CHAN CHOI HUNG AND OTHERS v. IMMIGRATION TRIBUNAL

HCMP No.239/93

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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IN THE MATTER of an application for Judicial Review

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J U D G M E N T

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1. I have before me a motion for judicial review on behalf of two minors Chan Choi Hung and Chan Choi Ping who sue through their father Chan Lam Choi (Mr Chan) for an order for certiorari to quash a decision of the Immigration Tribunal made on the 28th October 1992 that upheld decisions of the Director of Immigration to make removal orders against the children on the 27th August 1991. Leave for judicial review was granted by Rhind, J. on the 29th January 1993. This is, in fact, the second motion for judicial review issued on behalf of the applicants relating to the removal orders.

2. In his affirmation in support of his application for leave Mr Chan stated that he came originally to Hong Kong illegally in about 1974. Some time later he obtained a Hong Kong identity card, and he has worked here as a construction worker. Mr Chan was married in China in 1979. His wife came to Hong Kong illegally in 1980 and lived with him at an address in Yuen Long.

3. On the 20th May 1984, Mr Chan's wife gave birth to a daughter at the Queen Elizabeth Hospital. However, in the following month having been living in Hong Kong for 4 years, she was sent back to China. Mrs Chan again came to Hong Kong illegally in March 1985 and lived with her husband at another address in Yuen Long. As she was an illegal immigrant, Mrs Chan seldom went outside the home except for the purpose of washing clothing and to buy food. Nevertheless, she came to know a neighbour, Madam Cheng Tit Mui (Madam Cheng), who had seen her when she was pregnant, and also Madam Tsang To (Madam Tsang) who had also seen her in this condition. Mrs Chan gave birth at home to the applicant children on the 19th June 1986 and the 21st April 1987. Mr Chan alleges that he acted as midwife on both occasions.

4. In October 1990, the Immigration Department was approached with a view to regularising the position of Mrs Chan and the two daughters, but instead removal orders were made, as I have said, on the 27th August 1991. Appeals to the Immigration Tribunal were dismissed on the 25th April 1992. Proceedings for judicial review were then instituted. However, a consent order was made on the 10th September 1992 quashing the decision of the Immigration Tribunal with a rehearing to take place before a differently constituted panel of adjudicators.

5. The second appeal was heard on the 28th October 1992 when Mr Chan attended with his wife and daughters together with Madam Cheng and Madam Tsang. Mr Chan has made certain complaints about the manner in which the hearing was conducted which allegations have been denied in an affidavit made by one of the adjudicators. The truth of the allegations cannot be determined upon the affidavits, and for the purposes of my decision, it does not matter. Nevertheless, I have been informed by Mr Barlow, counsel for the applicants, that his instructing solicitors endeavoured to obtain a copy of the record of the proceedings which the tribunal is required to keep under Regulation 13 of the Immigration Regulations. The application was refused although leave for judicial review had been obtained. There can be no justification for such a refusal and no good reason was advanced by Mr Kwok who appeared for the respondent for so doing. However, I trust that in future requests of this nature will be complied with. Fortunately, a decision on the present motion can be made without the record of the proceedings having regard to the reasons for the tribunal's determination.

6. The only issue for determination by the tribunal was whether the two applicant children were born in Hong Kong or in China.

7. The reasons given by the adjudicators for their decision in dismissing the appeals were as follows :

"(1) Mr Chan Lam Choi, father of the appellants, Miss Chan Choi Ping and Miss Chan Choi Hung has been unable to produce a single piece of evidence to prove that the two Miss Chans were born in Hong Kong.

(2) The movement records of the Immigration Department showing Mr Chan's actual movements into and out of Hong Kong for the past several years are generally at variance with Mr Chan's alleged movements. For example, Mr Chan should stay in Hong Kong during Chinese New Year at 1988 with Mrs Chan and the three daughters; but the record indicated that he was spending 17 days in China touring around which makes it seem highly unlikely that Mrs Chan and the two appellants could be in Hong Kong then. Mr Chan's period of absence from Hong Kong since mid-1989 has shortened significantly, leading one to suspect that Mrs Chan and the two appellants were in Hong Kong in mid-1989.

(3) Mr Chan could not agree with Mrs Chan on the teaching of delivery of the baby, the presence of the elder daughter during delivery and the source of photo 13 from China.

(4) The other witnesses were also unable to prove anything to the appellants' advantage.

(5) The parents could not produce separate evidence to satisfy the tribunal that either one of the two appellants were born in Hong Kong."

Determination

(6) Based on the above observations and on the balance of probabilities, the tribunal is of the opinion that the appellants were not born in Hong Kong and do not enjoy the right of abode in Hong Kong under s.2A of the Immigration Ordinance. Accordingly, their appeals are dismissed."

8. The reasons are quite astonishing, to say the least. Whilst I appreciate that the adjudicators were lay persons with, I assume, no legal qualifications, that does not warrant the statement "Mr Chan .... has been unable to produce a single piece of evidence to prove that the two Miss Chan's were born in Hong Kong". There was the evidence of Mr and Mrs Chan who were present at the births of the two children and the two ladies, Madam Cheng and Madam Tsang. Further the statement that the other witnesses were unable to prove anything to the applicants' advantage was wrong for both Madam Cheng and Madam Tsang said that they had seen Mrs Chan when she was pregnant. Whether the evidence that was given was credible or not was of course a matter for the adjudicators to decide, but the issue of the credibility of the witnesses was not addressed.

9. Mr Barlow, counsel for the applicants, criticised paragraph 2 of the reasons on the grounds that Mr Chan had been given no opportunity to produce documentary evidence to support his testimony that he went to China to visit his mother who was ill so that the inference drawn by the adjudicators to lead them to their conclusions in this paragraph was not based upon any material facts. I agree.

10. A number of cases were cited to me by counsel with regard to the rules of natural justice and to the necessity for a fair hearing but it will only be necessary for me to refer to two authorities which are relevant to the present proceedings.

11. In the first case Mahon v Air New Zealand [1984] 1 AC 808 Lord Diplock at 820 had this to say about the rules of natural justice :-

"The rules of natural justice that are germane to this appeal can, in their Lordships' view, be reduced to those two that were referred to by the Court of Appeal of England in Reg. v. Deputy Industrial Injuries Commisioner, Ex parte Moore [1965] 1 Q.B. 456, 488, 490, which was dealing with the exercise of an investigative jurisdiction, though one of a different kind from that which was being undertaken by the judge inquiring into the Mt. Erebus disaster. The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.

The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.

The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result".

The issue of findings on the credibility of witnesses and the conclusions to be drawn from such findings in an immigration appeal was considered in R. v. Immigration Appeal Tribunal ex parte Mohd Amin [1992] Imm AR 367 where Schiemann J. at 374 said :-

"Mr Shaw submitted that it was clear that the adjudicator had rejected this evidence. He may be right that the evidence was rejected but there was no finding by the adjudicator as to this or indeed any other express finding in relation to the credibility of either the wife's evidence or that of her father. Mr Shaw relies on the reference by the adjudicator to 'an incredible arrangement'. He submits that it is for the parties to satisfy the adjudicator and, if they put forward material which is incredible, then the adjudicator cannot be blamed for failing to be satisified.

But it is not clear to me on reading the adjudicator's decision what precisely it is that she is describing as 'an incredible arrangement'. On the face of it, it appears to be an arrangement that if the husband comes over here the wife will be prepared to support him whilst he remains at home looking after the child. Mr Shaw submits that in substance what the adjudicator is saying is that the whole story being put forward by the applicant, the sponsor and their parents is incredible. But parts of that story the adjudicator appears to accept. In my judgment adjudicators should indicate with some clarity in their decisions:

(1) what evidence they accept;

(2) what evidence they reject;

(3) whether there is any evidence as to which they cannot make up their mind whether or not they accept it;

(4) what, if any, evidence they regard as irrelevant."

A good example of reasons for adjudicators of the Immigration Tribunal to follow can be found in the decision of Mr P.M. Rattigan, formerly a District Judge in Hong Kong, in the case of Mo Cheuk Wa and Mo Cheuk Man delivered on the 24th March 1993. In particular I commend his observations that are directed to the evidence of witnesses who are not necessarily telling lies when some of the evidence is inconsistent.

12. It must be assumed that the evidence of Mr Chan and his witnesses was disbelieved, but no reasons were given as to why the adjudicators reached their conclusions. Nevertheless it is a corollary as submitted by Mr Barlow that in rejecting the evidence, Mr Chan and the other witnesses were lying and had conspired to deceive the tribunal. In that event, if that had been the conclusion of the adjudicators, the witnesses should have been given an opportunity to be tested by way of cross-examination.

13. Further, if Mr Chan had been given the opportunity to adduce the documentary evidence to which I have referred earlier to support his evidence that he went to China to see his mother who was ill and who subsequently died might have resulted in the tribunal coming to a different decision. This failure amounts to a procedural impropriety which is a breach of the rules of natural justice.

14. The rejection of the applicants' case can only be described as irrational for there was clearly evidence before the tribunal to support the claim that the two children were born in Hong Kong which, if it had been believed, would give them the right of abode.

15. It also appears that although the adjudicators stated that they made their determination upon the balance of probabilities, in fact, upon the evidence a higher burden of proof had been called for.

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