UNAJ LIMBU v. THE COMMISSIONER FOR REGISTRATION AND ANOTHER

HCAL 136/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 136 OF 1999

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REASONS FOR JUDGMENT

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1. The Applicant claims to be the son of a Gurkha soldier who served with the British Army in Hong Kong in the late 1960's. His claimed father is recorded, on a letter from the Records Office of the British Gurkhas Pokhara in Nepal, as Makarjang Limbu. That letter records the claimant's given name as Yograj, with a date of birth, 12 September 1967 at Tam Mei, Hong Kong. There is a Hong Kong Certificate of Birth confirming the birth of a son on that date to Makarjang Limbu and his wife Hangsmati. The registered name of the child is recorded as Unaj Limbu.

2. His application for registration as a Hong Kong resident with a right of abode and thereby entitled to a permanent identity card by virtue of his birth in Hong Kong was rejected by the Commissioner. He appealed to the Registration of Persons Tribunal but his appeal was dismissed. He now seeks judicial review of that latter decision.

3. Apart from the above I take the facts from the Summary of the Facts of the case from the appeal against the refusal of his application for verification of his eligibility for a permanent Hong Kong identity card.

4. He arrived in Hong Kong as a visitor on 3 March 1998 and made his first application on 4 March, the next day. He withdrew it on 14 April and on the same date made a second application. This he withdrew on 2 May 1998 and he left Hong Kong on 5 May. On 2 July 1998 he made a third application. Nothing turns on the history of these applications.

5. In support of his application he produced a number of documents including his Nepalese passport, a Nepalese Citizenship Certificate, his School Transfer Certificate and a certificate to the effect that he has no criminal record. They all record his name as Unaj Limbu and date of birth as 12 September 1967. The School Transfer Certificate records his having been at Shree Bhagawati Vocational Secondary School from age 7 years until aged almost 12 years. In passing it is clear that secondary level education in Nepal does not correspond to western or Hong Kong secondary level.

6. It says he passed the annual examination of the 6th class. According to the summary, the point is made that the interview with the Applicant in August 1998 recorded him as saying that he only attended the 6th class. The Immigration Officer's notes recorded that he said he attended that school until the age of 19, (2039 B.S.) and yet year 2039 B.S. is age 14 or 15. On being shown the Transfer Certificate the officer said the Applicant commented that it was a mistake. There seems to be some confusion on this point but the notes are very limited in reliability. There is no tape recording of the interview or verbatim record or signed statement. I comment further on the value of this record and the part it played in the proceedings and decision later.

7. Another document from the Gurkha Records Office certifies that the Yograj Limbu in the service records is the one and the same Unaj Limbu. All these documents appear to be of 1998 origin and the point was made that no document prior to 1998 deals with his identity. That is factually correct though I do not see that that is a cause for suspicion given all the circumstances. A further point is made that he has produced no document to show that he ever used the name Yograj. Yet he does not claim that he ever used the name Yograj. He gave evidence to the effect that the School Certificate is of 1982/83 origin - it is its translation which was made in 1998.

8. A comparison of the spelling of the "father's" given name in the pensioner card, two certifications and two Army letters shows variations - Makarjang, Makargang and Makar Jung. These are so trivial, and, given that Nepali names have been anglicized, are at the very least inconsequential - and probably to be expected.

9. The "father's" Certificate of Service shows the serviceman as being born in 1940 (an entry made when he left the Army in 1969) whilst the Nepalese Citizenship shows the date of birth as 17 August 1936. This was corrected to July 1940 to accord with that recorded in his service book. The reason for this is not known. I can well understand a Gurkha recruit claiming to be younger than he actually is in order to be accepted - historically a well-known practice in the services in certain circumstances. But this is not a matter for the Applicant to explain.

10. The next area of dispute emerging from documents relates to his "mother". On the Hong Kong Birth Certificate her given name is spelt Hangsmati. The letter from the Records Office of the British Gurkhas at Pokhara, Nepal spells it as Hangsamati. In her Death Certificate it is also spelt Hangsmati stating her death to have occurred on 28 August 1981. The Army letter records her death as being in 1981. This is another trivial discrepancy easily accounted for by variations in anglicisation.

11. Another point taken on the Death Certificate is that it records the mother as a resident of "Ward No. 8 Singiya". The Migration Certificate (with a registration date of 11 April 1997) says Mr Makar Jang Limbu a resident of Ward No. 8 Singiya migrated from Change 9 Taplejung District with his family on or with effect from 28 April 1991 and on the reverse family details include "Mrs Hangsmati Limbu" who of course had been dead from nearly ten years according to the certificate. Who supplied this information on the Migration Certificate is not wholly clear but it is likely to have been Mr Makarjang Limbu himself. It remains something of a mystery but is not of any real significance. It certainly records Unaj Limbu as the only "child" moving to that area.

12. The "father" was born in Change (No. ?) Taplejung District as recorded on his Nepalese Certificate. On his passport his current address is given as "Singiya 8, Sunsari". The "daughter" Miss Krishna Mati Limbu was born at "9 Change, Taplejung" in August 1963, and on her certificate, dated June 1998, her current address was given as "Ward 8, Singiya, Sunsari". There are other references to the two addresses which I do not understand to be specific houses but areas of accommodation within a village. It may well be that this family and members of it from time to time moved backwards and forwards from well known family areas. It may be Hangsmati Limbu was living in the area to which the family eventually migrated in 1991, at her death in 1981.

13. Another point made against the Applicant is that the names of his brother and sister are not on the Migration Certificate although their addresses as disclosed by the Citizenship Certificates and the Death Certificates are also "Singiya V.D.C. 8, Sunsari". Again I do not think these discrepancies are significantly material to the Applicant's case.

14. Finally a point which seemed to feature large in the Immigration Officer's determination and at least as prominently in the appeal to the Tribunal was contained in a letter obtained by the Tribunal from the Records Office of the British Gurkhas at Pokhara. The letter was dated 25 August 1998 and was in reply to the Immigration Department's letter of 13 August 1998. At one stage there seemed some possible uncertainty over the service number but this did not persist. The Army reply contained information from the kindred role of Rifleman Makarjang Limbu. The earlier letter of 28 January 1998 gave information extracted from the Service Records of the ex-soldier. The only additional information was the name of another two wives, Hangsamati being the second wife (now deceased and the year of death being recorded as 1981).

15. The first wife was named Mankumari who was divorced in 1962, five years before Yograj (or Unaj) was born. The third wife was named as Jujumati. There are no children recorded other than those in the January 28 letter. Though it is of no consequence the deaths of the two sons are not recorded. It is likely that the only record of family members which needs to be kept up to date is that relating to the wife of the ex-serviceman for the purposes of the pension.

16. This point i.e. the existence of a wife before Hangsamati, and of another after her death, featured in the Immigration Officer's notes of interview in a less than clear cut way. It appears the Applicant was asked "How many wives did your father have?" His answer was "One only, my mother." (I have introduced the direct speech to accord with the note.) "Do you know the names Mankumari and Jujumati?" "No." It was not put to him that his father had two other wives and those were their names; that is clear from the note. There was then, no doubt for reference purposes, an oblique mention of the August 1998 letter from the Gurkha Army Records Office.

17. It is on the strength of this that paragraph 13 of the Summary of the Facts of the case concludes - "The Appellant was not believed to be member of the serviceman's family as he was not familiar with the family's composition."

18. Paragraph 15 refers to all his identification documents being "newly issued in 1998". It comments that his identity before 1998 was not known, and that the documents produced by him could not substantiate his claimed relationship with his parents. The point about his ignorance of the fact that his father had three wives was again made as "further creating doubt as to whether he was a member" of the serviceman's family. His application was rejected and so he appealed.

19. For the purpose of that appeal he was sent a number of documents. He was not sent the Immigration Department's letter to the Army Records Office, or the Army Records Office's reply, which were both listed on the Index - and of course was not shown the record made by the Immigration Officer of the interview.

20. I do not see any need or justification for the withholding of these documents.

21. I turn now to the transcript of that hearing. The Immigration Department was represented by Senior Immigration Officer Mr Cheung Hon Leung. The proceedings were conducted in Nepalese with English translation according to the record but in fact it appears they were conducted in English with Nepalese translation. Nothing turns on this.

22. The Applicant at an early stage asked for an adjournment as his witnesses could not attend that hearing. This was refused because he had been notified of the hearing some time earlier. That refusal was reasonable. However one of the Adjudicators immediately followed that with

"What we suggest is, if you would like to give evidence then you give evidence now. And then we will see, we will take it from there."

23. The last sentence in that context clearly indicated that the Tribunal was keeping open the possibility of granting an adjournment to allow other witnesses to give evidence. It is clear that this never came back in the Tribunal's consideration nor was anything further said to him about this. Although not a point taken in relation to the proceedings it features in my view as an unfortunate "loose end" in the procedure adopted.

24. After he had made a short statement on oath he was cross-examined by the Senior Immigration Officer, Mr Cheung. I propose to deal with a number of aspects of the cross-examination because the Applicant was unrepresented and these are unsatisfactory. I am not being gratuitously critical because I realise that Mr Cheung is not a trained lawyer.

25. The Applicant said that his given name was Unaj, and that he had and knew of no other, apart from what was referred to in the Army Records Office Letter (viz. Yograj). Mr Cheung then misstated his reply to this effect "You said you don't have other names and now you recall you still have another name which you call it Yograj." That was a quite inaccurate and misleading comment or interpretation.

26. A little later Mr Cheung took him to task on his use of the word 'amend' when all he had done was obtain the Army Records Office's Certification (Exhibit 10) to the effect that Unaj and Yograj were one and the same person. That was an inconsequential and pedantic exercise.

27. He was asked if he had proof that he had used the name Yograj in Nepal yet he was making it quite clear that he had never used it and never knew until presented with document Exhibit 9 that name existed in relation to him or his family.

28. The point was made by way of a comment, intended as a question, that his father had never amended the record with the British Army to substitute Unaj for Yograj. How he would know why his father did or did not seek to change any record is difficult to understand. It was pursued and he was asked "Can you explain?" Of course he could not but the line of questioning was shown to be unsound when the Applicant stated, as he did more than once, that the name Yograj only came to his knowledge when he was given Exhibit 9 in the bundle of documents for the appeal.

29. The only other comment I would make in passing, in relation to Exhibit 10, is that although the Immigration Department wrote to the Army Records Office in August 1998 (Exhibit 28, one of the documents withheld) apparently seeking information from the Army Records Office to see what support there was for the Applicant's claim, it did not raise with that Office the certificate in a document of the same date (i.e. Exhibit 10 dated 28 January 1998) which certificated Unaj and Yograj as one and the same person. Yet it is clear from the date stamp on Exhibit 10 that the Immigration Department had been in possession of Exhibit 10 for over four months before it wrote to the Army Records Office. Whatever point the Officer was seeking to make on that document was a thoroughly bad one.

30. In relation to Exhibit 9 and the name Yograj, Mr Cheung persisted in his questioning on a false premise:

"Do you have other proofs that you have used this name Yograj in Nepal?"

and

"Now you try to tell us that you have adopted a new name Limbu Unaj."

when all the time the Applicant was saying he had only ever known his name to be Unaj.

31. Another odd point is the question put to him about the School Certificate which he said was given to him in 1982/83. He was asked why it was not translated until 1998. Wholly reasonably he explained that it was not necessary for it to be translated until 1998 i.e. the year of his application.

32. The apparent discrepancy between the Army record of his "father's" birth as "1940" and that on the Nepalese Citizenship Certificate (dated January 1987) as 17 August 1936 was put to him. He put forward some reasonable explanation but it was not for him to explain an apparent discrepancy in his father's age which does not seem to be material.

33. He was questioned about the fact that on the Death Certificate of his mother it is recorded that she was a resident of "Ward No. 8 Singiya" an address to which the family migrated in 1991 according to a Migration Certificate. In fact, the Applicant says, her death was not registered until April 1997 (the Certificate bear the date 11 April 1997), and such registration was for the purpose of obtaining documents for his application. By implication he must have erred in putting the family's current address instead of the address at which she lived in 1981 when she died.

34. The Migration Certificate was applied for by his father. There are clear discrepancies of fact. He was asked by Mr Cheung if he had tried to rectify any of the errors on the face of the record. Implicit in his reply was a negative answer. But this was a na?ve line of questioning. These were matters for the head of the family to deal with.

35. The questioning moved on to the number of wives his father had. He repeated the only wife he knew of to be his mother. Then, for the first time, the letter from the Army Records Office referring to three wives was produced to him. Mr Cheung concedes as a matter of common sense that the Applicant would not know of the first wife, who was divorced five years before he was born, and who apparently bore no children. As to the third wife, Jujumati, the Applicant said he was not aware of her existence. This was of course the first time he had seen any document setting out this position. The Summary of Facts had misleadingly stated the Applicant had been questioned about his "father's" three wives at the interview - he had not. That document had not identified the names of the other two and although at the interview the names were mentioned it was not specifically in the context of their being the other wives. If they had been so identified there was no point in withholding the letter from the bundle of documents supplied to him. On the strength of the Applicant's inability to provide further information Mr Cheung addressed the Adjudicators as follows:

"In my view (sic) that the Appellant is not believed to be a member of the serviceman's family, as he was not familiar with the family's composition."

Apart from its dubious propriety as a statement of belief to a Tribunal which was to form its own view, it showed a singular lack of logic.

36. The questions put by the Adjudicators were almost entirely confined to going over old ground. The Applicant made it clear that he had not studied these documents before submitting them to the Immigration Department.

37. The Immigration Officer made a final submission which was simply a repetition of perceived discrepancies and the significance attributed to them by Mr Cheung, with the, in my view, attendant lack of logic in respect of some of his points.

38. Finally I turn to the Decision of the Tribunal. There is a section headed "Discrepancies in Evidence".

39. The first repeats the point made by the Immigration Officer that none of the documents he produced relating to his identity predated the copy Birth Certificate. It makes a statement which is difficult to fathom - "The past identity assumed by the Appellant prior to the issue of the Birth Certificate in May 1997 was not reflected in the documents". What does this mean? He always maintained the name he was known by was Unaj. What did the Tribunal mean by "assumed"? Paragraph (b) is concerned with the same point, namely that there are no documents prior to 1998 to show that the Applicant had used the name Yograj. This again repeats the misconception advanced at the hearing that the Applicant ought to be in possession of a document showing how Unaj became Yograj or Yograj came to be the Applicant. The School Transfer Certificate, though undated, was, he said, given to him in 1982/83. No mention of this fact was made in the findings. The Tribunal relied upon the contents of the Immigration Officer's interview record which were not formally proved at the hearing.

40. The remainder of the findings were a simple acceptance and repetition of the Senior Immigration Officer's submissions i.e. the spelling of the serviceman's name, his recorded dates of birth, the spelling of the deceased mother's name, the inconsistency in the two addresses and finally, the matter of the number and identity of the serviceman's wives. In this regard it repeated the error of Mr Cheung - the interview record did not state that the Applicant was then told the father had three wives and that he replied he had no knowledge of this.

41. At the risk of being myself repetitive I find it necessary to restate the position of this interview record. It was not provided to the Applicant before the hearing. I can see nothing in the transcript of the hearing to show it was disclosed to him even then, yet its contents were relied upon by Mr Cheung and the Tribunal. It is not a transcript of a tape-recorded interview. It is not signed by the Applicant. There was no written statement taken from the Applicant at the time. The Immigration Officer making the record was not called to prove that record or deal with any of the uncertainties arising from the record.

42. In the decision itself is reference to the Applicant's demeanour. But the Tribunal says nothing more than that - "We had the opportunity to closely observe the Appellant and his demeanour when giving evidence". What was his demeanour? How did it affect any of the evidence? What part did it play in the decision?

43. The two short paragraphs simply reiterate in general form the failure to produce any documentation which predated the date of issue of the Birth Certificate (15 May 1997) and the discrepancies in the documentary evidence with some passing reference to the Applicant's evidence in cross-examination.

44. I regret to have to say that I find these proceedings were seriously defective. They showed little regard for the principles of fairness in the respects which I have outlined. I have considered in some detail the way the hearing was conducted because serious thought must be given in my view to ensure that what took place must not be allowed to happen again. It is not acceptable to provide at the last minute to an unrepresented Applicant, a document relating to a matter which the Immigration Department and the Tribunal consider material to the issues. I put to Mr William Marshall SC, who appeared on behalf of the Commissioner and Tribunal, the reaction of a representing lawyer who found his opponent putting to his client such a document which had not been disclosed in advance. Understandably of course he would have objected. He would have rected similarly, I anticipate, in relation to a document upon which his client had been cross-examined and which may have been available to the Tribunal but not it appears to the client. I refer to the file note - M5 - made by the Immigration Officer as a result of the interview on 27 August 1998. Although the Applicant was cross-examined on it, it is not clear whether it was amongst the Tribunal's papers. Nonetheless it featured in item 10(g) of the Tribunal's findings as illustrating a "discrepancy" in evidence. This record of interview assumed importance in respect of the alleged discrepancies concerning his education and his knowledge of his father's three wives.

45. Mr Marshall's submissions are premised on the Wednesbury test of unreasonableness. I have made it clear in my earlier consideration of the "discrepancies" explored by the Senior Immigration Officer and the Tribunal that there is a patent lack of logic in some arguments and findings, and there are trivial matters to which an unreasonable significance has been attributed.

46. In Chief Constable of North Wales v. Evans 1982 1 WLR p. 1155, Lord Brightman at p. 1173 G-H and p. 1174 F - G (referred to by Mr Marshall) re-stated that "Judicial Review is concerned not with the decision but with the decision making process" in underlining one of Lord Reid's categories - the Respondent was entitled to a fair hearing. He dissented from Lord Denning's statement that "not only must he be given a fair hearing but the decision itself must be fair and reasonable". Lord Brightman expanded his view in Regin v. Hillingdon LBC ex parte Puhlhofer 1986 1 AC p. 484 at p. 518 B-E:

"The ground upon which the courts will review the exercise of an administrative decision is abuse of power e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness in the Wednesbury sense."

It is important of course to bear in mind that this statement, valid though it obviously is, was made in the context of "the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the Act of 1977". It is a moot point as to whether the criterion is nowadays confined narrowly to the Wednesbury principle.

47. Lord Templeman in R v. ITC ex parte TSW Broadcasting Limited 1996 JR 185 at p. 191 (also cited by Mr Marshall) stated:

"The courts have invented the remedies of judicial review not to provide an appeal machinery but to ensure that the decision maker does not exceed or abuse his powers .....

,,... The rules of natural justice do not render a decision invalid because the decision maker or his advisers makes a mistake of fact or law. Only if the reasons given ..... for the decision ..... disclosed illegality, irrationality or procedural impropriety ..... could the decision be open to judicial review."

48. Mr Marshall also referred to the off-quoted dicta of Lord Loreburn in Board of Education v. Rice 1911 AC p. 779 at p. 182:

"They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view .....

But if the Court is satisfied either that the Board have not acted judicially in the way I have described, then there is a remedy by mandamus and certiorari."

The proceedings were conducted in an unfair manner by the use of documents disclosed at the last minute. I have already dealt in some detail with this aspect and the fact that the material clearly had some influence upon the Tribunal's decision. Mr Marshall referred to Tran Thang Lam v. Director of Immigration 1998 1 HKLRD p. 789 and Yadvinder Singh v. Secretary of State for the Home Department 1998 IMM. A.R. p. 480. Neither is in point. An entirely different situation obtained in both those cases. They do not purport to cover the position in this case which I have dealt with in several sections of this judgment. The fact that the Applicant deposed in his affirmation that the documents were not produced to him at the hearing is likely to be a misunderstanding. They were collected and retained by the Senior Immigration Officer. The Applicant may well be confused over this. There can be no dispute that he was not shown the interview record despite being questioned upon it and its contents forming part of the Tribunal's consideration. Mr Cheung deposed to an affirmation which in part is a review of the history and procedures, and in past a regurgitation of the arguments on behalf of the Immigration Department. To that latter extent it was inappropriate.

49. There was also an irrational element in some of the points made, the consideration of them by the Tribunal and the extent to which they influenced the decision. They include the issues of the "father's" birth date, the spellings of the "father's" and "mother's" names, the Applicant's school record, and the number of wives the father had had.

50. There is however a far more important point which could have eliminated the consideration of such trivia by the Tribunal and prevented the unwarranted elevation of these points to the basis of a decision adverse to the Applicant. This application was concerned with birthright, something far too important and fundamental to be determined by some dubious inferences drawn from some inconsequential documents. In countries and regions with a strong bureaucratic basis there is an abundance of documents, records, paperwork generally which can be used to prove a chain of family links. Many countries like Nepal do not have such advantage. There is a simple test of consanguinity which ought to be available to anyone claiming birthright. It is not a recent innovation. It has been used in criminal cases to determine identity. It has been used in family law cases to determine paternity. It has been used recently to confirm identification of human remains as those of members of the Russian Royal Family murdered at Ekaterinburg during the Russian Revolution. I understand that it is available to Applicants from the Mainland claiming right of abode as family members of Hong Kong residents. It ought to be available to this Applicant and others like him. His has asked for a DNA test. There are people alive, including his father, from whom DNA profiles may be obtained. Any reluctance on the part of the Immigration Department to allow him that test would itself be unreasonable. It seems to me, in this day and age that this should be a first step taken by the Department on their initiative, not a last resort sought by an Applicant.

51. I was informed of the cost of this. It may be up to $6,000. It is highly likely that this Applicant could not afford this. That is no reason for his offer or request not to be accepted. The Department should of course establish the protocol under which the test should be conducted. If cost is advanced by the Department as an inhibiting factor in this scheme of things they would do well to count the cost of the appeal and its participants, the preparation of documents, affirmations, transcripts, legal proceedings including instructing Leading and Junior Counsel on behalf of the Department and the cost to the Legal Aid Department of the representation of this Applicant, and finally the cost of judicial resources on the hearing of this application. I anticipate the result of the costing exercise will produce a deafening silence. Probably the fees of the lawyers alone would pay for many DNA tests by the Government Chemist.

52. Accordingly I make the order sought of certiorari quashing the decision of the Registration of Persons Tribunal of the 16 April 1999; I order a rehearing of his appeal before the said Tribunal. In my view it would be more practical for the process to start again with a DNA test being arranged for the Applicant.

53. There will be an order that the Respondents do pay the Applicant's costs of these proceedings ab initio, and an order for Legal Aid taxation.