CHAN CHOI HUNG AND ANOTHER v. IMMIGRATION TRIBUNAL AND ANOTHER

HEADNOTE

Judicial Review - Sole respondent before the High Court was the Immigration Tribunal appointed to hear an appeal under s.53A(1)(aa) Immigration Ordinance. Held (by the Court of Appeal): Director's appeal allowed. High Court had no jurisdiction to quash removal orders made by the Director of Immigration under s.19(1)(b). Judge's order quashing removal orders set aside. Observations on the functions and duties of the adjudicators and of the Immigration Tribunal under the Immigration Ordinance: they must not be "snarled up in arcane or artificial rules or requirements".

IN THE COURT OF APPEAL

1993, No. 117
(Civil)

______________

_____________________

J U D G M E N T

_____________________

Litton, J.A.:

1. The appellants are two children: Chan Choi Hung, aged approximately seven-and-a-half years and Chan Choi Ping aged about six-and-a-half years. Their father (Mr. Chan) is a permanent Hong Kong resident. Their mother (Mrs. Chan) was born in China, with no right of abode in Hong Kong. There is no record of the births of the two children in any hospital or clinic in Hong Kong. The question as to where, in truth, these children were born is clearly important: if they were born in Hong Kong, even to a mother who was an illegal immigrant from China, they have a right of abode here. If, however, they were born in China, then, like their mother, they are liable to be removed from Hong Kong by order of the Director of Immigration under section 19(1)(b) of the Immigration Ordinance. We are, however, not concerned with that matter. These proceedings have a much narrower scope.

First appeal to Immigration Tribunal

2. The matters which gave rise to the present litigation came about in this way. In October 1990 Mr. and Mrs. Chan reported to the Immigration Department with the babies, seeking to "regularise" their status. The Director of Immigration made inquiries and eventually, on 27 August 1991, made removal orders against Mrs. Chan and the two children pursuant to s.19(1)(b) of the Ordinance. The children, acting by their father Mr. Chan, appealed to the Immigration Tribunal against the removal orders, as they are entitled to do under s.53A(1)(aa) of the Immigration Ordinance, on the ground that they enjoyed the right of abode in Hong Kong. This involved the determination of a relatively simple issue of fact: where were these children born? Unfortunately, there were procedural improprieties in the way the tribunal conducted the appeal and, by order of the High Court made on 10 September 1992, the decision of the Tribunal dismissing the children's appeal against the removal orders was quashed. The High Court directed a rehearing of their appeals by a differently constituted tribunal.

Second appeal to Immigration Tribunal

3. The children's appeal was heard afresh by a second Tribunal on 28 October 1992 which, after having considered the evidence adduced before it, once again dismissed the appeals.

4. In about January 1993 the children were granted legal aid to seek judicial review of the Immigration Tribunal's decision of 28 October 1992. The Director accordingly took no steps to execute the removal orders, pending the outcome of those proceedings.

Application for leave to issue proceedings for judicial review

5. On 27 January 1993 solicitors for the children lodged an application, pursuant to Order 53 r.3 of the Rules of the Supreme Court, for leave to apply for judicial review of the decision of the tribunal made on 28 October 1992. The only order sought to be impeached was the order of that tribunal dismissing the children's second appeal against the removal orders. The grounds stated in the notice of application were as follows:

" GROUNDS UPON WHICH RELIEF IS SOUGHT

1. The Immigration Tribunal conducted the re-hearing in breach of natural justice by:-

(a) allowing the Immigration Officer to choose the order of witnesses and to cross-examine them without allowing the Applicant to examine or cross-examine the witnesses; and/or

(b) not assisting the unrepresented and untrained Applicant in presenting his children's case; and/or

(c) retiring with the Immigration Officer and the Legal Adviser to decide the appeal; and/or

(d) not informing the Applicant of the legal advice or other advice rendered by the Legal Adviser to the Immigration Tribunal so as to allow the Applicant to attempt to deal with it; and/or

(e) predetermining the appeal before hearing the oral evidence.

2. The Immigration Tribunal misconstrued the procedural requirements governing its conduct in relation to the onus and standard of proof. In particular the Immigration Tribunal failed to inform the Applicant of their concern in relation to the matters canvassed in their decision so that he might address them. Further particulars of this ground will be provided once the Immigration Tribunal makes available their Notes of Evidence of the re-hearing - which thus far it has refused to do.

3. As a result of the matters set forth in the preceding 2 paragraphs the Immigration Tribunal has prevented or impeded the Applicant from properly presenting his children's case and from adducing evidence to address the concerns of the Immigration Tribunal which were expressed to the Applicant for the first time in the Immigration Tribunal's decision.

If leave to apply for Judicial Review is granted it is proposed that the Respondent to the Motion be:-

The Immigration Tribunal."

6. By order dated 29 January 1993 Rhind J. gave leave to the applicants to apply for judicial review. Having regard to the nature of the application before him, the only leave which Rhind J. could have given was to apply for judicial review of the decision of the Immigration Tribunal made on 28 October 1992. For this reason the only respondent to the application was the Immigration Tribunal.

Inter partes application

7. However, when the solicitors came to issue the proceedings, what they sought on behalf of the applicants was "an order of certiorari to bring up into the High Court for the purpose of quashing the removal orders dated 27 August 1991 made against the applicants by the Deputy Director of Immigration and also the decision of the Immigration Tribunal dated 28 October 1992" (emphasis added).

8. This application was plainly too wide. As can be seen, the grounds set out in the application for leave sought simply to impeach the decision-making process of the Immigration Tribunal; they in no way sought to challenge the legal validity of the removal orders made by the Director. No leave had been given by Rhind J. to bring proceedings for the purpose of quashing the removal orders. The application for relief, aimed at quashing the removal orders made by the Director, was plainly misconceived. Apart from the absence of ex parte leave for such proceedings, the necessary party was not before the Court: that is, the Director whose orders were under attack.

The hearing

9. The motion was heard by Jones J. on 28 May 1993 and judgment was delivered on the same day. Jones J., quite rightly, stated at the commencement of his judgment that the motion before him was "for an order for certiorari to quash the decision of the Immigration Tribunal made on the 28 October 1992 that upheld decisions of the Director of Immigration to make removal orders against the children on 27 August 1991": that was the only motion properly before him. He recited the facts, referred to the first decision of the Tribunal (quashed in subsequent judicial review proceedings) and then dealt at length with the hearing on 28 October 1992 when Mr. and Mrs. Chan attended before the Tribunal with their two children and also with two witnesses: Madam Cheng and Madam Tsang. The judge recited the written decision of the Tribunal and focused on a sentence to this effect: "Mr. Chan ... has been unable to produce a single piece of evidence to prove that the two Miss Chans were born in Hong Kong" and remarked that this was "quite astonishing", as both Mr. and Mrs. Chan had testified to the effect that the children were born at home in Hong Kong and Madam Cheng and Madam Tsang had both said that they had seen Mrs. Chan pregnant in Hong Kong. The judge also criticized the sentence: "The other witnesses [meaning Mesdames Cheng and Tsang] were also unable to prove anything to the appellant's advantage." The judge concluded that the decision of the Tribunal was "irrational", for there was evidence before the Tribunal to support the claim that the two children were born in Hong Kong, if such evidence was found by the Tribunal to be truthful and reliable.

10. There were also two further grounds for quashing the decision of the Tribunal, based on procedural irregularity: (1) Mr. Chan was not given the opportunity to adduce documentary evidence to support his claim that he went to China to see his mother who was ill and who subsequently died and (2) the Tribunal appeared to have decided the case on a higher burden of proof than the balance of probabilities.

11. The judge then concluded his judgment by saying:

"In the result and for the reasons that I have given, I am satisfied that an order for certiorari should be made quashing the decision of the Immigration Tribunal and the removal orders made by the Director of Immigration". (emphasis added)

No reasons given in the judgment could have supported the conclusion underlined. The formal order was sealed and perfected on 1 June 1993 and it included an order quashing "the Removal Orders made by the Director on 27 August 1992 [sic]", meaning presumably the Removal Orders of the previous year.

Director applies to be joined

12. Not surprisingly, when the Director of Immigration learnt of Jones J.'s order he applied to be joined as a party, to enable him to appeal against the order. A summons for this purpose was heard by Bewley J. on 8 July 1993; it was unopposed; the judge made an order that the Director be joined as the 2nd respondent in the proceedings. The next day, 9 July 1993, the Director gave notice of appeal: this became Civil Appeal No. 117 of 1993, to challenge the order quashing the two removal orders.

Appeal against Bewley J.'s order of joinder

13. Surprisingly, on 22 July 1993, a notice of appeal, signed by counsel, was lodged on behalf of the two children, appealing against Bewley J.'s order of joinder and it was this appeal, Civil Appeal No. 124 of 1993, which was listed for hearing before us on the afternoon of 3 September 1993. The main argument advanced on behalf of those appellants was that Bewley J. had no jurisdiction to make the order "since the High Court was functus officio". The effect of the argument is simply this: If a party succeeds, somehow, in obtaining an order from a trial judge behind the back of another party, that party will have no redress of any kind: it cannot be joined as a party in the proceedings because, by the time he hears of it, the order would have been perfected and the court rendered "functus officio": and he cannot appeal because he is not a party. The absurdity of the proposition has only to be stated to be self-evident. On 3 September 1993 we dismissed the appeal in Civil Appeal No. 124 of 1993 with costs and forthwith required the Director of Immigration's appeal in Civil Appeal No. 117 of 1993 to be called up for hearing, since the legal representatives of all the necessary parties were before the court. We called upon Mr. Barlow, counsel for the two children, to advance arguments to justify Jones J.'s order to quash the Removal Orders of 27 August 1991. That matter remained part-heard and was adjourned to to-day.

The Director of Immigration's appeal

14. The grounds of appeal identify five errors. In essence they are:

1. The judge erred in quashing the removal orders when there was no application for such an order.

2. He erred in quashing the removal orders when the appellant was not a party to the proceedings in the court below.

3. He erred in quashing the removal orders in the appellant's absence.

4. He erred in failing to distinguish between the Immigration Tribunal and the appellant.

5. He erred in quashing the removal orders in that he thereby made a decision on the substance and not the procedure of the removal order, and, furthermore, did so without hearing any evidence on the matter.

15. It is, as I understand it, Mr. Barlow's case that the judge cannot be treated as having made an accidental slip when he made the order quashing the removal orders of 27 August 1991; the evidence tending to show that the two children were born in Hong Kong was so strong, he claims, that the judge must have been persuaded that the removal orders themselves, made by the Director, were aberrations, and therefore, with his eyes open, the judge made the order he did. To my mind, that would have been most surprising, since the matter in issue before the judge was not the decision-making process of the Director in August 1991 but the functioning of the Tribunal and the way it acted on the children's statutory appeal in October 1992. The judge might not have known that no leave to challenge the Director's order in judicial review proceedings had been given, having regard to the way the motion before him was framed, but he could not have been ignorant of the fact that the Director was not before him as a party. In this regard, the observations of Lord Greene M.R. in Craig v. Kanssen [1943] 256 at 262-3 are helpful:

"Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it has never been adopted in this country. It cannot be maintained that an order which has been made in those circumstances is to be treated as a mere irregularity and not as something which is affected by a fundamental vice."

16. In my judgment Jones J. simply had no jurisdiction to make the order he did, and the Director's appeal must be allowed.

Respondent's Notice

17. Since the hearing on 3 September 1993 a Respondent's Notice has been lodged on behalf of the children. This seeks an order to the effect that if Jones J.'s order of 28 May 1993 quashing the Director's removal orders should be set aside on appeal, this court should make an order requiring the Immigration Tribunal (meaning presumably the two-person tribunal which heard the children's appeal on 28 October 1992) to be reconvened "for the purpose of deciding whether, in the light of [Jones J.'s] judgment, the Tribunal should allow the applicant's appeals and rescind the removal orders". Mr. Marshall Q.C., counsel for the Director who appears on this appeal, does not oppose the making of such an order and appears indeed at one time to have consented to a draft order in identical terms. In my judgment we should make no such order, for a variety of reasons.

18. First, the Tribunal is not represented now before us on this appeal, having apparently decided not to appeal against Jones J.'s order quashing its determination on the children's appeal. The only appellant now is the Director appealing against the judge's order quashing the removal orders of 27 August 1991: it is difficult to see how Mr Barlow's Respondent's Notice complies with Order 59 r.6(1)(a) which confines the scope of such notice to "the decision of the court below": it is the decision under appeal which might be varied under that rule.

19. Secondly, the Immigration Ordinance and the Regulations leave wide scope to the chief adjudicator to determine the composition of each Tribunal appointed to hear an appeal. There is no such thing as a standing Immigration Tribunal charged permanently with the duty of hearing statutory appeals; a tribunal is appointed each time there is a valid appeal under s.53A. There is no material before us to enable us to decide that the children's appeal, now re-constituted, would be better determined by the same Tribunal which heard the evidence in October last year. We have not even been told that the same two adjudicators Mr. Raymond Chow Wai-kam and Miss Ada Wong Man-pui are still available to serve.

20. Thirdly, a tribunal appointed to hear an appeal under s.53A of the Ordinance has a wide discretion to regulate its own proceedings, in order to fulfil its function under the statute: here, it is to determine a relatively simple issue of fact, namely, whether the two children were born in Hong Kong, as their parents allege. The suggestion that this court should require the Tribunal to "decide whether, in the light of Jones J.'s judgment, the appeal should be allowed" is liable to lead to misunderstanding.

21. I would therefore, for my part, decline to make the order as proposed, even though Mr. Marshall Q.C. for the Director might at one time have consented to it.

22. Without in anyway seeking to criticize Jones J.'s judgment - since the Tribunal has not appealed and the matter therefore has not been argued - I am bound to say that I am troubled by some of the expressions used in his judgment. The adjudicators are not lawyers and cannot be expected to couch their determination in language familiar to lawyers: the statute does not so require. Thus, when they say that "the other witnesses", meaning presumably Mesdames Cheng and Tsang, "were unable to prove anything to the appellant's advantage", they must have meant this: the fact that those witnesses had seen Mrs. Chan pregnant did not of itself support the parents' story. This conclusion would, for instance, be logical if they only saw Mrs. Chan in Hong Kong some considerable time before the birth. It depends upon the circumstances surrounding that piece of evidence as to whether it supported the parents' case or not. The judge did not, in his written judgment, elaborate upon his criticism of the Tribunal's finding, beyond saying that it was "wrong" because the two witnesses said "they had seen Mrs. Chan when she was pregnant in Hong Kong." The foundation for the judge's criticism is simply absent from his judgment.

23. I appreciate that these two children have been in litigation since early 1992 when appeals to the Immigration Tribunal were first lodged on their behalf under s.53A, for the determination of an issue of fact vital to their future: were they born in Hong Kong? The sooner the matter is finally resolved, one way or the other, the better. Tribunals appointed to hear appeals are expected to exercise their common-sense, and it would be a grave disservice to the community if they thought that the courts, by the exercise of power on judicial review, have bound them up with artificial rules. The first approach of a tribunal of fact, any tribunal of fact, is to look at the inherent probabilities, and questions like these would automatically spring to mind: Would Mr. and Mrs. Chan have risked the lives of their babies, and Mrs. Chan's own life, by having Mr. Chan deliver them at home? Were the babies immunized after birth? If so, were there no records? Did they think of keeping some photographic evidence of their births? These are simply examples. Nothing in the judgment suggests that the Tribunal did not approach their determination in this way; and whilst it might have been better if they had articulated their thought-processes more clearly in their written determination, the Ordinance and the Regulations do not require detailed reasons to be given. Neither does the common law applied in judicial review proceedings. And as regards the question whether the same tribunal should reconsider its former determination, based partly on the evidence previously before them, and partly on fresh material: for instance, documentary evidence regarding Mr. Chan's visit to China, etc: this is not a decision this court can make. Many other circumstances need to be considered; the record of the previous proceedings will have to be looked at (if such record be kept). So long as the Tribunal charged with the duty of determining the children's appeals exercises its judgment to the best of its ability, in order to fulfil its statutory function, namely, the determination of the issue of fact before it, a court of law is unlikely to interfere with its determination.

24. In my judgment by far the best course is to leave the children's outstanding appeal to the discretion of the chief adjudicator and the tribunal he appoints, in the light of all the circumstances then prevailing. He will be able to take into account those factors which Mr. Barlow has urged upon us, for instance, the willingness of Mesdames Cheng and Tsang to attend further as witnesses, whether it is practicable to use the evidence already given as evidence in the fresh determination, whether to order a complete rehearing of the appeal and other similar matters. The chief adjudicator and the tribunal he appoints will doubtless seek legal advice before they proceed.

25. For the reasons given I would allow the Director's appeal, set aside the judge's order quashing the removal orders of 27 August 1991, and order that the Director should have his costs on this appeal, There should also be a certificate for the taxation of the respondent's costs under the Legal Aid Ordinance.

Penlington, J.A.:

26. I agree that this appeal be allowed for the reasons given and I agree with the orders proposed.

Bokhary, J.A.:

27. For the operative reasons which he has articulated, I agree with the orders proposed by my brother Litton.

28. I wish expressly to associate myself with his statement to the effect that the Immigration Tribunal is not - and must never be allowed to labour under the misapprehension that it is - in any way snarled up in arcane or artificial rules or requirements.

29. What is required - and all that is required - of persons sitting on tribunals of this kind are that they: (i) use their common-sense and experience of life; (ii) go about their task in a fair-minded manner; (iii) make up their minds in a level-headed way; and then (iv) give their decision and the reasons for it in plain and simple language, reasonably fully but not necessarily at great length or in any great detail.