HAI HO TAK v. Attorney General

IN THE COURT OF APPEAL

1993, No 64
(Civil)

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J U D G M E N T

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Mortimer, J.A.:

1. These are two appeals by illegal immigrants from refusals to grant them leave to apply for judicial review of decisions to remove them back to China by the Director of Immigration. We heard the cases separately but the main point taken in each is the same and it is convenient to give one judgment.

2. Each is a potentially tragic case. They follow a long line of harrowing immigration cases in which illegal immigrants with close family members living in Hong Kong have been ordered to return to China. Often this is the consequence of a spouse with a right of abode in Hong Kong marrying a partner without such a right. Their children born in Hong Kong have a right of abode, those born elsewhere do not.

3. The importance to Hong Kong's survival of a strict immigration policy has been noted in many cases, both in this Court and below. Without it Hong Kong would be swamped with those who wish to enjoy its economic benefits. Even if close family ties were accepted as a valid reason for allowing illegal immigrants to remain, unacceptably large numbers would be involved.

4. It falls to the Director of immigration to implement the immigration policy. Therefore, when an illegal immigrant from China is arrested, he is normally returned. The Director exercises his powers of removal under s.19 of the immigration Ordinance Cap.115 (the Ordinance). The person concerned has a right of appeal to the immigration Tribunal under s.53(a) of the Ordinance. Absent a successful appeal the Director's recognised policy is to enforce the removal order unless on "strong humanitarian grounds" he exercises his discretion to allow the person to remain in Hong Kong under s.13 of the Ordinance.

5. It has been recognised by this Court in many previous cases that the implementation of the policy is for the Director and the decision whether or not to exercise his discretion under s.13 is for him and him alone. Provided that he takes this decision fairly and according to law the courts will not interfere by giving leave for it to be judicially reviewed.

6. Although it forms no part of my reasoning, it should not be overlooked that the present immigration policy has been enforced for many years and its consequences are well-known. Also, if the priority is for a family to remain united, this is usually possible but it involves the family living in China. This does not mitigate the harsh practical effects of the implementation of the policy in some cases.

The Appeal of Hai Ho Tak No. 64 of 1993 (Hai's case)

7. On 13th April 1993 Rhind J refused to grant the appellant leave to apply for judicial review of a decision that the appellant is an illegal immigrant and an order for his removal to China. The removal order is dated 13th September 1991. The relief sought is for certiorari to quash the decision and order, and a declaration that the Director exercised his discretion unfairly and in breach of the rules of natural justice and the Bill of Rights Ordinance (the Bill).

The facts

8. The father and mother of the appellant say that they have lived in Hong Kong since 1979 and 1988 respectively. They have four children, the youngest of whom is the appellant. He was born on 15th December 1987. The mother claims that he was born in Hong Kong - she having entered illegally on 20th September 1987. Her account is that she then returned to China with the appellant and left him there in the care of family and friends. Later (13th May 1988) she returned to Hong Kong, having been granted a one- way exit visa from China for herself and her eldest son. There is no dispute that father, mother and the three older children, all have right of abode here. In April 1991 father and mother wanted the appellant to go to school but he had not been registered at birth. The Director of immigration was notified and after enquiry he decided the appellant was here illegally and on 13th September 1991 made a removal order. The appeal to the immigration Tribunal was dismissed. The issue was whether the appellant was born in Hong Kong. Having heard the evidence, the Tribunal was not satisfied on balance that he was. Part of the background is that the parents gave (admittedly) false evidence about photographs purporting to be of the mother when pregnant with the appellant.

The Application

9. The application for leave came before Rhind J. Mr Watson who appeared below as well as before this Court did not seek to impugn the decision of the Immigration Tribunal but sought to argue that the applicant's removal was an infringement of his rights under Articles 1, 14(1), 15(4), 20(1) and 22 of the Bill. Rhind J found that s.11 of the Bill precluded the applicant from asserting such rights. This finding is challenged on appeal.

Appeal No. 145 of 1993 (Madam Cheng's case)

10. The same point is taken in Madam Cheng's appeal against Jones J's decision refusing leave to apply for judicial review of a decision of the Director of Immigration to remove her back to China is an illegal immigrant.

The Facts

11. Madam Cheng married her husband - a Hong Kong resident - in 1986. They have five children, all of whom were born in Hong Kong between 1986 and 1992. The children are all Hong Kong residents with a right of abode. Madam Cheng came illegally to Hong Kong in 1985/1986 and was removed back to China. She returned illegally in 1987 and remained here until discovered. Subsequently a second removal order was made against her on 9th May 1991. She appealed to the immigration Tribunal who dismissed her case on 14th May 1992. On 3rd December 1992 the Director of immigration refused to exercise his discretion under s.13 of the Ordinance to allow her to stay. In Madam Cheng's case her husband and children also applied for judicial review of the decision. They seek to contend that their rights under the Bill have also been infringed by the removal order.

12. The matter came before Jones J on the following preliminary issue:

"... whether s.11 of the BORO precludes only persons who do not have the right to enter and remain in Hong Kong from challenging the immigration Ordinance under the Bill of Rights, or whether it goes further to preclude their family members in Hong Kong who have the right to enter and remain in Hong Kong from such challenge."

The judge answered in the negative. His decision is challenged by the appellants who appear in person.

Locus Standi

13. In Hai's case only Hai himself - the person with no right to enter and remain in Hong Kong - made the application. However Mr Marshall for the Crown has been content to treat the case as if his parents and siblings had joined in the application. In the course of argument I raised the question whether family members with a right of abode in Hong Kong had any locus standi to challenge the decisions made in respect of others. In other words whether they have "sufficient interest" in the proceedings. The point was not canvassed or argued below and Mr Marshall was content to concede - for the purposes of the present proceedings only- that the family members (not the subject of the challenged decisions) had sufficient locus to appear. For my part, I am content to accept the concession without deciding the point which is almost certainly subsumed in the decision upon the issue in the appeal.

The Appellant's Submissions

14. We have heard limited argument. Mr Watson, for the appellant Hai and his family, relies upon the submissions made to Jones J in Madam Cheng's case. Mr Martin Lee, QC appeared in the court below for Madam Cheng. The judge set out the detailed submissions in his judgment which we have had the advantage of considering. Mr Lee relied upon the history of the UK reservation to the international Covenant of Civil and Political Rights as it affected Hong Kong together with cases decided in international Courts; certain decisions from other jurisdictions; the Siracusa Principles; and those Hong Kong cases which deal with the interpretation of the Bill, for his submission that s.11 should be interpreted strictly and is not appropriate to prevent family members from relying upon its provisions in the circumstances of these cases.

The issue for this Court

15. The issue for our decision is in circumstances when the Director of immigration has decided not to exercise his discretion under s.13 of the Ordinance to allow an illegal immigrant to stay and to remove him under s.19 of the Ordinance, does s.11 of the Bill, on its true construction, prevent close family members from relying upon their rights in the Bill to challenge the decision by way of judicial review?

16. Section 11 of the Bill

Section 11 reads:

"Immigration Legislation

As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation."

17. In spite of submissions to the contrary here and below in Hai's case, it is clear beyond argument that this section prevents any person in Hai's or Madam Cheng's position - as persons without right to enter or remain in Hong Kong - from relying upon their rights under the Bill to challenge lawful exercise of powers of removal under the immigration legislation.

18. The effect of the section upon the rights of close family members of an illegal immigrant in these circumstances cannot be stated so simply. For the most part the Bill is the enactment of the international covenant into domestic legislation ipsissima verba. Words which were intended as the principles which domestic legislation should precisely implement have themselves become the domestic legislation. The consequence is that many indeterminate and undefined rights are given, which absent future defining legislation, will come before the Hong Kong courts for construction for many decades.

19. Examples of the rights sought to be relied upon are in articles 14 and 19 which read:

"Article 14

(1) No one shall be subjected to arbitrary or unlawful interference with his ... family ...

(2) Everyone has the right to the protection of the law against such interference ...

Article 19

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."

However, if these general rights have any meaning at all it would be reasonable to assume that the removal of a 6½ years old child from his mother, father and three elder siblings (Hai's case) and the removal of the mother from her husband and five children (Madam Cheng's case) involve a seriously arguable infringement of these rights of their family members. Nevertheless, if reliance upon these rights to challenge the decision to remove them is permissible, this would be a strange if not absurd result of the legislation. The person most affected by the removal order would be unable to challenge the decision for interference with his rights under the Bill whereas those closely but less affected would be able to do so and in appropriate circumstances have the decision struck down.

20. The principle that the court will interpret statutory provisions so as to avoid absurdity arises only if the provision is ambiguous. In my judgment, however, s.11 of the Bill is not obscure or ambiguous, the meaning is clear. In reaching this decision, I have had the advantage of seeing the relevant part of Godfrey JA's judgment on this point in draft. I am indebted for his reasoning. I agree with his construction.

21. Section 11 limits the rights under the Bill which may be invoked if there is an exercise by the Director of immigration of his powers under the Ordinance in respect of a person without a right to enter or remain. This circumstance makes it necessary to interpret the section strictly in accordance with its plain meaning and effect. With respect to the submissions advanced below the interpretation of this section does not lend Itself to elaborate argument. Section 11 is an essential limitation on the general provisions of the international covenant brought about by the reality of Hong Kong's geographical position and economic success. It follows the United Kingdom's reservation to the international covenant's application to Hong Kong.

22. In my judgment central to the meaning of the section are the words:

"this Ordinance does not affect any immigration legislation ... or the application of any such legislation"

However; the section applies to only part of the immigration legislation and its application; that is to legislation governing entry, stay or deportation of persons with no right to enter or remain. But thus limited, the provision is of general effect, so that all citizens, whether illegal immigrants or others such as close family members, are prevented from invoking their rights in the Bill in the circumstances of these cases. There is no basis upon which the close family members can seek leave to apply for judicial review of the relevant decisions.

23. For these reasons, there is no merit in either of these appeals. I would dismiss them.

Nazareth, J.A.:

I agree, and would only add the following.

24. It is trite law that mere accession to a treaty or international covenant does not give effect to its provisions in terms of domestic law. The international Covenant on Civil and Political Rights ("the Covenant") is for the time being entrenched in the law of Hong Kong by the Hong Kong Letters Patent 1991 (No.2). It was not suggested to us that such entrenchment affected the continuing operation or construction of s.11 of the Hong Kong Bill of Rights Ordinance ("the Ordinance"), understandably, given the UK reservation on accession to the Covenant made in accordance with its provisions in respect of Hong Kong. It is in any case clear, not least from the Hong Kong Letters Patent 1991 (No.2), that it is by the Ordinance that the Covenant is incorporated into the law of Hong Kong. The Ordinance does so with the express reservation or limitation, call it what one will for present purposes, spelt out in s.11:

"Immigration Legislation

As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation."

25. The central issue in these appeals is thus the true and proper meaning of s.11. It does not seem to me, nor was it suggested, that for the purposes of these appeals any of the other provisions of the Ordinance come into play for the construction of s.11. It falls to be construed by the well-known rules that apply to the interpretation of statues. They do not have to be adumbrated here. Suffice it to say that unless s.11 is ambiguous or obscure or leads to absurdity, it is to be given its ordinary or literal meaning. In the absence of ambiguity or obscurity, it is neither necessary nor permissible to refer to matters extraneous to the Ordinance, like the terms of the Covenant or the Siracusa Principles as has been attempted in the submissions and material presented to us.

26. It seems to me also, that the meaning of s.11 is quite clear: the Bill of Rights (as part of the Ordinance) does not affect immigration legislation governing the entry into, stay in and departure from Hong Kong of a person who does not have the right to enter and remain in Hong Kong; nor, more to the point, does the Bill affect the application of such legislation. That means not that members of the family of such a person (whether or not they have the right to enter and remain) do not have "family" rights under the Bill, but that their family rights do not affect such legislation or its application in relation to that person; likewise that even if such family members have locus stand in proceedings such as this, their family rights would not avail in respect of the operation of such immigration legislation as regards that person.

27. If, to the contrary, s.11 were so construed that the family rights of family members weighed against and even constrained the effect of that immigration legislation, then plainly the Ordinance would affect such immigration legislation. That construction must therefore be rejected.

28. I would add that had the meaning of s.11 not been clear, the following considerations would yet have driven me to the same construction. Historically Hong Kong has been and continues to be subjected to unparalleled immigration pressures. If not rigorously controlled they pose a grave threat to the prosperity and stability of Hong Kong. And specifically in the context of close relatives or family members, the numbers of persons without rights to enter and remain, who have family members in Hong Kong with such rights are very substantial indeed; an estimate of 400,000 in the adjoining provinces of China was mentioned to us. Manifestly the meaning contended for by the appellants would severely undermine the object of the legislation, and in enacting s.11 the legislature could not have intended it to have such a meaning.

29. In agreeing that the appeals should be dismissed, I would acknowledge the credit that is due to Mr Watson and those instructing him, who have acted entirely pro bono publico, with the resultant lack of resources particularly required in appeals such as these.

Godfrey, J.A.:

I agree that these appeals must be dismissed.

30. The purpose of the Hong Kong Bill of Rights Ordinance, Cap.383 ("the Ordinance") is to provide for the incorporation, as part of the law of Hong Kong, of provisions of the international Covenant on Civil and Political Rights as applied to Hong Kong : see Section 2(3). The Ordinance is binding on the Hong Kong Government, and on the Director of immigration who acts on its behalf : see Section 7.

31. Now the family is the natural and fundamental unit of society; it is entitled to the protection of the Hong Kong Government and those who act on its behalf : see Article 16 of the Hong Kong Bill of Rights (set out in Part II of the Ordinance), and it must not be subjected to arbitrary or unlawful interference : see Article 14.

32. However, as regards persons not having the right to enter and remain in Hong Kong, the Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation : see Section 11 (contained in Part lll of the Ordinance, which is expressed to set out exceptions and savings).

33. In my opinion, the effect of Section 11, on its true construction, is this.

1. The Ordinance may not be invoked so as to affect, as regards any person not having the right to enter and remain in Hong Kong, any immigration legislation governing his entry into, stay in or departure from Hong Kong, or the application of any such legislation.

2. This is so no matter who it is that invokes the Ordinance or on what ground he invokes it.

3. In particular (of course) the Ordinance may not be invoked by the person not having the right to enter and remain in Hong Kong. That being so, it would be the height of absurdity if it could be invoked by someone else, e.g. another member of his family. If the person not having the right to enter and remain in Hong Kong could not himself invoke the provisions of the Ordinance relating to his rights as a member of the family, it cannot make sense to allow other members of the family the right to invoke those provisions in relation to their rights as members of the same family. And Section 11 should not be construed so as to attribute a non-sensical intention to the legislature.

34. If this reasoning is correct (as I believe it is) it is sufficient to dispose of the appeals, the background to which is fully set out in the judgment of Mortimer J.A., and to which I need not further refer.

35. But I would add that, even absent Section 11, I would not have been prepared to hold that the Director of immigration was precluded by the Ordinance from making and implementing an otherwise lawful decision merely on the ground that the result of the decision might be to separate members of a family. Like all other human rights, the rights of the family under the Ordinance are not absolute. We must be zealous in upholding individual rights under our Bill of Rights. But at the same time we must ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The Bill of Rights will be debased and devalued if it is repeatedly invoked in cases to which its abstract concepts have really no application. The court must hold the balance between the individual and society as a whole, and maintain a sense of proportion in doing so. It should not impose unrealistic standards on the Hong Kong Government's attempts to resolve the difficult and intransigent problems which Hong Kong faces. (For an authoritative statement on these lines, see Attorney General of Hong Kong v. Lee Kwong-Kut [1993] AC 951, especially at p.975.)

36. Of course, as is pointed out in that case (loc. cit.) questions of policy are primarily the responsibility of the legislature. But, that said, I cannot conclude this judgment without expressing my concern as to the consequences of the Hong Kong Government's immigration policy in cases like the present. However extreme the facts, there is no appeal, either to the immigration Tribunal, or to the Court, against a decision of the Director of immigration not to exercise the discretion, conferred on him by Section 13 of the immigration Ordinance, Cap.115, to allow an illegal immigrant to remain here. I would venture to renew the plea I made in Chan Heung Mui v. Director of Immigration, CA 168 of 1992, 24th March 1993, unreported, for amendment of the Immigration Ordinance so as to provide for, at least, a limited right of appeal in cases where it might appear that because of exceptional circumstances of a humanitarian nature, it would be unduly harsh or unjust to deport the appellant. So far, this plea seems to have fallen on deaf ears, which is disappointing. But it does have to be accepted that the matter is one of policy. It is the province of the legislature not the judiciary. I do no more than suggest, once again, that the problem may reasonably be thought worthy of further consideration by the legislature.