LAU TAK PUI AND OTHERS v. DIRECTOR OF IMMIGRATION AND ANOTHER

(Consolidated by order of Mr. Justice Mayo
dated 6th September 1991)

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J U D G M E N T

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Sir Derek Cons, Ag. C.J., delivered. the judgment of the Court:

1. On 8th of this month, reversing the decision of the judge sitting at first instance in review of two decisions of the Immigration Tribunal established by s. 53F of the Immigration Ordinance, Cap. 115, this Court held that the tribunal was bound to give reasons for the decisions to which it had come, but that in the two instances in question the reasons given were sufficient. The applicants now seek leave to appeal to Her Majesty-in Council.

2. The application is governed by Rule 2 of the appropriate Order in Council which provides that this Court may give leave

"if in the opinion of court the question involved in the appeal is one which, by reason of its great, general or public importance, or otherwise, ought to be submitted to Her Majesty in Council for decision".

3. The questions which the applicants really wish to bring before Her Majesty are twofold. The first may be expressed as

"Whether the Immigration Tribunal is required, either at Common Law or by reason of s. 53D of the Immigration Ordinance, to give reasons with the same particularity as is expected of a High Court judge";

and the second as

"Was it proper for the tribunal's legal adviser to give advice privately to the tribunal".

Mr. McCoy, who appears today for the applicant as he did below, concedes that the questions as framed in the application are merely illustrative of matters which he hoped might be canvassed during the course of the hearing of the appeal.

4. He suggests that the questions as we have expressed them are of a general nature by reference to the affidavit of Matilda Hong Pe sworn on the 23rd of this month which sets out some 12. instances where judges of the High Court have in similar circumstances given leave for judicial review. These applications are still pending and are said to involve some .18 minors Alternatively Mr. McCoy suggests the questions fall within the "or otherwise" provision of the rule because they affect rights which we accepted in our judgments as being of vital importance in modern society.

5. We appreciate that in one sense this is very much a "particular" matter, relating as it does to the circumstances of the Immigration Tribunal alone and of particular applicants. But on balance we are satisfied that the two points made by Mr. McCoy do sufficiently briny the matter within the rule. For this reason we do give leave to appeal to Her Majesty in Council.