ATTORNEY GENERAL v. IMMIGRATION TRIBUNAL and Another

1995 M.P. No. 2182

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. This is an application by the Director of Immigration (the Director), pursuant to leave granted by Mr. Justice Findlay on the 11th of August 1995, for an order of certiorari to quash the decision of the Immigration Tribunal (the Tribunal) made on 22nd of May 1995 to allow the appeal of Chen Huan-qiong (the Appellant) and an order of mandamus to direct the Tribunal to determine the said appeal according to law.

2. The Appellant came to Hong Kong on the 7th of February 1990 as a visitor. She used a Panamanian Passport No. N-17-6882 (the passport) issued on the 19th of January 1990 in Panama. She was granted permission by the Director to remain in Hong Kong as a visitor which permission was subsequently extended to the 13th of March 1990. Three days before the permission to remain expired, the Appellant married a Hong Kong resident, Fung Lai Man (Fung) on the 10th of March 1990. On the 12th of March 1990, the Appellant applied to the Director to change her status to that of a dependent wife. On the 3rd of May 1990, the Appellant was granted the permission to stay in Hong Kong as a dependent wife which permission was subsequently extended to the 3rd of November 1993.

3. On the 21st of January 1993, the Appellant was intercepted and detained by the Director at the Hunghom Railway Station when she presented the passport to leave Hong Kong to go to China. She was released on bail the following day pending inquiries into the validity of the passport.

4. The Director, upon further investigation, determined that the passport was forged and that the permission granted to the Appellant to enter and remain in Hong Kong was null and void as she had landed in Hong Kong unlawfully. The Appellant was served with a removal order dated the 9th of July 1993 (the removal order).

5. The Appellant appealed against the removal order (the First Appeal) under Section 53A of the Immigration Ordinance on the ground that she had the permission of the Director to remain in Hong Kong and the appeal was heard by an Immigration Tribunal consisting of two adjudicators, Mr. P.M. Rattigan and Mr. L. Yung. In his very detailed judgment dated 30th of June 1994, Mr. Rattigan dismissed the appeal, having found that the passport was forged. In a separate judgment dated the same day, Mr. Yung found it difficult to decide if the passport was genuine or not and he declined to make a decision.

6. Instead Mr. Yung recommended that the Appellant be given a grace period of six months for her to rectify the details in the passport and a Panamanian identity card also issued to the Appellant. Mr. Yung further recommended that if the Appellant failed to rectify the passport and her Panamanian identity card, her appeal should be dismissed.

7. It was considered that as Mr. Rattigan and Mr. Yung could not agree, under paragraph 3(2) of the Third Schedule of the Immigration Regulations, the appeal should be allowed and the removal order against the Appellant rescinded.

8. The Director sought judicial review of the determination of the Tribunal in the First Appeal and the matter went before Mr. Justice Kaplan as he then was. Mr. Justice Kaplan allowed the application of the Director and quashed the decision of the Immigration Tribunal. He concluded that Mr. Yung's approach to allow the Appellant six months to rectify the passport and her Panamanian identity card was unlawful as it was ultra vires the Ordinance and it was also wholly irrational and unreasonable on the facts. It was decided that paragraph 3(2) of the Third Schedule of the Immigration Regulations had no application as neither Mr. Rattigan nor Mr. Yung had allowed the appeal. Mr. Rattigan had dismissed the appeal and Mr. Yung simply failed to make a decision.

9. Mr. Justice Kaplan remitted the matter to the Immigration Tribunal to be determined by a differently constituted Tribunal. Mr. Justice Kaplan did not decide if Mr. Rattigan's finding that the passport was forged was correct on the evidence. He, however, decided that the burden was on the Director to establish on the balance of probabilities that the passport was forged. He also decided that the letter dated 27th of January 1993 addressed to the Director from the Consul General of Panama to the effect that the passport did not belong to the Appellant was admissible under regulation 5 of the Immigration Regulations in the Third Schedule to the Ordinance.

10. The suggestion was that a hearing before the Tribunal was not to be bound by the strict rules of evidence and that parties could put forward any material which they thought appropriate and it was for the Tribunal to assess its weight.

11. Mr. Justice Kaplan also attacked Mr. Yung's observation that if the Panamanian Consul General of Hong Kong claimed that the passport was forged, the Appellant would have been picked up earlier by the Immigration officers and prosecuted under criminal offence. Mr. Justice Kaplan concluded the fact that the Appellant 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. He relied on the decision of Neill, L.J. in R. v. Immigration Officer, ex parte Chan [1992] 1 WLR 541 at 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 had 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)."

12. Pursuant to the direction of Mr. Justice Kaplan, the Appellant's appeal was re-heard before the Tribunal on the 22nd of May 1995 (the Second Appeal). The Tribunal in the Second Appeal consisted of the two Adjudicators Mr. George Chu Fung-chee and Mr. Paul Fan Chor-ho.

13. Mr. Chu allowed the appeal of the Appellant and Mr. Fan dismissed the appeal. Under paragraph 3(1) of the Third Schedule to the Immigration Regulations, the Tribunal shall allow the appeal if either adjudicator hearing the appeal considers that the appeal should be allowed. Hence the appeal by the Appellant was allowed and the removal order was quashed again.

14. The Director now seek to quash the decision of the Tribunal in the Second Appeal.

15. It was the Director's contention that the passport was forged and the Appellant entered Hong Kong unlawfully. The permission granted to her to enter and to remain in Hong Kong was therefore null and void. The Director's case rests principally on a letter dated 27th of January 1993 from the Consulate General of Panama in Hong Kong to the Director.

16. In response to a letter dated 26th January 1993 by the Director to him inquiring about the authenticity of the passport no. N-17-6882 issued on 19-ENE-90 to the Appellant and an "electorial identification card" also issued to the Appellant, the Consulate General of Panama in Hong Kong stated the following in his letter to the Director dated 27th January 1993:

"This is to inform that your enquiries have been forwarded to the National Director of passport of Panama, Licda. Mercedes Garcia de Villalaz, for further investigation. Licda. de Villalaz 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 QIONG. 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 addition, 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."

17. The "electorial identification card" which bore the photograph of the Appellant suggested that the bearer was a male when it had the letter "M" under the "sexo' column. The document was in Spanish, but there could be no doubt that "M" and "F" stood for "Male" and "Female" respectively. In the Panamanian passport of the Appellant, under the "sexo" or "sex" column, the box for "F" was crossed to show that the holder was a female.

18. From some of the documents seized from the Appellant by the immigration officers, it appeared that prior to October 1989, the Appellant had been living and working in Quangzhou, China. In particular, there was immigration records to show that the Appellant arrived in Hong Kong on 24th of October 1989 and was allowed to remain until 31st of October 1989. She left Hong Kong on 30th of October 1989 and the destination was declared to be Panama. There was also a document titled PRC National Application Form for Exit which indicated that the Appellant applied to leave China to go to Panama and the document appeared to be dated 16th September 1985 although the translation put it as 16th September 1989.

19. Before the Tribunal in the Second Appeal, the Appellant said she first went to Panama in the early eighties. She said her uncle was operating a supermarket in Panama and she stayed there for a few months and obtained a temporary Panamanian identity card. She then returned to China to work and there had been many occasions when she traveled between China and Panama.

20. The Appellant said she went to Panama again in 1989. Her uncle took her to a place where there was a marshal and she was accompanied by a solicitor. The marshal was wearing the uniform of an immigration official and she was asked to make declarations and she was fingerprinted.

21. Then there was the incident on the 9th of December 1989 when the American Army invaded Panama and caught the Panamanian dictator Loreiga and the Appellant was unable to receive her passport. It was only after the capture of Loreiga and when the war was over that she obtained the passport on the 19th of January 1990.

22. The Appellant said she was unable to make a living in Panama and she decided to come to Hong Kong to marry her husband. She left Panama on the 5th of February 1990 and arrived Hong Kong on the 7th of February 1990.

23. The Appellant was unable to say how many times she had been to Panama between the first time she went and 1989 when she obtained the passport. She was also unable to say during such period, how often she was in Panama and how often she was in China.

24. She was asked about the "electorial identification card" (the Panamanian identity card) in her name. She said it was the second identity card issued to her in Panama. She said she was not sure about the entry of "M" under the "sexo" column. She said the card enabled her to find work in Panama and she carried the card with her just as she carried a Hong Kong identity card issued to her in Hong Kong.

25. The Appellant was unable to say how often or how long she stayed in Panama prior to 1989. But in a letter addressed to the Director dated 9th of April 1990 in support of her application to stay in Hong Kong, she suggested that she went to Panama on the strength of a Chinese Passport in 1983 and have stayed there to work for seven years. She also said during such period, her uncle assisted her in applying for naturalization and after obtaining the Panamanian Passport and Identity Card, she came back to Hong Kong to meet her elder male cousin, Fung.

26. When the Appellant was interviewed by an immigration officer on the 22nd January 1993, she also said that prior to her obtaining her Panamanian Passport in 1990, she had worked in Panama for her uncle for a period of almost 7 years without ever leaving Panama and it was only after the invasion of the American Army resulting in a turmoil that she decided to leave Panama to come to Hong Kong to marry Fung.

27. In the same interview, the Appellant was questioned about some of the documents found in her possession. She was unable to give satisfactory explanation about the nature of such documents.

28. At the conclusion of the Second Appeal, Mr. Paul Fan dismissed the appeal. In his judgment, he stated the following:

"I am of the opinion that the appellant does not enjoy the landing right to enter Hong Kong with an invalid travel document i.e. the Panamanian Passport. The letter from the Panamanian Consulate General is an evidence of authority to state the validity of the travel document. Circumstantial evidences are such that the appellant is keeping away from the truth in a number of cases. But more importantly, the appellant should have demonstrated vigorously to defend the validity of the passport as she claimed it was obtained from a proper channel in Panama.

Therefor, I agree that alone the letter from the Panamanian Consulate General is not a strong evidence, yet the balance is not in the appellant's favour. I therefore dismiss the appeal."

29. The other Adjudicator Mr. Chu came to different decision and allowed the appeal. In his judgment, Mr. Chu made a number of points :

(1) The letter from the Panamanian Consul General in Hong Kong dated 27th of January 1993 would not be admissible in a court of law and the Tribunal had exercised the widest discretion in accepting it.

(2) The Director had not asked the Panamanian Government officials to give evidence before the Tribunal despite indication by the Tribunal.

(3) The letter in question was a very poor piece of evidence because it was dated only one day after the request made by the Director and such timing was against the Director. There was no further evidence from the Panamanian Consul General and there was no satisfactory reason for the absence of further evidence.

(4) There was no finding by a criminal court that the passport was a forged one and in the absence of any conviction, the appellant is presumed to be innocent.

30. Mr. Chu in his judgment also criticized the way in which the Appellant had been treated by the Immigration Department. Such matter, with respect was not relevant to the issue that the Tribunal had to decide at all.

31. The only relevant issue was whether the Director had been able to prove on a balance of probability that the passport in question was a forged one. If the passport was a forged passport, the Appellant would have entered Hong Kong unlawfully and the permission granted to her to remain would also be null and void.

32. Mr. Chu placed much reliance on the absence of a criminal conviction against the Appellant in respect of the passport in question. With respect, the absence of a criminal conviction was hardly of any significance at all. There may be all sort of reasons why no criminal proceeding was instituted in a particular case. In any event, to support a criminal charge, there had to be positive evidence to show not only the document was forged, but the accused was aware of it and it had to be established beyond reasonable doubt.

33. Indeed the legislation clearly envisages situation whereby a person could have landed in Hong Kong unlawfully but not guilty of an offence. Section 2(2) of the Immigration Ordinance provides :

"....for the avoidance of doubt it is hereby declared that no person shall be held not have landed unlawfully -

(a) by reason only of any presumption, conclusive or rebuttable, that he cannot be guilty of an offence or is incapable of committing a crime; or

(b) on the ground only that he is not guilty of an offence under subsection (1) of section 38 in respect of paragraph (a) of that subsection."

34. There are also clear authorities to the effect that the absence of knowledge of the falsity of the travel document is not relevant to whether a person has landed unlawfully. In Khan v. Secretary of State for the Home Department [1977] 3 All E.R. 538 Megaw LJ. states at P. 541

"Counsel for the applicant submits that the principle there laid down does not extend to a case where there is not a dishonest intention on the part of the entrant himself .... In my judgment, the answer given by counsel for the Secretary of State to that , as being his first answer to this part of counsel for the applicants' argument, is correct. If a person obtains from the immigration officer leave to enter by reason of the use by that person of, for example, a materially false document, and by 'materially false' I mean a document the falsity of which is material in leading to the decision that leave should be given, and if that document has been obtained for that person, and the attempted entry on the basis of the false document has been organised, by an agent who himself has been guilty of fraud for the purpose of enabling that person to enter this country illegally, then the position is the same as the position in Re Maqbool Hussain, where the fraudulent passport was presented with the dishonest mind of the entrant himself. It does not make any difference for this purpose that the entrant herself did not know of the breach of the immigration laws which she was in fact committing."

35. Similar point was made in R. v. Immigration Officer, ex parte Chan [1992] 2 All ER 739 where Neill LJ states at P. 745

"The 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 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 provisions of s 3 of the 1971 Act; it is irrelevant whether or not he may also have committed an offence under s. 24(1)(a)."

36. Mr. Justice Kaplan adopted the same approach in the previous determination of this matter in Re Chen Huan-qiong [1994] H.K.L.R. 394. as Mr. Justice P. Chan did in Tsui Siu Wai v. Director of Immigration MP No. 1665 of 1994.

37. In so far as Mr. Chu placed much reliance on the absence of a criminal conviction against the Appellant in connection with the issue of the falsity or otherwise of the passport, he had misdirected himself.

38. Whether the letter from the Panamanian Consul General in Hong Kong was admissible in other court of law was not relevant. There was no dispute that it was admissible before the Tribunal and that was all it mattered.

39. Mr. Chu said the letter from the Panamanian Consul General in Hong Kong was a very poor piece of evidence. He said so because the Panamanian Consul General in Hong Kong only took one day to obtain the information in the letter and there was no further evidence in the past 2 years to confirm its content.

40. In the modern day of technology and efficient means of communication when vast amount of information can be retrieved and dispatched literally with a touch of the tab, it is difficult to understand the approach and reasoning of Mr. Chu.

41. There was clearly some urgency in the matter and the Director had requested for an early reply. The relevant authority in Panama replied to the inquiry by return fax which information was then forwarded to the Director immediately.

42. I cannot understand why or how the fact that it only took the Panamanian Consul General in Hong Kong one day to reply to the request for information by the Director would in any way affect the reliability of such reply.

43. The absence of further confirmatory evidence is in my view again irrelevant. The function of the Tribunal is to resolve the issue based on the evidence presented by the parties and not to expect nor ask for further evidence. In the instant case, it was for the Tribunal to decide, based on the available evidence as to whether the passport was forged or not, bearing in mind the burden was on the Director and the standard was on a balance of probability. The absence of confirmatory evidence certainly would not strengthen the content of the letter. On the other hand, it should not undermine it either.

44. The reasons advanced by Mr. Chu to undermine or disregard the letter from the Panamanian Consul General in Hong Kong could not in the circumstances of the case be logical nor reasonable.

45. The letter was there for the Tribunal to consider. In fact the letter was the only direct evidence pertaining to the issue that the Tribunal had to resolve. The Tribunal was not entitled to disregard it.

46. The question of the weight to be attached to the letter was of course a matter for the Tribunal. But there was no evidence to contradict or undermine the content of the letter at all. The Appellant kept repeating that the passport was issued to her by a marshal in immigration uniform in Panama when she was accompanied by her uncle and a lawyer. Such matter had no bearing on the falsity or otherwise of the passport in question.

47. The fact remained, according to the relevant Panamanian authority, that the passport was issued to a Panamanian named JOSE ANTONIO FONSECA JACKSON and there was no evidence to contradict such assertion.

48. In ignoring or rejecting the content of the letter in question, Mr. Chu had acted unreasonably and had misdirected himself. The application by the Director must be allowed and the decision of the Tribunal quashed.

49. The matter had been dragging on for almost three years and there had been two hearings in the Tribunal. Both parties had been afforded the opportunity to present all relevant evidence to the Tribunal.

50. Mr. Chu had made no reference to the other circumstantial evidence, evidence pertaining to the Panamanian identity card in the name of the Appellant, the period in which the Appellant stayed in China and Panama between 1983 and 1990, the documents found to be in the possession of the Appellant during a search of her premises. Those matters could only strengthen the suggestion that the passport was indeed a forged one.

51. I have given the matter careful and conscientious thought. The Appellant had been in Hong Kong for a long period of over 5 years and she is married to a Hong Kong resident. One cannot help but be sympathetic towards her although it is fair to say that her predicament was somewhat self-induced. I am well aware of the implication of quashing the decision of the Tribunal on the Appellant. But I can only act according to the law.

52. I am firmly of the view that on the matter before the Tribunal, the only reasonable and logical conclusion was that the passport was indeed a forged one. In failing to reach such a decision, Mr. Chu had misdirected himself and had acted unreasonably and irrationally.

53. Such inescapable conclusion must mean that the decision of the Tribunal to allow the appeal of the Appellant had to be quashed. The right to land and the permission to remain in Hong Kong granted to the Appellant were made on a forged document and were therefore null and void. The Director was correct in issuing a removal order against the Appellant.

54. The Appellant's appeal under s. 53A(1) of the Immigration Ordinance is dismissed and the removal order dated 9th of July 1993 be reinstated.

55. In the light of the nature of the application and the background of the case, I make no order as to costs. The order on costs is an order nisi to be made absolute 14 days after the handing down of this judgment.

(W. YEUNG)

Judge of the High Court