IN RE LUI SIU HEUNG AND OTHERS

1993, No. MP 2513

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This one of these very unhappy and difficult split family cases. The 4th and 3rd Applicants are the parents and the first two Applicants are some of their children. There are also other children in China.

2. The 4th Applicant, the father and the 1st Applicant have a right of abode in Hong Kong. The 3rd Applicant, the mother admits to having been an illegal immigrant and a determination was made that the other child, the 2nd Applicant had no right of abode here.

3. The Respondent was asked to exercise the discretion reposed in him by S.13 of the Immigration Ordinance to allow the 2nd and 3rd Applicants to remain in Hong Kong on the grounds that there were compelling humanitarian reasons to justify this. He declined to do so.

4. The reasons related to the 4th Applicant's medical condition.

5. I consider that Mr. Dykes for the Applicants has fairly and accurately summarised the Medical Reports he relies upon and the consequences flowing from the 4th Applicant's condition in the very helpful skeleton he prepared for the hearing.

"The Report of Dr Peter Wu

5. The findings of Dr Wu were as follows:-

i. That the Fourth Applicant was cyanotic [i.e. he had blue jaundice].

ii. That his left arm was spastic and paralysed with complete loss of sensation.

iii. That he had difficulty in breathing.

6. The diagnosis of Dr Wu was that:-

i. The Fourth Applicant had suffered multiple cerebral infarction due to cerebral thrombosis.

ii. The Fourth Applicant suffered from cerebral atherosclerosis due to hypertension and diabetes mellitus and cigarette smoking.

iii. The Fourth Applicant suffered from chronic bronchitis with emphysema.

7. The opinion of Dr Wu was that:-

'As a result of chronic hypertension and diabetes mellitus and cigarette smoking Mr. Lui is suffering from cerebral arteriosclerosis resulting in multiple episodes of cerebral thrombosis with infarction in 1989. A major episode of right parietal infarction had resulted in left hemiplegia and permanent loss of the use of his left hand. As the MRI indicated there was a substantial loss of brain tissue in the right parietal lobe and there is no hope of any recovery in the left hand function.

8. The observations of Dr Wu on the Fourth Applicant's ability to fend for himself and his general prospects were:-

i. That he would be unable to carry out daily household duties such as cooking and washing and looking after children.

ii. That he was not employable because of his medical condition.

iii That he would need medical treatment for hypertension, diabetes and his chest problems.

iv. That he might be epileptic.

The Report of Dr Sam Nariman

9. The findings of Dr Nariman were as follows:-

i. That the Fourth Applicant was cyanosed.

ii. That his left arm was spastic and paralysed with very little movement remaining.

ii That breath sounds were diminished over both lungs.

10. The diagnosis of Dr Nariman was that:-

i The Fourth Applicant had atherosclerotic cerebral vascular disease as a complication of (ii).

ii. The Fourth Applicant had diabetes mellitus.

iii. he Fourth Applicant suffered from hypertension.

iv. The Fourth Applicant suffered from chronic bronchitis.

v. The Fourth Applicant had residual left hemiplegia with weakness and spasticity in the left upper arm.

11. The opinion of Dr Nariman was that:-

i. The Fourth Applicant was no longer capable of independent existence.

ii. The Fourth Applicant had lost about 50% of his lung function and not capable of exerting himself.

iii. Although the Fourth Applicant's diabetes was under control because of dietary control exercised by his wife he was not capable himself of controlling his diet.

iv. The prognosis for the Fourth Applicant was poor unless he remained under the close supervision of Kwong Wah Hospital.

v. That the Fourth Applicant would not be likely to receive adequate medical supervision in the PRC."

6. The Relief which is sought is :-

"1. An order of certiorari quashing the said decision.

2. An order of mandamus directing the Director of Immigration to reconsider the exercise of his discretion under Section 13 of the Immigration Ordinance.

3. A direction that the grant of leave shall operate as a stay of the decision of the Director of Immigration made on or about 25 June 1993 that the said Ma Po Wan and the 2nd Applicant be removed from Hong Kong forthwith."

7. The grounds on which the relief is sought relate to Wednesbury unreasonableness. In Form 86A it is stated :-

"(D) IRRATIONALITY

23. The Director of Immigration is bound to exercise his discretionary power under Section 13 of the Immigration Ordinance by having regard to the particular facts of case under consideration. He is entitled to take into account the problem of illegal immigration when exercising his discretion.

24. The discretion vouchsafed to the Director is a broad one but is subject to the current self-imposed policy consideration that the discretion may be exercised in favour of an illegal immigrant where there exist "strong or powerful humanitarian grounds".

25. "Strong or powerful humanitarian grounds" such as considerations affecting the interests of children and of the family as a whole when purportedly considered by the executive in the exercise of a discretionary power are justicable: see R. v. Home Secretary ex p Brind [1991] 1 AC 696 at pp749, 750, 751, 757-58, 765.

26. In the circumstances, the decision of the Director of Immigration not to exercise his discretion in favour of Ma Po Wan and the 2nd Applicant is perverse given the medical history of the 4th Applicant and the fact that he is wholly incapable of looking after himself in Hong Kong and will be incapable of looking after the 1st Applicant. Ma Po Wan is removed together with the 2nd Applicant."

8. Leave to proceed was granted by Kaplan J. after hearing submissions inter parties. Mr. Dykes argued that some significance attached to the fact that the Applicants had succeeded in satisfying the judge that there was an arguable case. With respect I reject that submission. I consider that the granting of leave can be regarded as a form of filter. The mere fact that leave has been granted does not provide any assurance that the application will meet with success at the substantive hearing.

9. Mr. Dykes contended that having regard to the evidence which had been placed before the Respondent his decision was perverse. He had not even condescended to comment upon the views expressed in the Medical Reports.

10. He placed reliance upon a passage from the speech of Lord Ackner at p.757 of Ex parte Brind & ors. [1991] 1 AC 696.

" There remains however the potential criticism under the Wednesbury grounds expressed by Lord Greene M.R. [1948] 1 K.B. 223, 230 that the conclusion was "so unreasonable that no reasonable authority could ever have come to it." This standard of unreasonableness, often referred to as "the irrationality test," has been criticised as being too high. But it has to be expressed in terms that confine the jurisdiction exercised by the judiciary to a supervisory, as opposed to an appellate, jurisdiction. Where Parliament has given to a minister or other person or body a discretion, the court's jurisdiction is limited, in the absence of a statutory right of appeal, to the supervision of the exercise of that discretionary power, so as to ensure that it has been exercised lawfully. It would be a wrongful usurpation of power by the judiciary to substitute its, the judicial view, on the merits and on that basis to quash the decision. If no reasonable minister properly directing himself would have reached the impugned decision, the minister has exceeded his powers and thus acted unlawfully and the court in the exercise of its supervisory role will quash that decision. Such a decision is correctly, though unattractively, described as a "perverse" decision. To seek the court's intervention on the basis that the correct or objectively reasonable decision is other than the decision which the minister has made is to invite the court to adjudicate as if Parliament had provided a right of appeal against the decision - that is, to invite an abuse of power by the judiciary."

11. This passage had to be read in conjunction with the test laid down by Lord Diplock at p.410 of C.C.S.U v. Minister for Civil Service [1985] AC 374.

" By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C.14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision- maker. "Irrationality" by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review."

12. I do not think that this argument has any prospect of success.

13. In The Director of Immigration v. Ho Ming Sai & Ors. Unreported being Civil Appeal 162/1992 Litton J.A. had this to say at P.12 in a very similar type of case :-

" Looking at the possible grounds for judicial review, as referred to in ex parte Swati at p.482F, it seems to me that no question of illegality could possibly arise upon the facts disclosed in the affidavits. As to irrationality in the Wednesbury sense, I cannot see how it could be suggested that a refusal to allow illegal immigrants to remain in Hong Kong, for "compassionate" reasons, could bring the case within this ground. The Director has a very wide discretion under s.13 of the Immigration Ordinance, and it is not for the courts to say how that discretion should be exercised. As Mr. Graham, on behalf of the Director, submitted, there must be many persons in Mainland China applying through proper channels to enter Hong Kong legally on compassionate grounds; to allow others to "jump the queue" by breaking the law and then dealing with them favourably because they have done so may not seem wholly reasonable.

This leaves the last ground for analysis, that of procedural impropriety. Putting the applicant's case at its highest, it is this: the Immigration Department could, without detriment in any way to good administration, have stated whether they accepted Dr. Singer's opinion that the father, a Hong Kong permanent resident, required the care of his two daughters, the 1st and 2nd applicants; in particular, they could have disclosed, in the course of correspondence with the Director of Legal Aid, whether they had received contrary advice from the Tuen Mun Hospital to the effect that the father did not need the daughters to care for him. This argument hinges on whether, arguably, the Director was required to give reasons for his decision, or, perhaps more accurately, whether further consideration of this point might be justified on an inter partes basis. The answer in my judgment must be NO. There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other people: see Gibbs CJ in Public Service Board of NSW v. Osmond [1986] 60 ALJR 209 at 211 [High Court of Australia] where many Commonwealth authorities are cited.

An illegal immigrant could not expect to be permitted to remain in Hong Kong by the Director; indeed, if the Director were to exercise his discretion under section 13 to create such an expectation, he would be acting contrary to the whole scheme of the Ordinance, which is to regulate the lawful entry of persons into Hong Kong, either on a temporary or a permanent basis. Putting the applicants' case at its highest, they might hope that the Director would allow them to remain on compassionate grounds. There is no question here of anyone needing to make out a case against the applicants, before the Director could lawfully decide to order their removal to China. Assuming that the Director had obtained confirmation of Dr. Singer's opinion, say, from the Tuen Mun Hospital, that the father needed the care of the two daughters, still he could refuse them permission to stay. The Director has clearly much wider considerations to bear in mind, in exercising his discretion under s.13, than the welfare of the applicants. Assuming he had given reasons and had said: "It is generally not my policy to allow illegal immigrants to stay; I see no reason to depart from that policy in this case": would the applicants be any better off?"

14. On the failure of the Respondent to give reasons for his decision and not to make specific comment upon the Medical Reports Mr. Marshall, Q.C. for the Respondent referred me to another Hong Kong Court of Appeal case Chan Heung Mui & Anor. v. Director of Immigration Unreported being CA 168/1992. At p.18 Litton J.A. states :-

"(i) Good administration requires that when a Government authority resists an application for judicial review, it should play with all the cards face upwards on the table: see Sir John Donaldson MR in R. v. Lancashire County Council, ex parte Huddleston (1986) 2 AER 941 at 945g.

(ii) Here, the Deputy Director has simply made a bald assertion that no strong or powerful humanitarian grounds have been made out. That, says counsel, begs the question; if there were other considerations, such as, for instance, the fear of a great influx of immigrants if the policy was not tightly applied, these have not been stated by the Deputy Director; it must therefore be inferred that there are no such considerations which could justify the decision.

Attractive though these propositions may sound, in the skilful way in which they were put, I must reject them. It must always be borne in mind that it is for the Director and not for the courts to administer the scheme of immigration control under the Ordinance. If "irrationality" is the ground of challenge, the threshold is very high. It only applies to a decision which is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" :per Lord Diplock in CCSU v. Minister for the Civil Service (1985) AC 374 at 410G.

The expression "Wednesbury unreasonableness" or "irrationality" is used so often by lawyers that it may take on a life of its own, separated from its roots. It is worth recalling the genesis of this ground of attack. For it to succeed the court must be able to infer that the decision- maker must have made a mistake of law by, for instance, straying wholly outside the scope of the statute or taking into account totally irrelevant considerations: see Lord Diplock in CCSU at 410H.

Obviously, if the facts set up by the applicant in his challenge were such as to raise prima facie a case of irrationality, to the high degree indicated in CCSU v. Minister for the Civil Service (supra), then the authority concerned cannot hide behind a wall of silence. The difficulty facing the appellants in this case is that, in my judgment, they have not come within striking distance of setting up a case of "irrationality". The Director of Immigration has, unquestionably, a most difficult task to perform. The Government of Hong Kong is by any standards a "humane" government and, as a matter of common-sense, there must be many cases in Hong Kong where "mainland brides" have married Hong Kong permanent residents and have given birth to children in Hong Kong having the right of abode here. In all cases, reasons will be advanced for saying that the applicant will suffer hardship if repatriated and some will be more cogent than others. Should the Director, in every case, accept without question the assertions of the applicants concerning their family circumstances in their native villages? Is the Director to make inquiries in every instance into the kind of family support which the applicants might be able to expect back home if he or she were repatriated?

The Government stated policy, since 1980, is that all illegal immigrants should be returned unless there are considered to be strong or powerful humanitarian reasons for doing otherwise in individual cases. The exercise of discretion under section 13 is only made in exceptional cases. How wide this should be is a matter entirely for the judgment of the Director."

15. I do not think that there can be any doubt that an Applicant has a very high threshold to surmount before he is able to make out a case that the Director of Immigration has been Wednesbury unreasonable.

16. I will now consider shortly the facts of the present case.

17. The Respondent did indeed have background information available to him concerning this case. He had caused fairly extensive inquiries to be made.

18. The 4th Applicant had strokes in October and November 1989. After a period in Hospital he managed to lead an independent existence and attended periodically as an outpatient at the Kwong Wah Hospital.

19. During this period he managed to hold down a job. He only resigned from his employment a short time before the Determination which was made by the Respondent.

20. It is also evident that during this period he was not all of the time looked after by his wife. Also he managed to make a number of visits to China, presumably to see other members of his family there, and take one of his children with him.

21. There is nothing in the latest medical reports to indicate that there has been any dramatic deterioration in the 4th Applicant's medical condition in the recent past before the Respondent made his decision. Clearly it was open to him to balance the prognosis made by the Doctors against the factual background which was known to him.

22. I do not see how the Respondent could be regarded as being unreasonable when he came to the conclusion that the case was not wholly exceptional and such as to warrant his exercising his discretion under S.13.

23. I would also, with great respect agree with the observations of Litton J.A. above cited which make reference to the extremely difficult functions which have to be performed by the Director and the necessity for him to be mindful of the claims of other Applicants who seek permission to reside in Hong Kong and who make their applications pursuant to legal procedures which are laid down.

24. It is a highly invidious task to attempt to balance the amount of hardship in different cases. What is clear however is that the circumstances of the present case while undoubtedly very unfortunate fall short of the very exceptional cases where the Respondent may see fit to exercise his discretion. I am also satisfied that the scope for the intervention of the Courts to interfere with the exercise of this discretion is severely circumscribed. This is not such a case.

25. For the reasons I have given I dismiss this application. I make an Order Nisi that the Respondent is to have his costs and that the Applicants' costs will be taxed in accordance with The Legal Aid Regulations.