CHAU YIN PING AND OTHERS v. THE DIRECTOR OF IMMIGRATION

HCAL 24/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.24 OF 2000

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J U D G M E N T

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1. This is an application for leave to apply for judicial review. It is made by 11 applicants who assert that they have the right of abode in Hong Kong. Each has a parent in Hong Kong who is a permanent resident, though only two were born after the parent acquired that status. Each has been the subject of a removal order made by the Director of Immigration who has detained them pending their removal. Their ages range between 8 years and 39 years.

2. The circumstances of each is, as one would expect in such cases, different. Some have come to Hong Kong for the first time only after the re-interpretation by the National People's Congress Standing Committee ("NPCSC") on 26 June 1999. That is the position in the case of the 1st, 2nd, 3rd and 7th applicants. Others had been to Hong Kong before, but either unlawfully or on two-way permits and, save in the case of two sisters, the 5th and 6th applicants, have not made claims to the Immigration authorities on those trips for the right of abode.

3. The Director has, in the case of each applicant, made a removal order. The applicants are going to, or intend to, challenge the legality of those orders, for each says that he or she has the right of abode in this territory. The grounds for so saying have not been formulated in that no application for leave to apply for judicial review of the removal orders has been lodged. But legal aid has been granted to each applicant to file such an application. Legal aid was granted in relation to some of these applicants on 14 January, and to others on 20 and 21 January 2000. I am told by Ms Li SC, on their behalf, that each will claim entitlement to right of abode by reason of the January 1999 judgments in Ng Ka Ling and Chan Kam Nga. It will be said that the applicants are not adversely affected by the re-interpretation of June 1999. The framework in which I operate today is not an application for leave to challenge those removal orders - an application itself allied to an assertion of the right of abode. That application has not yet been filed because, so I am told, there are a number of applicants and the issues are complex. It is thought that the application for leave will be ready by 16 February this year, that is, the week after next, with the Chinese New Year holidays intervening. I shall, in the course of this judgment, from time to time refer to that pending application as 'the main case', or 'the main application', to distinguish it from this holding application.

4. The Director of Immigration is not prepared to withhold the execution of the removal orders. He has held his hand for a short while until today but is not prepared, subject to any order this court may make, to delay further. Today's application is directed not at the merits of the right of abode claim, but at the proposal or decision to execute the removal orders. Encouraged perhaps by the course adopted in Wong Fong Teng and Others v. The Director of Immigration, HCAL Nos. 36 & 37 of 1999 and the comments in the judgment of Keith J, as he then was, the applicants seek leave today to apply for judicial review of the decisions to execute the removal orders, which decisions, they say, are unreasonable in the public law sense. They also seek an interim order preventing their removal from Hong Kong until the final determination of this application, and an order directing the Director to release them from detention.

5. The application for leave which has been filed is lengthy and the urgency with which I have been asked to deliver a decision in this matter will provide, I hope, some excuse for not summarising its contents at any length. It will, I trust, suffice to summarise the position of the applicants as follows. It is first said by Ms Li that the approach taken by the Director in this case is to be contrasted with that taken in the allied and well publicised case in which it is said similar issues arose. That is a case involving over 5,000 applicants which goes by the number 81 of 1999. We have today called it "the Pam Baker case", for all in that case are represented by that firm, and it is a convenient way of identifying it at the moment. Proceedings were issued in that case in July 1999, I believe, and the application for leave was adjourned, pending the decision of the Court of Final Appeal in Lau Kong Yung. That decision was delivered in December 1999. In the Pam Baker case, certain undertakings were given not to remove the applicants, and it is said to be illogical and irrational not to do the same in the case of these applicants. In relation to a significant number in that case, an undertaking was given not to remove them until determination of the application for leave, although it is intended in due course, when a current screening process by the Director in relation to those applicants has been completed, to apply for some change in the terms of the undertaking. In relation to another batch of the Pam Baker clients, an undertaking not to remove was given but in somewhat more limited terms.

6. I am not impressed by this particular aspect of the argument advanced on behalf of the applicants. The Pam Baker case was, and is, a most unusual one. Undertakings were given against the backdrop of a mass of applicants, and a claim launched shortly after the re-interpretation, by clients who were already in Hong Kong and when a decision of the Court of Final Appeal was awaited. It cannot be that an undertaking in relation to one particular case can be transposed in this way to another, or that the Director can be said to be acting unreasonably in the public law sense if he declines to match that undertaking in other cases.

7. I am, however, more exercised by a policy of the Director which has been announced and communicated by him in November 1999 to the Legislative Council Panel on Administration of Justice and Legal Services. A paper was presented to that Panel, a copy of which is before me. The paper was the result of a furore resulting from the removal from the jurisdiction of two men whom the Director knew were making an application to the courts on the day of their removal. In that paper, the Director disclosed what he described as his policy and practice on removal of illegal immigrants. In that statement, he said this :

"In removal of illegal immigrants, our objective is to ensure that a right balance between protection of civil liberty and immigration control is maintained. With this in view, the principles guiding our removal of illegal immigrants, including those who are legal aid applicants, are as follows :

(a) the Director of Immigration will suspend the removal if court proceedings have commenced, or he knows that court proceedings are about to commence;

(b) the Director of Immigration will notify the Director of Legal Aid if the detainee who has applied for legal aid but has not been granted is about to be removed;

(c) a removal will be temporarily withheld once legal aid is granted to the detainee; but

(d) an application for legal aid does not constitute a reason for a scheduled removal to be withheld.

These principles are observed as Immigration Department's normal practice. This is notwithstanding that the Director has the legal powers to proceed with the removal irrespective of whether the subject has been granted legal aid, and that the Director is under no legal obligation to inform the Director of Legal Aid of an impending removal where the subject has applied for legal aid but not yet granted."

8. Ms Li asserts that both paragraphs (a) and (c) are covered by the present situation, yet the Director is acting contrary to his announced policy and has given no reason for doing so; and that although he is not obliged to give a reason, the fact he acts in that way without announced reason is prima facie evidence, she says, of unreasonableness in the Wednesbury sense.

9. Mr Fok SC appears today on behalf of the Director and he opposes the application. He asserts that there can be no merit in the suggestion that the Director has acted with Wednesbury unreasonableness. He first takes me to the merits of the applicants' cases; by which I mean that he asserts that none has the right of abode and that that is obviously so. None was an actual party to the January 1999 cases. Four applicants, he says, came to Hong Kong after 26 June, namely, after the re-interpretation; and that of the remaining seven, none had previously made claims to the Director asserting rights of abode so that they could not be said to be the beneficiaries of what has been called the Chief Executive's concession.

10. It seems to me that save to a limited degree, I am not concerned with the merits of the right of abode claim today, for I am not dealing with the anticipated or pending application which is the challenge to the removal orders themselves, the validity of which in turn depend on the merits of the right of abode claims.

11. However, the Director is entitled to point to his assessment of the claims as part of the argument that he cannot be said to be acting irrationally in wanting to execute the removal orders. Nonetheless, I am told by Ms Li that the matters canvassed by Mr Fok do not exhaust the arguments which the applicants intend to put forward in the main application. In any event, and importantly, it seems to me, I cannot possibly assume that the applicants' main claim is one which will prove to have no merit when I do not have the main claim before me, and when I note, as I must, that they have each been granted legal aid to challenge the removal orders. One should assume that legal aid has been granted because the Legal Aid authorities take the view that the main case is arguable.

12. Mr Fok expresses concern on behalf of the Director that immigration be properly controlled, and that that task would be undermined if this court were to grant leave today, the court thereby saying, he suggests, that a mere claim for the right of abode in effect precludes a removal order. I do not believe that the grant of leave today would have the effect of conveying that erroneous message. Each case depends on its own facts and I do not wish to judge what might or might not happen in other cases. I am acutely aware of the fact that the Director has an immensely difficult task and furthermore, that the courts do not have at their fingertips the information which he has by which to make his decisions, or indeed the full immigration picture; and that the merits of a particular case are for him and not for the courts.

13. That said, there are two facts which stand out in this particular case, and it is only this particular case with which I am concerned. The first is that these applicants are not just any claimants who happen to have crossed the border and then approach the Director with some suggestion of a right of abode. These applicants have now been granted legal aid and are about to launch proceedings to assert that they have the right to be in this territory. That is the first fact.

14. The second cardinal fact is that the Director has himself stated what he considers to be a reasonable approach, and he has done so in a policy announced to the Legislative Council.

15. Now it seems to me that these applicants and their particular case fall within the parameters of paragraphs (a) and (c) of that statement. Legal aid has been granted for the purpose of court proceedings; that is, for the main challenge to the removal orders as opposed to this holding challenge, and the main proceedings are about to be commenced.

16. Mr Fok says, however, that the Director has kept to the terms of the policy stated in those paragraphs. He has kept to the terms of that policy, it is said, by holding his hand pending this holding application.

17. I do not think that that is what was intended, or what is reasonably to be understood by paragraphs (a) and (c) of the policy statement. At the least, it is clearly arguable that that is not what those paragraphs mean, or were intended to mean. The legal aid which is normally granted in such cases is not legal aid for a mere holding challenge such as today's, but legal aid to challenge the removal order on the footing that the person has a right of abode. What, it seems to me, is contemplated is that the person will not be removed until the application for leave is determined; and by leave for this purpose, I mean leave in the case which challenges the removal order and which asserts the right of abode. I do not mean leave for an unusual holding challenge of the present kind.

18. The present application is a most unusual sort of application and indeed, Mr Fok says, it creates a procedural conundrum in that, if I grant leave today, the substantive application for judicial review on the question of execution of the orders is in effect decided, because the Director would have been precluded from removing the applicants, and by the time that substantive hearing comes before the courts, it would have been overtaken by the main application which by then would have been launched.

19. But the very fact that he takes the point, and that this is such an unusual application that comes before me today, suggests in itself that the proceedings to which the policy statement was intended to refer were not proceedings of this kind but rather proceedings of the normal kind, the filing of which in this case is now pending. The policy statement cannot, of course, mean that the Director will delay removal without end. The word 'temporarily' is used, and it is implicit that the Director will delay removal only on the assumption that the main application will be filed as soon as practicable.

20. But I am not at present persuaded by Mr Fok's suggestion that in this case the policy has been observed merely by a delay which awaits today's application, but is not prepared to await leave to apply in the main application.

21. I think it arguable that in deciding to execute the removal orders in the face of the grant of legal aid, and in the face of the fact that an application for leave in the main case is obviously to be launched soon, the Director is breaching the policy he revealed to the Legislative Council Panel, and that, in turn, it is arguable that the Director would therefore be acting unreasonably in the public law sense if at present he executed these removal orders.

22. I am dealing today with an application for leave to apply for judicial review of his decision to execute those orders and the threshold is low. I must be satisfied that there is material which discloses matters which, on further consideration, might demonstrate an arguable case for relief. For the reasons I have given, I think that such material is disclosed, and that leave to challenge the decisions to execute the removal orders should be granted. It must follow that I shall grant the interim relief claimed, namely, that the Director should not remove the applicants from the jurisdiction. However, it cannot be that the Director should be required to delay the execution of the removal orders without regard to the speed with which the applications in what I have called the main claim are filed. I am minded to grant leave on the basis that an undertaking be given to file the application for leave to challenge the removal orders themselves by 16 February 2000.

23. The terms of the order which I propose, upon which I shall in due course hear counsel, are these :

(1) Upon the undertaking of the applicants to file and serve, no later than 16 February 2000, an application or applications for leave to apply for judicial review of removal orders made against them by the Director of Immigration for orders of certiorari to quash the said orders, leave is granted to the applicants to apply for judicial review of the decision of the Director of Immigration dated 21 January 2000 to execute removal orders against the applicants; and

(2) The Director of Immigration is restrained, whether by himself, his servants or agents, from removing the applicants from the jurisdiction until the determination on the application for leave aforesaid which is to be filed on or before 16 February, or until further order.

24. Counsel have not addressed me on that part of the application which relates to the detention of these applicants. Two questions arise : whether there should be leave to challenge the decision to detain; and in any event, whether the applicants should be released pending determination of the substantive application in this particular review. On this, too, I shall hear counsel.

[Submissions from Counsel]

25. I have had the benefit of hearing counsel as to the terms of the proposed order, and I shall make the order which I have earlier suggested save for the following addition which I have also earlier intimated, namely, that upon filing of the application for leave to quash the removal orders, there be an expedited hearing of that application.

26. As for the question of detention, the Director has taken the view that in the light of my determination and orders, he is prepared to release the applicants but subject to certain terms. However, those terms are not agreed. Had those terms been agreed, it would in practical terms not have been necessary for me to address the question of the application for leave to apply for judicial review of the decision to detain the applicants pending their removal. That, strictly speaking, is an application which I must briefly address. In most other cases where a removal order is stayed, either by the court or by agreement, pending judicial review, it is practice to allow the applicants to be released pending the determination of the application for judicial review. Since I have found that there is an arguable case that the decision to execute the removal order is unreasonable in the public law sense, it follows, I think, that detaining them is equally susceptible to challenge, in the absence of suggestions that any of these applicants presents a risk of absconding. There is no such suggestion made. I therefore grant leave to the applicants to apply for judicial review of the decision of the Director to continue to detain the applicants pending their removal.

27. I shall grant further interim relief by ordering that the applicants be released until the determination of the application for leave to apply for judicial review, to be filed on or before 16 February 2000, or further order, but subject to the following conditions :

In the case of the 1st, 4th, 5th, 6th, 8th, 9th, 10th and 11th applicants, they are released on their own recognizance of $2,000 each; and in the case of the 2nd, 3rd and 7th applicants, they are released on condition that a surety is provided in the like sum. Each applicant is to report once weekly to the Director of Immigration, the first such report to be made no later than 6:00 p.m. on 9 February 2000.

28. A number of things must be understood by the applicants and by anybody who is listening to what I am saying. It is not to be thought that the conditions which I have just imposed are meant to set some standard for future cases or for other applicants. Nor am I, for one moment, setting any guideline or precedent for the Director of Immigration who usually imposes, and is at liberty to impose, different terms. So it is in relation to all the decisions I have made in this case, that they apply to the facts of this case.

29. In order to avoid any consternation or any panic by relatives or the applicants, Mr Fok has made it clear what is now going to happen in relation to their release. The youngsters, namely, the 2nd, 3rd and 7th applicants will be processed in this building, and once the requisite procedures and conditions are met, they will be released. In relation to the others, they will have to go back to their present place of detention to complete the requisite procedures, but it is intended, and I certainly expect them to be released, subject to the fulfillment of these conditions, today. Most of the applicants, except for the 2nd, 3rd and 7th applicants, will have to enter their recognizances, in other words, they have to sign certain documents. In relation to the two young girls, Cheng Yin and Cheng Yin Nei, and Fong Fei Ying, their parents will have to sign certain papers in this building and they can then be released.

30. So the applicants are required to go through these formalities and should not be alarmed by them since nobody intends to detain them for a moment longer than the formalities will take.

Costs

31. The applicants make an application for costs of this application for leave.

32. Today's argument has been somewhat finely balanced. Whilst I am not persuaded that an order should not be made merely because the applicants are legally aided, on the other hand, it might be said with some force that if there had been a more timely filing of the application for leave in the main application, then today's argument would have been unnecessary. In the circumstances, I consider that there shall be no order as to costs.