Ipsofactoj.com: International Cases [2004] Part 11 Case 8 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Director of Immigration

- vs -

Lau

CHIEF JUSTICE LI

MR. JUSTICE BOKHARY PJ

MR. JUSTICE CHAN PJ

MR. JUSTICE RIBEIRO PJ

SIR ANTHONY MASON NPJ

26 MARCH 2004


Judgment

Chief Justice Li

  1. I agree with the judgment of Sir Anthony Mason NPJ. The Court unanimously dismisses the appeal with costs, with an order for legal aid taxation of the respondent's costs.

    Mr. Justice Bokhary PJ

  2. I agree with the judgment of Sir Anthony Mason NPJ.

    Mr. Justice Chan PJ

  3. I agree with the judgment of Sir Anthony Mason NPJ.

    Mr. Justice Ribeiro PJ

  4. I agree with the judgment of Sir Anthony Mason NPJ.

    Sir Anthony Mason NPJ

    INTRODUCTION

  5. This is an appeal pursuant to leave granted by the Appeal Committee from a judgment of the Court of Appeal (Rogers VP, Woo JA and Sakhrani J) allowing the respondent's appeal from a judgment of the Court of First Instance (Hartmann J). Hartmann J dismissed the respondent's application for judicial review of decisions of the appellant, the Director of Immigration ("the Director"). The Director's decisions were

    1. to refuse the respondent permission to land in Hong Kong;

    2. to remove her from Hong Kong; and

    3. to detain her pending removal.

  6. The appeal raises important questions of constitutional and immigration law. In Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 ("Gurung"), this Court decided that when a non-permanent resident returns to Hong Kong during the currency of a previous permission to remain, he or she is entitled to be re-admitted by virtue of art.31 of the Basic Law (the freedom to travel) and that s.11(10) of the Immigration Ordinance, Cap. 115 ("the Ordinance") does not apply. The principal issue in the appeal is whether the same conclusion follows if an immigration officer concludes that the previous permission to remain and the status of non-permanent resident was obtained by fraud or deception. In such a case, does an immigration officer have power under s.11(1) of the Ordinance to refuse permission to enter Hong Kong, to remove the person from Hong Kong under s.18(1) of the Ordinance and to detain him under s.32 pending removal?

  7. If an immigration officer has such powers, other questions arise, including questions as to the burden and standard of proof and standards of review applicable in a challenge by way of judicial review to the exercise of these powers.

    THE FACTS

  8. On 23 December 1995 the respondent, a Chinese national, born on 23 July 1966, in Dalian City, Liaoning Province, was granted permission to land in Hong Kong under s.11(1) of the Ordinance and permission to remain until 23 December 1996 under s.11(2) of the Ordinance. She had a one-way Exit Permit issued to her on 21 November 1995 by the Bureau of Exit Entry Administration of the Public Security Bureau of the People's Republic of China.

  9. On 8 January 1996 the respondent applied for and obtained a Hong Kong identity card under the Registration of Persons Ordinance, Cap. 177 ("the ROP Ordinance"). She produced her one-way Permit in support of her application. She also applied for and received on 9 January 1996 a document of identity which she used on the many occasions she travelled to and from Hong Kong. This document was due to expire on 9 January 2003 but was renewed on 8 June 1998 because all its pages had been filled by stamping.

  10. The respondent's permission to stay in Hong Kong was extended from time to time. On 3 September 1999, she was given permission to land and remain in Hong Kong until 8 June 2005.

  11. On 6 February 1996 she was interviewed by an immigration officer. She was asked about the circumstances in which she applied for the one-way Permit. She stated that she applied as the wife of Leung Wai Ming, a Hong Kong permanent resident, whom she had married in the Mainland in April 1990.

  12. The respondent's account that she had married Leung Wai Ming in the Mainland in April 1990 and had come to Hong Kong to be with him was in conflict with her earlier statements and with travel records, as appears below.

  13. She first entered Hong Kong on 9 January 1993 when she was in transit to Bangladesh. She was then carrying a passport of the People's Republic of China. On arrival in Bangladesh she married Leung Wai Ming on 12 January 1993. She obtained a Bangladeshi passport in the name of Uasha Chakma, a woman ostensibly born in Bangladesh.

  14. On 16 January 1993 the respondent entered Hong Kong, using her Bangladeshi passport. On the basis that she was married to a Hong Kong permanent resident, she was permitted to remain in Hong Kong until 16 April 1993. She overstayed and was arrested in May 1993 when she went into hospital where she gave birth to a daughter, Tin Wai, on 23 May 1993. Leung Wai Ming denied he was the father.

  15. On 8 September 1993 the respondent, under caution, stated in an interview that, about late 1991, she commenced a relationship in Shenzen with Ng Kam Chuen, a Hong Kong permanent resident who was married. In or about August 1992 she discovered she was pregnant with Ng's child. As she did not wish to give birth to an illegitimate child in the Mainland, Ng arranged for her to fly to Bangladesh where she met his friend Leung Wai Ming who, for payment, entered into a sham marriage with her. The purpose was to reinforce her claim to be a citizen of Bangladesh which was supported by the Bangladeshi passport.

  16. Not only was this account inconsistent with her later account on 6 February 1996 that she had married Leung Wai Ming in China in April 1990, a check of his travel records revealed that he had not left Hong Kong between October 1989 and 16 May 1990.

  17. Further, the respondent, at her interview on 6 February 1996, acknowledged that she had not been in contact with Leung Wai Ming after her repatriation to the Mainland on 29 January 1995. She did not know his whereabouts. They were subsequently divorced. Indeed, it seems that they met only to obtain a divorce.

  18. In September 1996, the Director sought the assistance of the Ministry of Public Security in Beijing. The Chinese Bureau of Exit Entry Administration replied on 28 June 1999, confirming that the one-way Permit had been obtained by fraud. The Bureau asked the Director to annul her registration and repatriate her to the Mainland as soon as possible. Enclosed with the letter was a letter from the Public Security Bureau of Dalian City stating that a marriage certificate relating to the respondent and Leung Wai Ming was issued on 11 April 1992.

  19. It seems that the Director was aware that the Chinese Bureau of Exit Entry Administration had confirmed that the one-way Permit had been obtained by fraud when, on 3 September 1999, the respondent was given permission to land and remain in Hong Kong until 8 June 2005. Nothing turns on this circumstance.

  20. On 5 September 1999 the respondent departed from Hong Kong for the Mainland. The Immigration Department was unable to make contact with her.

  21. Subsequently when the respondent attempted to enter Hong Kong via Lo Wu on 4 October 1999, she was stopped by immigration officers. She was refused permission to land under s.11(1) of the Ordinance. She was informed that she would be removed to the Mainland under s.18 of the Ordinance. She was detained under s.32 pending removal.

  22. The decision to refuse permission to land in Hong Kong was taken by Mr. Lam Kin Yee, Senior Immigration Officer at Lo Wu Control Point, on the recommendation of Mr. Wong Lok Wah, an Immigration Officer, who had examined the respondent under s.4(1) of the Ordinance. The grounds of the decision were:

    1. there was a written confirmation from the Mainland authorities that the respondent's one-way Permit for her settlement in Hong Kong was obtained by fraudulent means in November 1995 and that her residence status in Hong Kong should be revoked;

    2. that her permission to stay in Hong Kong had expired on her departure from Hong Kong on 5 September 1999 pursuant to s.11(10); and

    3. that her permission to land and remain in Hong Kong as well as her identity card and the two documents of identity were vitiated by her fraudulently obtained one-way Permit on the strength of which she had entered Hong Kong for settlement.

  23. The identity of the officer who made the decisions to authorise the respondent's detention and her removal under s.18 is not entirely clear. That is immaterial because the two decisions were consequential upon the decision to refuse the respondent permission to land.

  24. The respondent commenced proceedings for judicial review of the decisions referred to in paras 21 and 22 on 6 October 1999. The next day Stock J granted leave to apply and the respondent was released after entering into a recognizance pursuant to s.36 of the Ordinance.

  25. The respondent also sought a review by the Chief Executive in Council under s.53 of the Ordinance. The Chief Executive in Council affirmed the decision to remove the respondent.

    THE JUDGMENT OF HARTMAN J

  26. Hartmann J delivered judgment on 29 June 2000. He applied s.11(10) of the Ordinance and held that the respondent's permission to remain in Hong Kong expired immediately after her departure. Hartmann J's judgment was delivered before this Court delivered judgment in Gurung, so he did not have the advantage of this Court's decision that, since the coming into operation of the Basic Law, s.11(10) does not apply to residents, whether permanent or non-permanent, who are exercising the right to travel.

  27. Hartmann J went on to hold that the respondent had to seek a new permission, when she attempted to return, as she enjoyed no subsisting right to reside in Hong Kong, and that the Director's exercise of discretion to refuse her permission was not Wednesbury unreasonable. The judge held also that the Director was under no obligation to proceed in accordance with the rules of natural justice to ensure a fair hearing. The applications to quash the order refusing permission to land and the removal order were dismissed with costs.

    THE COURT OF APPEAL

  28. The Court of Appeal held that the respondent should have been treated as a person who had been permitted to remain in Hong Kong and was therefore a non-permanent resident. The Court concluded that, following Gurung, s.11(10) did not apply and the procedure of s.11(6) or s.19 of the Ordinance should have been followed. The consequence was that the decisions could not stand. The appeal was allowed and orders were made quashing the decision under s.11 refusing permission to land, the decision authorising detention pending removal and the decision to remove the respondent from Hong Kong.

    THE ARGUMENTS OF THE PARTIES IN THIS APPEAL

  29. On the art.31 issue the Director contends:

    1. the freedom to travel under art.31 of the Basic Law is conferred on "Hong Kong residents" only, whether they be permanent or non-permanent residents;

    2. non-permanent residents are defined by art.24 of the Basic Law as persons who "are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region";

    3. the respondent was not so "qualified" because she obtained a one-way Permit by fraud, that Permit was the basis of her obtaining entry to Hong Kong and a limit on stay and that limit on stay was the basis of her obtaining an identity card;

    4. the consequence is that the respondent was not a non-permanent resident, that art.31 had no application and that ss 7, 11(10) and 18 of the Ordinance applied.

    Implicit in the Director's argument is the proposition that an identity card is not itself evidence that the holder has the status of a non-permanent resident. The respondent submits, however, that an identity card is prima facie evidence that the holder has the status of a non-permanent resident.

  30. The respondent's case is:

    1. that, in order to comply with the requirements of arts 35 and 39 of the Basic Law and art.14.1 of the International Covenant on Civil and Political Rights ("the ICCPR") as applied to Hong Kong by art.10 of the Hong Kong Bill of Rights Ordinance, Cap. 383, a person impeaching another person's resident status must prove his case to an appropriate standard before a court or tribunal amenable to judicial review which adjudicates on the facts and complies with the requirements of procedural fairness;

    2. that a Hong Kong identity card is prima facie evidence of the holder's status as a non-permanent resident;

    3. that the Director bears the onus of establishing unlawful entry and the invalidity of the permission to stay;

    4. that the Director must prove his case at least to what is called "the flexible civil standard", that is, "on the balance of probabilities having regard to the seriousness of the matters that have to be proved and the general assumption that a person has acted legally not illegally" (see R v Home Secretary, Ex parte Rahman [1998] QB 136 at 173C-D, per Hobhouse LJ;

    5. that the procedure under ss 4(1), 7, 11(1), 18 and 32 of the Ordinance was inapplicable in the present case; and

    6. that the Government and the Director should have acted under ss 11(6) and 19 which entail appropriate procedures whereby the respondent could challenge the decisions made.

    NON-PERMANENT RESIDENT STATUS

  31. Article 24 defines the non-permanent residents of the Hong Kong Special Administrative Region. They

    shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode.

    Although art.31 of the Basic Law confers on non-permanent residents certain rights and freedoms, including "freedom to travel and to enter or leave the Region", their status as non-permanent residents rests on their having qualifications prescribed by the laws of Hong Kong.

  32. For these qualifications it is necessary to turn to the ROP Ordinance and Regulations. Every person in Hong Kong is required to be registered under that Ordinance, unless exempted or excluded by the s.3(1). The respondent was not exempted or excluded. Application for registration is to be made in the manner prescribed by regulations made under s.7 (s.3(2)).

  33. Regulation 3(1) of the ROP Regulations requires every person who is not exempted or excluded to obtain an identity card. An applicant for registration or for an identity card is required to furnish detailed particulars, including

    (xi)

    any-

    (A)

    travel document bearing an endorsement to the effect that he is authorized under the Immigration Ordinance .... to remain in Hong Kong; or

    (B)

    document issued under that Ordinance authorizing him to remain in Hong Kong,

    held by him;

    (xia)

    (where the applicant does not have a right of abode in Hong Kong) the conditions of stay (including a limit of stay) imposed in relation to him under section 11 of the Immigration Ordinance ....

    The Regulation requires the applicant to "acknowledge the correctness of the particulars by signing" in the place provided in the form (reg.4(1)(b)).

  34. A person who, in furnishing particulars under reg.4, makes a statement or furnishes particulars which he knows is or are false in a material particular commits an offence punishable by fine or imprisonment for 2 years (reg.19(2C)). Where a registration officer believes on reasonable grounds

    1. that an identity card has been obtained as the result of the commission of an offence specified in reg.19(2C); or

    2. that a person is in possession of an identity card in respect of which an offence under reg.19(2C) has been committed

    he may declare the identity card to be invalid and order it to be surrendered (reg.19(3)).

  35. In this respect, reg.19(3) is significant. It provides for a declaration of invalidity of an identity card where its issue has been induced by fraudulent particulars. Until such a declaration is made, the card is valid and effective for all purposes.

  36. Registration under the ROP Ordinance imposes legal obligations in connection with the identity card. A registered person is required to use the names entered on the identity card and to furnish the number of the card to the satisfaction of a public officer requiring such number (s.5(1)).

    THE LEGAL SIGNIFICANCE OF AN IDENTITY CARD

  37. In the light of its very nature, the procedures under which it is brought into existence and the purposes which it serves, an identity card amounts to official recognition and confirmation that the holder is a resident of Hong Kong, has satisfied the qualifications for registration and, in the case of a non-permanent resident, that he has the status of a non-permanent resident of Hong Kong, subject to the holder having, at any given time, unexpired permission to remain in Hong Kong.

  38. It has to be recognised that an identity card is valid until declared invalid and that it is an official document which, subject to the qualification just mentioned, recognises and confirms that the holder is a resident of Hong Kong, thereby indicating that he has satisfied the qualifications for registration and, in the case of a non-permanent resident, that he has the status of a non-permanent resident of Hong Kong. The recognition of an identity card as such an official document is not inconsistent with the provisions of regs 21 and 22 of the ROP Regulations assuming that these provisions are capable of applying outside as well as within legal proceedings and proceedings before the Immigration Tribunal.

  39. The Director's case is that art.24 defines the class of non-permanent residents by reference to their qualifications to obtain Hong Kong identity cards not by reference to their holding such cards. There can be no argument about that. The point of the definition is to include in the class of non-permanent residents those who do not yet hold identity cards but are qualified to obtain them in accordance with the laws of Hong Kong. But it does not follow that the holding of a non-permanent identity card, subject to the holder having, at any given time, unexpired permission to remain in Hong Kong, is of no effect simply because facts of the kind referred to in reg.19(2C) and (3) exist or may exist. Article 31 links the status of a non-permanent resident to the laws of Hong Kong and, under those laws, the respondent was recognised as having the relevant qualifications until appropriate steps were taken under those laws to establish that she lacked those qualifications.

    THE ORDINANCE

  40. The Director's case is that s.7(1) applied to the respondent. The sub-section provides

    A person may not land in Hong Kong without the permission of an immigration officer or immigration assistant ....

    The sub-section sets out certain exceptions which have no application to the respondent. Although the respondent had, at the time of her re-entry into Hong Kong, an unexpired permission to remain in Hong Kong, the Director argues that this permission had expired earlier on her departure from Hong Kong, pursuant to the operation of s.11(10). Whether s.11(10) applied to the respondent depended upon her status as a non-permanent resident. Gurung decided that s.11(10) does not apply to such a resident with an unexpired permission to remain when the resident seeks to re-enter Hong Kong in the exercise of the freedom to travel under art.31 of the Basic Law.

  41. The question then is whether the respondent's status as a non-permanent resident could be determined on the procedure which was adopted by the Director, by means of examination under s.4(1), the application of ss 7(1), 11(10), 18 and detention pursuant to s.26. There are elements in this procedure which indicate a legislative intent that the procedure cannot apply to a case where the question in issue is whether a person, having an unexpired permission to remain in Hong Kong and claiming the status of a non-permanent resident supported by the holding of an identity card, no longer enjoys that status because, in the view of officers of the Department, the permission and the issue of the card were induced or affected by fraud or deception.

  42. In the Ordinance, there are strong indications of such a legislative intent. First, the provisions for examination under s.4(1)(a) and refusal of permission to land under s.11(1) prescribe no procedure which complies with the requirements of procedural fairness. There is nothing which requires an immigration officer to give notice to the individual, outlining the case against the individual and affording an opportunity to the individual to answer that case. The absence of provisions of this kind strongly suggests that the procedure was intended to apply only in simple, straightforward cases, not in important cases where an issue of resident status is involved. This impression is reinforced by s.27 which confers powers to detain a person being examined under s.4(1)(a) but limits the period of detention to a maximum of 48 hours, that is, for not more than 24 hours pending the examination and for not more than a further 24 hours pending a decision to give or refuse him permission to land. In cases where an issue of resident status is involved, as here, the issue will often be complex and require the making of inquiries and obtaining evidence from other jurisdictions. Resolution within a timeframe of 48 hours would often be practically impossible.

  43. Secondly, the procedure under ss 4(1)(a), 7(1), 11(10), 18 and 26 contrasts with the procedure prescribed by s.19 where an order for removal is made under that section. Section 19(5) requires the Director to cause written notice to be served as soon as practicable on the person against whom it is made informing him -

    1. of the ground on which the order is made; and

    2. that if he wishes to appeal he must do so by giving to an immigration officer or immigration assistant written notice of his grounds of appeal and the facts upon which he relies within 24 hours of receiving the notice of the order.

    An appeal may be brought to the Immigration Tribunal established under s.53F against a removal order under s.19 on the ground that the person

    had at the date when the removal order was made the permission of the Director of Immigration to remain in Hong Kong.

    The s.19 procedure not only provides safeguards which are absent in the procedure followed by the Director but it also provides for a determination of the relevant issue by a quasi-judicial tribunal on the facts.

  44. The Ordinance enables a decision refusing permission to land to be made under s.7(1) by an immigration officer and a decision under s.18 to be made by an immigration officer or chief immigration assistant. Although it is to be expected as a matter of good administration, difficult decisions, such as those taken in the present case, would be made by senior immigration officers, the point remains that the legislature provided for different procedures culminating in removal from Hong Kong. One procedure, culminating in a s.18 removal, which allows lower level decision-making is appropriate for simple, straightforward cases. The other, culminating in a s.19 removal, requires high level decision-making, with substantial safeguards, as is appropriate to the determination of cases involving a claim to status, whether it be permanent or non-permanent resident status.

  45. It follows, as a matter of interpretation of the Ordinance and the ROP Ordinance and Regulations, that the procedure adopted by the Director was not authorised by the Ordinance. It would be surprising if it were otherwise. Had the respondent not sought to exercise her constitutional freedom to travel under the Basic Law flowing from the non-permanent status she enjoyed by virtue of her permission to remain in Hong Kong and her identity card, the Director would plainly not have been able to resort to ss 4(1)(a), 11 and 18. He would have been compelled to resort to s.19 with its attendant safeguards.

  46. In the circumstances, the actions of the Director amounted to an interference with the exercise by the respondent of her constitutional freedom to travel, on the basis of an administrative decision that her permission to remain in Hong Kong had been procured by fraud, a decision taken under a procedure which did not incorporate the safeguards appropriate to the determination of the important issue of status under the Basic Law. In the absence of a determination of that issue according to the appropriate procedure, preventing the respondent from entering Hong Kong was an interference with her constitutional freedom to travel under the Basic Law.

    CONCLUSION

  47. For these reasons the appeal should be dismissed with costs, with an order for legal aid taxation of the respondent's costs.


Cases

Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480; R v Home Secretary, Ex parte Rahman [1998] QB 136

Legislations

Basic Law: Art.24, Art.31

Immigration Ordinance, Cap. 115: s.4, s.7, s.11, s.18, s.19, s.26

Representations

Mr. David Pannick, QC and Mr. William Marshall, SC (instructed by the Department of Justice) for the appellant

Mr. Philip Dykes, SC and Mr. Hectar Pun (instructed by Messrs Yip & Partners and assigned by the Legal Aid Department) for the respondent


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