DIECTOR OF IMMIGRATION v. SAE-ANG PAISARN

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is an application for an order of certiorari by way judicial review on the grounds of alleged errors of law on the face of the record.

2. Pursuant to leave granted, counsel for the Director of Immigration moves this Court to quash a decision of the immigration Tribunal given on the 10th December 1987. The Court is also asked to remit the matter to the Immigration Tribunal with a direction to reconsider it and to reach a decision in accordance with its judgment, if given in favour of the Director.

3. The respondent's natural father is Mr Hui Hon Cheong. The respondent has various Thai names. He has adopted his mother's surname "Hung". I shall call the respondent "Mr Hung".

4. Mr Hung was arrested as an overstayer in September 1987. On the following 3rd November, the Director of Immigration made a removal order against him. Pending his removal to Thailand, Mr Hung appealed to the Tribunal.

5. It is necessary to set the scene in which this complaint arose. Before the 2nd October 1978, at the age of 7 and 9 respectively Mr Hung came to Hong Kong twice on a Thai passport in the name of "Sae-Ang Vichai". On both occasion, he was admitted as a visitor, but was repatriated to Thailand when he overstayed. On the 2nd October 1978, he returned to in Hong Kong under the age of 10 on another Thai passport in the name "Sae-Ang Paisarn". He was given a visitor permit for a month. After the expiry of that permit, Mr Hung was granted a 6 months student permit on the 28th November 1978. In between 1979 to 1984, his student permit was extended twice a year. In 1985, it was extended once. In 1986, it was also extended once. That was his last extension and it was up to the 13th August 1986. Mr Hung made no further application for extension. He was arrested over a year later on the 16th September 1987.

6. Each extension of his permit was invariably by an interval in which his stay in Hong Kong was without official permission. From the records of his applications still avaiable, Mr Hung is shown to have made an application out of time on 3 occasions i.e. on the 14th September 1983, 17th April 1984 and 19th August 1985. In another words, there is no evidence that Mr Hung applied out of time except on these three occasions. Whether Mr Hung applied in time or out of time, none of his applications was granted during the currency of his limit of stay then sought to be extended. Therefore, on each occasion there was an overstay period before his application was finally granted.

7. This motion resolves itself into two questions: first, who would require permission to stay in Hong Kong and secondly, how a person's current permitted stay may be extended.

8. A "Hong Kong permanent resident" enjoys the right of abode in this territory. That right of abode encompasses the right, inter alia, to land in Hong Kong, not to have imposed upon him any condition of stay and not to have a removal order made against him. See Section 2A(1)(a),(b) and (d) of the Immigration Ordinance. A "Hong Kong permanent resident" is defined in Section 2 of the Ordinance, which refers to its First Schedule. By paragraph 1, that First Schedule includes, for a "Hong Kong permanent resident", a person of Chinese race, who has at any time been ordinarily resident in Hong Kong for a continuous period of not less than 7 years.

9. Mr Hung had no right of abode in Hong Kong on the 2nd October l978 when he arrived. A person who has no right of abode in Hong Kong is not permitted to land except with the permission of the Immigration Department under Section 11(1) of the Ordinance. When Mr Hung was given the permission to land, it was made subject to a condition of stay limiting the period during which he might remain in Hong Kong.  See Section 11(2) and Section 2. That is known as "a limit of stay".

10. The extension of a limit of stay is regulated by Section 11(5A)(c) which provides that an immigration officer may "vary any limit of stay in force ...... by enlarging the period ......" .   (Emphasis mine).  Section 11(9) enables the Director of Immigration to "exempt any person or any class or description of persons from compliance with all or any of the prescribed conditions of stay."

11. It is the case of the Director of Immigration that after the last extension granted up to the 13th August 1986, Mr Hung has since the 14th August been an overstayer, presumably under Section 41 in breach of a condition of stay. That led to his arrest and his removal order.

12. Mr Hung appealed to the Immigration Tribunal which recorded three grounds of appeal, namely (a) he enjoys the right of abode in Hong Kong under Section 2A of the immigration Ordinance, (b) he has the right to land In Hong Kong, under Section 8(1) of the same Ordinance and (c) apart from the effect of the removal order, he has the permission of the Director of immigration to remain in Hong Kong.

13. Section 8(1) of the Immigration Ordinance deals with a resident British citizen or a resident United Kingdom belonger. Evidently, Section 8(1) can have no application to Mr Hung. Disregarding the effect of the removal order made against him, Mr Hung has no longer any permission of the Director of Immigration to remain in Hong Kong. The third ground of appeal as recorded by the Immigration Tribunal has clearly no substance. The Immigration Tribunal held In favour of Mr Hung on all three grounds.  I need hardly say that the complaints of the Director of Immigration are wholly justified on the two grounds I have alluded to. These are plain errors on the face of the record. The bone of contention is whether the remaining ground upheld by the Immigration Tribunal on the facts they found is likewise such an error.

14. The Immigration Tribunal found the following facts:

15. Except for the last concluding remark in finding (1) viz. "Therefore, his performance ...... should not be considered as contravention to limit of stay", these findings either as primary facts or inferences drawn cannot be said to be irrational or perverse or such that no tribunal “acting judicially and properly instructed as to the relevant law could have come to". See Council of Civil Service Unions v Minister of 'Civil Service ⁽¹⁾; Edwards (Inspector of Taxes) v Bairstow ⁽²⁾.

16. There is evidence that Mr Hung applied in time for extension of his limit of stay except for three occasions. The Immigration Tribunal overlooked the fact that after 1985, he sought no extension up to the time of his arrest. There is also evidence that all his applications were purportedly granted. The proper inference from his conduct in the past would be that he intended or wished to stay in Hong Kong if one were to treat the absence of any application since the 14th August 1986 not as "performance" but an omission. There seems to be no insuperable semantic difficulty to agree with the Tribunal's refutation of Mr Hung's "performance" in seeking extensions as being "contravention to limit of stay" because contravention was brought about by his overstay. Therefore, not even the Tribunal’s last concluding remark is, though immaterial, strictly erroneous.

17. The second finding of the Immigration Tribunal is not open to challege. The Tribunal repeated fairly accurately a statement of the law that if Mr Hung had obtained timely extension of his student visa for 7 years, he would have been granted permanent residence" and "that the Ordinance does not preclude the period of stay as a student from being counted as ordinarily resident". See the celebrated case on "settled purpose" in their Lordships' House in R.v. Barnet L.B.C., Ex p. Shah.⁽³⁾.

18. The third finding is also factually correct. Mr Hung is of Chinese race and he has been here in Hong Kong continuously since 1978. No one has suggested that Mr Hung has ever been physically absent from Hong Kong for any period of time since 1978. There is no evidence of it.

19. The central issue is whether on account of his race and by his continued presence in Hong Kong since 1978 Mr Hung has, in the light of his regular applications in or out of time up to the last, acquired the status of a "Hong Kong permanent resident" so as to be able to enjoy the right of abode in Hong Kong with the attendant privileges under Section 2A of the Immigration Ordinance.

20. Section 11(5A)(c) of the Ordinance enables "a limit to stay" to be extended while it is still being in force. The intention ascribed to the Legislature by the clear language of paragraph (c) can only he that "a limit of stay" may not be varied except before its termination. There is no statutory power to extend a limit of stay" after it has ceased to exist.

21. A comparable but more perplexing provision found in Section 14(l) of the Immigration Act 1971 has been similarly construed : the words "a person who has a limited leave" there have been held to exclude a person who has had but no longer has a limited leave; no extension may, therefore, be granted unless the leave is still alive. The English Court of Appeal so affirmed a decision of the Divisional Court in R v Immigration Appeal Tribunal, Ex parte Subramanian⁽⁴⁾, and the interpretation was upheld by the House of Lords in Suthendran v Immigration Tribunal⁽⁵⁾ by a majority of 3 to 2. In the dissenting speech of Lord Kilbrandon, a subtle distinction was drawn between the leave which was said to have been "given once and for all", thus still subsisting and the period prescribed in the leave, which had expired. Lord Wilberforce lent his support to such an artificiality for preserving the running administrative practice and avoiding the potential injustice which Parliament would not have knowingly countenanced.

22. Section 14 (1) of the English Immigration Act 1971 refers to "a person who has a limited leave" in the present tense and to a variation of that leave. The sub-section envisagesa leave in force, which has not terminated. In Section 11 (5A)(c) of our Ordinance is found a power of variation, exercisable with reference to "a limit of stay in force". (Emphasis added). Not only is Section 11(5A)(c) unobscure, its language is emphatic on the variation of a limit of stay in force.

23. The decision in Norman v. Norman⁽⁶⁾, cited by counsel for the respondent, focused on a maintenance order. The Divisional Court overruled a magisterial decision that there was no jurisdiction to continue with payment for a child's education after a maintenance order had expired. The difficulty felt by the stipendiary was that the sub-section referred to continuation of what was provided in an existing order. A strict grammatical reading of it would lead to an unworkable and absurd result, and the Divisional Court preferred a liberal interpretation. In this case, paragraph (c) could not be more unambiguous and hence calls for no curial intervention. It is the safest guide to day as it was offered by Denning L.J., as tie then was, in Seaford Court Estates Limited v. Asher⁽⁷⁾ that "a judge must not alter the material ...., but he can and should iron out the creases"

24. Before the Suthendran case, the English Home Office had read Section 14(l) of the 1971 Act as if it allowed a leave to be lawfully varied even after it had expired, and the Home Secretary had regularly granted such out of time extension. It is, therefore, no surprise that in practice our immigration Department has hithereto extended "a limit of stay" after its expiration on an application made either in or out of time. The Immigration Department could not have knowingly lulled the respondent into any false sense of security. They were themselves no wiser and no misrepresentation had been made.

25. I conclude that there is no statutory power vested in the Immigration Officer to vary a limit of stay unless it is still in force.

26. It was suggested in the Suthendran case that legitimate grievances caused by administrative delay might be averted by an instant grant of an interim extension to an applicant within time to cover the processing time.  Section 11(9) of the Immigration Ordinance also empowers the Director the Immigration to exempt compliance with, inter alia, a limit of stay. It would be wrong to proceed on the presumption that the Immigration Department would act capriciously, harshly or oppressively. It would not be proper for this Court on an application for judicial review to question the removal order. Indeed, it would be presumptuous of this Court, not having been assisted on the administrative realities and other relevant considerations of high policy contents, to suggest what action to take to avoid or alleviate grievances which may well be more apparent than real.

27. What then is the effect of the interval or preceding each of the many extensions? The law is reasonably clear. Under Section 41 of the Immigration Ordinance, any person who contravenes a condition of stay in force (not, be it observed, a limit of stay in force) shall be guilty of an offence. In addition, by Section 2(4)(a)(ii) of the Ordinance, no person shall be treated as ordinarily resident in Hong Kong when he is in contravention of a limit of stay (not, be it observed, a limit of stay in force). In In re Abdul Manan⁽⁸⁾, the English Court of Appeal contrued the term "ordinarily resident" as meaning, in the context of immigration legislation, lawfully ordinarily resident. The English decision was followed in Hong Kong in A.G. v Cheung Kam Ping⁽⁹⁾. The same underlying reason was embraced for the British Nationality Act 1948 in R. v. Home Secretary, Ex parte Margueritte⁽¹⁰⁾. In Chelliah v. Immigration Appeal Tribunal⁽¹¹⁾, it was held under the Immigration Act 1971 that lack of knowledge of being an overstayer would not make him lawfully ordinarily resident in the United Kingdom. Thus, under the general law in order to qualify to be ordinarily resident in Hong Kong, one must not be in breach of any condition of stay, including a limit of stay. "A limit of stay means a condition of stay limiting the period during which a person may remain in Hong Kong."  Under the Ordinance, Section 2(4)(a)(ii) specifically precludes a person from being treated as ordinarily resident in Hong Kong when he is, in contravention of a limit of stay. Therefore, for the overstay period after the expiration of each limit of stay, Mr Hung was neither lawfully ordinarily resident nor to be treated as ordinarily resident in Hong Kong. In conclusion, none of those overstay periods was cumulative in the computation of the 7 years under paragraph 1 of the First Schedule to the Ordinance.

28. It is true that throughout these years the Immigration Department had not managed to grant an extension to Mr Hung before the expiration of his current limit of stay. Such delay, whether by accident or design, may or may not be satisfactorily explained, but the result is that Mr Hung's residential status was constantly interrupted. However, no real grievance has been caused as Mr Hung himself was instrumental in not making an application in time on the 14th September 1983, the 17th April 1984 and 19th August 1985. By reason of his own late applications between October 1978 to August 1985, Mr Hung had effectively deprived himself of any opportunity of accumulating a continuous residence for 7 years. He has, since the expiration of his last limit of stay on the 13th August 1986, made no effort in applying for extension.

29. The crucial statutory prerequisite under consideration is "ordinarily resident in Hong Kong for a continuous period of not less than 7 years".  That involves as well status as the time for which that status has been maintained. It is well settled that a continuous period requirement in immigration law as it is in education legislation would not be suspended by temporary or occasional absences. See R v Barnet L.B.C., Ex parte Shah⁽³⁾ and Director of Immigration v. Ng Shun Loi⁽¹²⁾. The natural and ordinary meaning of "ordinarily resident" as given by Lord Danning M.R. in the Court. of Appeal in Shah⁽¹³⁾ has been well received : "The persons must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration." That measures the duration, but we must not lose sight of the fact that our Immigration Ordinance also demands a continuity in the residential status which may be put an end to by any period of unlawful stay both under the general law and Section 2(4)(a)(ii).  In each overstay period since 1978, Mr Hung was not and was not to be treated as ordinarily resident in Hong Kong for the purposes of our Immigration Ordinance. In my view, he has not qualified as a Hong Kong permanent resident under paragraph 1 of the First Schedule to the Ordinance and does not consequently enjoy the right of abode in Hong Bong under Section 2A so as to enable him to remain in Hong Kong without any imposed condition of stay and immune from any removal order.

30. It cannot be denied that Mr Hung has, since 1978, been physically here continuously for over 7 years. Evidently he was in Hong Kong for a settled purpose, attending school with intermittent working spells. His uninterrupted physical presence in Hong Kong is not an issue. He fails on his claimed status of being ordinarily resident in Hong Kong for that duration, and all the determinations of the Immigration Tribunal stemming therefore are decisions no reasonable tribunal, properly instructed as to law, could have made on the known facts.

31. Counsel for the respondent sought to make much capital of the absence of a transcript of hearing before the Immigration Tribunal. The issues before this Court are, in the main, legal and they can be readily resolved on the available records of Mr Hung's limits of stay, applied for and granted.

32. Mr Hung  maintains that his intention has throughout been to associate himself with and remain in Hong Kong.  But an intention to retain a man's existing residence or change to a new residence has little or no bearing even on the concept of "residence", the real test for which is "the usual order of (a man's) way of life and the place where in fact he has lived during the" period preceding his claim. See The Inland Revenue Commissioner v. Lysaght⁽¹⁴⁾ and Director of Immigration v Ng Shun Loi ⁽¹²⁾. Moreover, in the instant motion, the key question is Mr Hung's claimed status, not his physical presence in this territory.

33. Mr Hung's removal from this territory will undoubtedly cause disruption, hardship and trauma whether he is a victim of circumstances or the author of his own misfortune or both. Compassion and other relevant considerations are matters for examination elsewhere.

34. At the commencement of this application, two procedural shortfalls were debated : first, the lodging of a copy of the decision of the Immigration Tribunal under Order 53, rule 9(2) RSC and secondly, the giving of grounds in the Notice of Motion.

35. In February this year, long before the hearing, the decision intituled "Notice of Determination of Appeal by the Immigration Tribunal" was filed as an Exhibit to these proceedings. Before I began to entertain the instant application, the question of lodging a copy of that decision with the Registrar, Supreme Court under 0.53, rule 9(2) was canvassed. Ex abundanti cautela, the same document was filed again and verified before this Court was moved. The verifying affirmation cannot be said to be inadequate although not precisely in line with the recommended format at p. 1441 of Chitty and Jacob's Queen's Bench Forms, 21st Edition, Form 1951. As the result of an enquiry made of the Registrar, Supreme Court, the following information was received :

"Nothing has been lodged with me personally, but I think we have generally accepted that, as the Registry is mine, anything lodged there is lodged with me."

36. Should the position be otherwise, there seems to exist a satisfactory built in explanation for any failure so to lodge the copy determination.

37. In Form No. 86 in the Rules of Supreme Court at p. A396 Cap. 4, it is suggested that a notice of motion should include the following words : "on the grounds set out in the copy statement served herewith used on the application for leave to apply for such order." These words are omitted from the Notice of Motion before me. However, 0.53, rule 6(1) merely requires the statement in support of an application for leave to be served with the notice of motion before grounds could be relied upon or relief sought at the hearing without leave. The statement has been served with the Notice of Motion although it is eminently desirable to make the same reference to it as suggested in Form No. 86. I hold that the rules have not been breached.

38. It is claimed that the entire decision made on the facts found by the Immigration Tribunal is one that no reasonable tribunal properly instructed as to law could have arrived at. I am satisfied that it is so. The same should therefore be brought into this court and quashed.

39. I order that this motion be allowed and the decision of the Immigration Tribunal be removed forthwith into this court and thereafter be quashed. I further order that this matter be remitted to the Immigration Tribunal with the direction of this court that the same be reconsidered and a decision reached in accordance with this judgment. Subject to what Counsel have to say, I would make no order as to costs.

(1) [1985] 1 AC 374 at p. 410 Letters D- E Lord

(2) [1956] AC l4 at p. 36 per Lord Radcilffe

(3) [1983] 2 A.C. 309

(4) [1977] QB 190

(5) [1977] AC 359

(6) [1950) 1 A.E.R. 1082

(7) [1949] 2 K.B. 481, 499

(8) [1971] 1 W.L.R. 859

(9) [1980] HKLR 602

(10) [1983] 1 Q.B. 180

(11) The Times Law Report, October 15, 1985

(12) Civil Appeal No. 2 of 1987, the unreported judgments of which were delivered on the 26th March 1987

(13) [1982] Q.B. 688 at. p. 720, Letter D

(14) [1928] A.C. 243, 345G per Viscount Sumner.