Re SUN YEUNG BIN，EX PARTE

1995, No. MP 899

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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D E C I S I O N

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1. This is an application by Ms. Sun Yeung Bin for an Order for Certiorari to quash the decision of the Director of Immigration dated the 15th June 1994 refusing her permission to remain in Hong Kong as a dependent spouse of a Hong Kong permanent resident and mother of a Hong Kong permanent resident.

2. The original application made to the Director of Immigration by the Applicant was thus an application for change of status. The complaint made is that no reasons were given for the refusal. As I will elaborate below, I consider that despite concern in one aspect, that complaint fails. I have been troubled by the consideration that on the facts as they have been presented it seems to me that in fairness to the Applicant that she should have been told the basis on which the decision was approached. Nevertheless I have no doubt that the Director of Immigration would come to exactly the same decision if an Order were granted and the matter were remitted to him for his reconsideration. Moreover the Director has taken other steps which now make clear the basis on which he is acting.

The Facts

3. The Applicant's case is that she was born in Guangzhou in 1967. She went to live in Peru in 1990 and became a naturalised Peruvian in 1992. The Applicant says that she was issued a Peruvian passport in November that year and came to Hong Kong on the 26th December.

4. From the evidence which has been filed it is clear that the Applicant's version is not one that is accepted by the Director of Immigration. It is said on his behalf that enquiries have been made of the Peruvian Consulate and whereas the passport is genuine to the extent that it is printed on the usual materials used for Peruvian passports, the information given to the Director indicates that the passport was not issued to the Applicant nor indeed was any other Peruvian passport.

5. The matter goes slightly further than that however. The Immigration chop on page 15 of the passport is dated the 26th December 1992 and has the number 184. There is a statement from Dr. Poon, a forensic scientist with the Government Laboratory. That indicates that it is his conclusion that the chop was a forgery. It would seem that there is little doubt that it was a forgery. No attempt was made to gainsay Dr. Poon's observation as to the shape of the figure "9" appearing as part of the date being a different shape to that made by the genuine chop. I note here that the Magistrate, in proceedings to which I shall come, was also of the same view. The matter relied upon by the Applicant is that it was not shown she knew that the chop appearing in the passport was a forgery. Even if that were right, the Applicant's absence of knowledge of the forged nature of the chop does not make the chop mark any more valid or change what was not a permission to land into a valid permission.

6. Shortly after the Applicant arrived in Hong Kong she married a Hong Kong resident and gave birth to his child. Far more recently there has been another child of the marriage.

7. After the birth of the first child the Applicant applied to change her status to be treated as a dependant spouse. That Application was apparently made on a standard form which does not indicate whether it is made on the basis that the person applying claims to have landed lawfully or admits to having landed unlawfully. As a result of that application the Immigration Department made investigations and came to the conclusion that the Applicant's passport bore a forged immigration arrival endorsement (i.e. the entry chop).

8. The Applicant was prosecuted before a magistrate for offences under Section 75(1) of the Crimes Ordinance of having a forged instrument namely the immigration arrival endorsement knowing or believing it to be false.

9. The Applicant was acquitted by the Magistrate. He held that although the chop was false a chop, there was no proof that the Applicant knew that it was false. It is pertinent to point out that considerable doubt appears to have been raised as to whether there had been in existence an arrival card. That doubt was raised as a result of an answer given in cross-examination by an Immigration Officer who had prepared the exhibits for Court. Whilst I have no doubt that the Magistrate was correct in his decision, given the state of the evidence before him and the issues that he had to decide, that is not conclusive nor binding as against the Director in relation to other matters.

10. At the end of his written judgment the Magistrate made an order returning the passport to the Applicant on the basis that there was no "suggestion that the Peruvian passport is anything other than a valid and lawful travel document."

11. Thereafter an application to review the decision not to forfeit the passport was refused by the Magistrate. Although the application for review was made promptly the matter was not heard until early this year. Again the Magistrate was no doubt right to approach the matter in the way he did. To date the only matter which has ever been adduced as to the lack of authenticity of the passport has been 2 letters from the Peruvian Consulate and they indeed themselves relate what would be hearsay evidence. Obviously such material could not be used as evidence of the truth of their contents before a Court let alone one exercising criminal jurisdiction.

12. Where however, the learned Magistrate seems to me to have gone beyond what he had to decide on the prosecution is the very final sentence of his written reasons for the acquittal where he says that :

"... in all future dealings with the Immigration Department the (Applicant) must be dealt with as a person who has lawfully entered Hong Kong."

That is something which fell outside the Magistrate's province. He was only to decide whether there had been an offence under the Crimes Ordinance and if so what the penalties should be and whether under his jurisdiction the passport should be forfeited.

13. In June 1994 about 2 months after the acquittal the Director of Immigration refused the Applicant the change of status. No reasons were given.

14. There are further events which I should mention. In December last year the Director of Immigration made an order under Section 32(2A)(a) of the Immigration Ordinance for the detention of the Applicant pending a decision as to whether or not a removal order should be made under Section 19(1)(b)(ii) of the Ordinance. The Applicant was released on a recognisance.

15. In January of this year after the hearing of the review a further application was made to the Director of Immigration this time asking him to reconsider the earlier decision on change of status. That was refused a month later. An attempt was made to judicially review that Decision but the Judge pointed out that it was more appropriate to apply to judicially review the refusal of the 15th June the previous year.

The exercise of the Director of Immigration's Powers

16. The Director of Immigration has wide powers under the Immigration Ordinance. In particular he may vary any condition attached to a permission to stay. His powers in this regard which are contained in Section 11 (5), (5A) and (6) relate to persons who have landed or may land legally. Section 13 of the Ordinance applies the same provisions to those who have landed in Hong Kong unlawfully.

17. It might seem therefore that the same powers to permit the Applicant to remain in Hong Kong as a dependant spouse and mother exist whether the Applicant has landed lawfully or unlawfully. That is so, save for the fact that in exercising the discretionary power the nature of the landing by the Applicant might be expected to be a relevant factor. In some circumstances the period within which an objection might be lodged under Section 53 to the Director's decision would be different depending upon whether the landing was lawful or unlawful. In this case it would not make any difference as the Applicant has been in Hong Kong for well over 10 days on any reckoning.

Reasons for administrative decisions

18. The decision of the Director to permit a change of status is an administrative decision. There is clear authority that when the Director is exercising his discretionary administrative powers reasons need not be given. In so far as authority for that proposition is wanted I would refer to what was said by the Court of Appeal in Ho Ming-sai and others v The Director of Immigration [1994] HKLR 22. Mr. Dykes in his able argument on behalf of the Applicant drew my attention to the fact that the law as to the giving of reasons is never rigid. Administrative powers have to be exercised fairly. The standards of fairness are not immutable. More particularly, what is fair may not only change but has to be judged according to the facts of each case. He relied not only on what Lord Mustill said in R v. Home Secretary, Ex parte Doody [1993] 3 WLR 156 but the succinct statement by Sedley J. in Regina v. Higher Education Council Ex parte Institute of Dental Surgery [1994] 1 WLR 242. As the Judge said in the latter case where the subject matter is an interest which is highly regarded by the law such as personal liberty, fairness requires that reasons be given. That should be looked upon as a matter of right. Lord Mustill referred to the perceptible trend and continuing momentum in administrative law to openness of decision-making1.

19. It is said that the trend to openness has led to the need to reconsider the basis of the decisions such as Ho Ming-sai.

20. I have given the fullest consideration as to whether the exercise of the Director's discretionary power should not be accompanied by reasons where it involves a decision as to the personal liberty to remain in Hong Kong. The Applicant's ability to live and work here is no doubt one of the most important factors governing her life. She is married to a husband who lives here. They have 2 children. To deny the Applicant the right to live with her husband and children will not only disrupt the Applicant but will either cause a separation of the family or the family to move. Whether there is a country where all the members have a right to live I know not. Whether there is another country where the breadwinner of the family can not only live but work has not been explored. A separation of the family would doubtless not merely cause anguish to all concerned but common sense indicates that there must a live possibility that it could have a lasting deleterious effect on the children.

21. It troubles me that such grave decisions can be made on a basis that the reasons need not be given. Nevertheless in my view the facts relating to the decision in Ex parte Doody, relating as it did to the Home Secretary's function in relation to mandatory life sentences, are so far removed from the present facts that in any event it would be right to leave the consideration of what in my view would be a significant change in the law to the Court of Appeal. On the present state of the law I feel that despite the obvious trend to the requirement for reasons, still as Lord Mustill himself said in Ex parte Doody the law does not at present recognise a general duty to give reasons for an administrative decision2.

22. I feel it necessary to mention one further matter. It seems to me that even if the Director of Immigration were not required to give reasons for his decision to refuse an application for a change of status, it might be appropriate for him to inform the Applicant that he was treating her as having landed illegally. I say that in the light of the fact that in view of the known policy guidelines acted upon by the Director it might have been anticipated that if the Applicant had been in possession of a valid travel document and landed lawfully, the Applicant might have legitimately been optimistic as to the chances of success. The judgment delivered by the magistrate might be said to have raised legitimate expectations in the Applicant's mind that her application would be treated on that basis. On this aspect however, I consider that whilst in other circumstances it might have been right to have made an appropriate order to make that clear, in the present circumstances it would be wrong. I say that for 2 reasons.

23. In the first place on the facts recited in the Affidavit of Lai Chun Ting filed on behalf of the Director of Immigration, the Director would inevitably come to the same conclusion again even were he to go through the whole exercise over again. The matters which are set out there seem to me to be quite proper for the Director to take into account; in a Court the letters from the Consulate may not constitute admissible evidence of the truth of their contents but to a reasonable man they constitute a proper basis for forming a decision. The view taken that the chop was not the chop of the relevant Immigration officer also appears justified. In the second place an order was made under Section 32(2A) of the Ordinance for the detention of the Applicant pending a decision whether to make a removal order under Section 19(1)(b). The seemingly only relevant provision in that sub-section would be that the Applicant has landed in Hong Kong unlawfully. It was thus clear last December that, despite the statement of the Magistrate, the Applicant was being treated as having landed unlawfully.

Conclusion

24. I therefore must refuse this application and in doing so I make an order nisi that the Applicant do pay the Respondent's costs.