the alleged birth in Hong Kong. This was indicative of it being much more likely that the confinement had occurred in China when this was taken in conjunction with the evidence that the friend who was supposed to look after the mother when the applicant returned to China had in fact accompanied him to China.

18. Be that as it may the facts recorded by the Tribunal are highly unsatisfactory.  It is difficult to understand how the Adjudicators could have come to any conclusion that the evidence given by the applicant in respect of the delivery displayed an ignorance in this subject. Neither of the Adjudicators apparently has any medical qualifications and certainly there is no indication of any medical expert testimony being available to the Tribunal.

19. The facts given by the Tribunal are so scanty and inadequate that I am satisfied that the minimum requirements I have referred to have not been met.

20. I will now shortly consider the other grounds referred to in 2316.

21. It is complained in Ground 1 that the legal advisor should not have been permitted to remain with the Adjudicators during their entire deliberations.

22. Mr. McCoy placed a considerable amount of reliance upon the case of Chien Sing Shou v. The Building Authority (1967) HKLR 352 and in particular the speech of Lord Morris of Borthy Gest. I do not think that this case is of much assistance to the contentions advanced by Mr. McCoy. The situation in that case was entirely different to the present case in that the legal adviser referred to was a member of the relevant Board. In the present case the legal adviser is not a member of the Tribunal.

23. I consider that the present case is much more closely akin to lay Justices being assisted by a legally qualified clerk. It would not appear from the cases which were cited to me by Mr. Graham that there is any impropriety if a Justice's Clerk attends upon lay Magistrates during their deliberations. I would not be prepared to grant any relief on this ground.

24. The final question I must decide is whether the Tribunals decision was unreasonable in the context of Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. (1948) 1 KB 223.  Load Greene summarised the relevant principles at p.233 of that case:

"I do not wish to repeat myself but I will summarise once again the principle applicable.  The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."

25. This is a high threshold. I have no doubt that the applicant can not on the material which is before me come anywhere close to surmounting it. It is well within the bounds of possibility that the applicant's first child was not born in Hong Kong and is not entitled to a right of abode. It is impossible to hold that no reasonable Tribunal could have come to the conclusion that the applicant had failed to discharge the burden of proof which lay on him to establish that the baby was born in Hong Kong. This ground must also fail.

26. As I have earlier indicated I am satisfied that the applicants in both cases have suceeded on the ground that the Tribunal have failed to find facts as they are required to do under the legislation.

27. The relief which is sought in both cases is a writ of certiorari quashing the 2 orders which are the subject of these applications.

28. I propose hearing submissions from counsel on the form of the orders which I should make. I will also hear counsel on costs.