Case Detail

HCAL001579A/2000

HCAL 1579/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO. 1579 OF 2000

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BETWEEN
	GURUNG BHAKTA BAHADUR	Applicant

	AND

	DIRECTOR OF IMMIGRATION	1st Respondent
	CHIEF EXECUTIVE IN COUNCIL	2nd Respondent

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Coram: Hon Hartmann J in Court

Date of Hearing: 13 May 2002

Date of Judgment: 13 May 2002

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J U D G M E N T

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1. This application for judicial review has, during the course of argument, raised a novel question, namely, whether the Director of Immigration is, in respect of what I will call dependancy visa applications, operating a policy which is an enlargement upon, and thereby a distortion of, the policy originally constructed by the Chief Executive in Council.

The history

2. In order to understand how this issue has fallen for determination, it is necessary to look to the history of this matter. The applicant is a citizen of Nepal, having been born in that country in February 1967. He is now, therefore, in his mid-30s. In 1986 the applicant married a fellow Nepalese national, a woman by the name of Rana Dhama Khumari. The marriage took place in Nepal. Two children have been born of that union.

3. Although a Nepalese national, the applicant's wife had been born in Hong Kong and in 1998 she came to Hong Kong (in or about March of that year) in order to take up permanent residence here. She was, through her birth right, duly granted that status in July of that same year.

4. When the wife came to Hong Kong, she left her husband and her children in Nepal. The evidence indicates that the husband, at that time, was working in Nepal, seemingly as a driver. However, in early August 1998, less than a month after the applicant's wife had been granted her permanent resident status in Hong Kong, the applicant came to Hong Kong to join her. A few days later - on or about 7 August 1998 - the applicant applied to remain in Hong Kong as a dependant of his wife, applying to the Director of Immigration for the issue of what is commonly called a dependancy visa.

5. A year later, in July 1999, the application was refused by the Director. In a letter, dated 13 July 1999, addressed to the applicant, the following was said.

"Under the existing Immigration policy, a person may be allowed to come to Hong Kong for residence to join his/her spouse already resident here as his/her dependant provided inter alia that his/her spouse is able to support and provide accommodation for him/her. After careful consideration of your application, I regret to inform you that your application is refused because we are not satisfied that, (a) Rana Dhama Khumari is financially capable to support your living and provide suitable accommodation for you in Hong Kong and, (b) you are a genuine dependant of Rana Dhama Khumari."

6. Aggrieved by that decision, the applicant lodged an objection in terms of section 53 of the Immigration Ordinance, Cap.115. In terms of subsection (3) of that section the objection was to be considered by the Chief Executive in Council.

The suggestion of policy made by the Chief Executive in Council

7. So that relevant information could be placed before the Chief Executive in Council, a document bearing the heading "Comments on the Objection by Mr Gurung Bhakta Bahadur" was prepared by officers of the Immigration Department. To ensure procedural fairness, a copy of that document was sent to the applicant under cover of a letter bearing the letterhead of the Government Secretariat dated 18 February 2000. The letter said the following:

"I refer to your letter of 17 July 1999 to the Chief Secretary for Administration lodging an objection to the decision of the Director of Immigration to refuse your application for dependant visa in Hong Kong. Attached is the Director's response to the objection. Please let me have your comments, in writing, if any, on or before 18 March 2000. If I do not receive any reply from you by the prescribed deadline, it will be assumed that you do not wish to comment. You are to note that fresh points, which do not arise out of the Director's response, should not be raised in your reply."

8. The applicant chose to make various comments and these, in due course, were placed before the Chief Executive in Council. It is pertinent, in my view, to take note of the fact that the document placed before the applicant for comment, and which went before the Chief Executive in Council, bore a heading to the effect that it contained 'comments' made by the Director. I find nothing in it to suggest that it is to be treated as anything other than such 'comments' made in reply to an objection. Certainly, it is not to be given the sanctity of a statute nor, in my view, of a definitive statement of policy.

9. In that document the comments of the Director fell under a number of convenient headings. One of those headings was entitled "Immigration Policy" and under it the following was written:

"Under existing policy an application from a spouse to join a spouse for residence in Hong Kong, may be approved provided that:
(a) there is reasonable proof of a genuine husband and wife relationship;
(b) there is no security objection and no known record of serious crime;
(c) there is no likelihood of the applicant becoming a burden to Hong Kong;
(d) the spouse is a bona fide resident and,
(e) the spouse is able to support her spouse and provide accommodation."

10. These five summarised points have, in the course of argument by Mr Pun, on behalf of the applicant, become transformed into five pillars of policy which state in exhaustive terms the policy set by the Government, that is, by the Chief Executive in Council. Anything outside of these five pillars is therefore an enlargement upon the policy, and, as I have said at the beginning of this judgment, thereby a distortion of it; a distortion which is impermissible in law.

11. The document, however, does not end there, I say that because, having summarised the points, the Director then goes on to make a number of comments concerning the objection by the applicant. Under the heading of "Comments", he has said inter alia:

(a) under the current policy governing entry of dependants, the sponsor has to prove, to the satisfaction of the Director of Immigration, that he/she is financially capable of supporting the living of, and providing accommodation for his/her dependants, without relying on the financial support of other persons or recourse to public funds. As Ms Rana's income is only $270 per day, the Director is not satisfied that she is financially capable of supporting the living of Mr Gurung [the applicant] to an acceptable standard, and of providing him with suitable accommodation in Hong Kong. There is no safety net should Ms Rana fall sick or become unemployed, or should her other family members stop supporting their two young children in Nepal, as claimed.
(b) according to the information sheet, dated 10 June 1999, furnished by Ms Rana, she was not required to remit moneys to support the family in Nepal. In another information sheet, furnished by Mr Gurung on the same day, he stated he was a driver in Nepal before coming to Hong Kong. It is rather unusual that Mr Gurung, aged 32, would give up his employment in Nepal and depend on his wife, thereby adding to the financial burden of the family. The Director is, therefore, not satisfied that Mr Gurung intends to be genuinely dependent on Ms Rana."

The following comments are made under (c):

"Although Mr Gurung's elder brother in Brunei has vouched to support his children in Nepal financially, it is not reasonable for Mr Gurung to deprive his children of parental care and to stay in Hong Kong as his wife's dependant. Moreover, he had indicated in his letter to the Director on 30 June 1999 that he intended to earn some money for his family."

The comments continue:

"The Director is under a statutory duty to regulate the lawful entry of persons into Hong Kong, either on a temporary or a permanent basis. Unless stringent criteria, in allowing aliens to settle in Hong Kong, are adopted, Hong Kong will be burdened by economic migrants who may impose a burden on the residents and taxpayers of Hong Kong in terms of public and social services or the diminution of their employment opportunities."

12. Those comments, in my view, quite clearly incorporate into the document what I will call the 'dependency element' of the policy, namely, that what must be shown by an applicant is that he or she is and intends to be a dependant. In my judgment, it is artificial to try and isolate the summary points in that document from the comments that appear elsewhere in the document in order to try and prevent those summary points being read in the context of dependency. In short, a reading of the document as a whole makes it plain that genuine dependency is an element of the policy.

13. Mr Pun has accepted that he has some difficulty in showing that there has been any detailed policy set down by the Chief Executive in Council and that, in this particular instance at least, the Director has enlarged upon or added a gloss to any such policy. However, Mr Pun has asked: "Why else, in a document addressed directly to the Chief Executive in Council, would the policy be so summarised unless it was understood by all parties that that was the policy." With respect, I have difficulty in understanding the logic. Nothing is suggested in the document, as I have already said, to the effect that the summarised points accurately state the policy in toto. Nor can any implication be drawn from the document that it describes a policy previously constructed by the Chief Executive himself.

14. Because the argument took this separate course, it was necessary to adjourn the matter and, in the interim period, an affirmation has been supplied to the court by an officer of the Immigration Department; he is Acting Assistant Principal Immigration Officer, Mr Chan Shu-shun. Mr Chan speaks of the origins of the power vested in the Director of Immigration and, in doing so, canvasses a number of legal issues. Mr Pun, on behalf of the applicant, has asked me to ignore any statements of law. Obviously, I appreciate that the law is my jurisdiction and not Mr Chan's.

15. It should be said that Mr Pun, in advancing his argument on behalf of the applicant, objected to Mr Chan's affirmation being placed into evidence unless he, on behalf of the applicant, was granted two things, or, at least, one of them: first, discovery and, second, the right to cross-examine Mr Chan.

16. Mr Pun sought discovery because, in his view, it was only if all relevant documents concerning the history of this matter could be disclosed, that it would be known whether or not the Chief Executive in Council had or had not at any time laid down set policies. Failing that, it would be necessary to cross-examine Mr Chan as to what he knew of the matter. Having heard submissions, I rejected both applications. In my view, the affirmation of Mr Chan quite fully set out what is known at this time, if not directly, then at least by clear implication.

17. In my judgment, Mr Pun, in reality, was hoping to embark on a fishing expedition. Mr Pun was essentially seeking this court to order discovery in the hope that something advantageous to his client might emerge from that disclosure. The authorities make it clear, that in judicial review matters, discovery and cross-examination, while both may be ordered, are only to be ordered sparingly and when the interests of the just disposal of the case dictate. I was satisfied that the just disposal of this case did not dictate that either order should be made. I, therefore, allowed Mr Marshall, on behalf of the two respondents, to file the affirmation of Mr Chan without any corollary orders of the sort that Mr Pun had advocated.

18. I turn now to the affirmation of Mr Chan. I do not intend to go into it in great detail. Suffice to say that Mr Chan referred to section 51 of the ordinance. Section 51 says that public officers shall be subject to the directions of the Chief Executive and, in this regard, subsection (1) reads: "The Chief Executive may give such directions as he thinks fit (either generally or in any particular case) with respect to the exercise or performance by any public officer, not being a judge or district judge or a magistrate, of any powers, functions or duties under this ordinance." Mr Pun does not seek to dispute the accuracy of Mr Chan's affirmation when Mr Chan says that section 51 has not been used by the Chief Executive in Council (or the Governor In Council, prior to the change of sovereignty) to give any detailed directions to the Director concerning the manner in which policy under the Immigration Ordinance is to be exercised. However, Mr Pun has argued that there is nothing else in the affirmation which makes it clear that the Chief Executive in Council has not simply, in terms of the powers granted to him under the Basic Law, given directions to the Director as to how he is to exercise policy under the ordinance.

19. It is, however, patent from reading the affirmation as a whole, that Mr Chan has not been able to find any such directions, that is, directions, whether under section 51, or otherwise. In particular, Mr Chan says the following in paragraph 12:

"It is to be noted that although immigration is a policy-driven area, the statutory provisions do not refer to policy at all and that there are no requirements of the statutory framework, that policy, whether described as being the policy of the Chief Executive or of the Director of Immigration, be followed for a decision to be lawful in terms of the supervisory jurisdiction."

He continues:

"In fact, the policy of the Director is the policy of the HKSAR Government and of the Chief Executive. The Director applies government policy and his officers apply policy, that is, the Director's policy and the government's policy. Much day to day policy has been in existence for a very long time and it may not now be possible to refer to its specific genesis or adoption by the government and the Director in consultation with each other."

He then continues by saying:

"In respect of new policies it has always been the practice of the Director to consult with the Chief Executive, or the Chief Executive in Council, involving also the government policy secretary for Immigration matters, who is the Secretary for Security."

20. In simple terms, what is being said is that the Director, having been given the power under the Ordinance to direct policy, has nevertheless, in practice, consulted with policy secretaries of government and, where necessary, the Chief Executive or the Chief Executive in Council, in the process of constructing such policies. Mr Chan has continued by saying:

"My researches do not record any conflict between Director and government over the content or meaning of Immigration policy to be applied to Immigration decisions, but it is theoretically possible for such a conflict to arise. Its resolution, if it arises, is immediately assured by the fact that the Director acknowledges that he must accept and apply the policy of the government."

21. Mr Chan is saying here that he has investigated the matter and found no evidence of any policies constructed by the Chief Executive, either alone or in Council, which have raised queries, that is, conflict, with the wishes of the Director.

22. As I say, by implication I am satisfied that there is no evidence that the Chief Executive, either alone or in Council, has formulated specific detailed policies concerning the entry of persons into Hong Kong, by way of dependency and/or work and/or otherwise, and certainly there is nothing before me - and this is crucial to the matter - which gives any indication that the Director has acted contrary to any directions of the Chief Executive. Indeed, the entire thrust of Mr Chan's affirmation is to the effect that the Ordinance provides the statutory machinery and that it has always been for the Director to form and to administer policies, as he sees fit, in terms of that statutory framework.

23. Obviously, the Director will consult with those persons who he believes should be consulted in respect of policy, and where important changes to policy take place, he will advise and, in so far as is necessary, consult with the Chief Executive, either alone or in Council. However, the drawing up of policy has been, and remains, essentially that of the Director. It is, therefore, 'Government policy' because the Director is an arm of the Executive and, as such, represents the Government.

24. In my judgment, therefore, by way of summary, there is nothing before me to suggest that the Director has in any way enlarged, placed a gloss upon, or distorted any policy directed to him by the Chief Executive in Council, nor, in the document to which earlier reference has been made, is there anything to suggest, by implication or otherwise, that what is written there inscribes in letters of stone the already agreed parameters of a policy.

25. Mr Pun, in arguing his matter, referred to Hansard, more particularly, to certain statements made by the Attorney-General when proposing to the Legislative Council, the Immigration Bill of 1971. In that regard, inter alia, the Attorney-General said the following:

"The explanatory memorandum, sir, uses the term 'Hong Kong belongers'. The Bill, of course, speaks of and deals with immigrants. For the purposes of the proposed code of immigration, everybody is either one or the other; the 'belonger' can come into Hong Kong when he wants to, and, once in, he may stay here as long as her wishes. This, sir, is as it has always been. The only difference is that the class of 'belonger' has been enlarged. In addition to persons born in Hong Kong, it will include persons who, here in Hong Kong, have become naturalised British subjects, and it will also include the wives and children of 'belongers'".

The Attorney-General continued by saying:

"This power to refuse entry, sir, is not exercised arbitrarily, at the whim of the Immigration officer on duty, nor even according to policies which may seem good to the Director of Immigration himself. The immigration policies of Hong Kong are determined by the Governor In Council and, indeed, the present ordinance recognises this by requiring the Director and his staff to comply with all directives which the Governor may issue on this subject. But as I have earlier said, history shows that no actual directives, given in terms of section 51 of the ordinance, have ever been given."

26. As Mr Marshall quite correctly says, the law has moved on some way since these Hansard comments. What must be remembered is that immigration problems have risen to such an extent that policy and operation of policy has now been centred in the hands of the Director.

27. Mr Pun has accepted that his challenge as to the lawfulness of the Director's operation of policy is a bold one. As I have already said, I am satisfied that, as bold as it is, it falls short. Our courts have long accepted that the Director is entitled to make policy and has been given the power to do so, not only by reason of his position in government but also in terms of the Ordinance.

28. That being so, the argument that the Director may, in this case, have wrongfully applied a policy imposed upon him by the Chief Executive, falls away. What one must therefore look to is the nature of the policy which is applied by the Director in regard to the application which is now challenged.

The Director's policy

29. The Director's policy in respect of dependency applications has been considered by this court on scores of occasions. Mr Marshall, during the course of submissions, very fully set out a history of various decisions made by the Courts of First Instance and by the Court of Appeal. There is no purpose in me, in this judgment, undertaking a full historical review of the matter. Suffice to say, I am satisfied that the Director has, to express the matter plainly, been authorised by our lawmakers to formulate policies governing immigration matters. It is for him to formulate those policies and to operate them within the framework of the Ordinance.

30. What then is the policy concerning dependancy visas? Let me start with the oft-quoted preamble that Hong Kong is a very small place with a high population density. Indeed, the population density is one of the highest in the world. As a result, the policy of the Director has, with the blessing of the other arms of government, been for many years one of strict immigration control. It is the government's oft-stated view that without these strict controls, the strain on our already crowded facilities may well become intolerable. Our courts have on many occasions recognised this policy of strict control; a policy which is dictated by Hong Kong's unique geographical, social, historical and economic circumstances.

31. As I have said on previous occasions, our courts have recognised that Hong Kong's administrative authorities have acted lawfully in determining that they are not in a position to be as generous in their immigration policies as other jurisdictions may perhaps be. To this I would add the footnote that regularly before this court reference is made to English immigration decisions. Those decisions may, of course, have direct relevance to matters to be decided but it must be remembered that the immigration policies presently administered by the authorities of the United Kingdom are very different from those administered by the authorities in Hong Kong. Different legal and social dynamics apply.

32. Although managing a restricted policy, the Director has formulated a number of policies which allow people to come to Hong Kong and to take up residence here. One of those policies has been described by me in an earlier judgment in the following terms. If, after due investigation, the Director concludes that an applicant wishes to reside in Hong Kong as a genuine dependant of a relative who has sponsored that applicant, then a dependancy visa will be granted; that dependancy visa will be granted without restrictions as to employment. The reasoning is simple. If an applicant is coming here as a genuine dependant then he or she does not come here looking to take up employment and there is, therefore, no need to place a restriction on that person's residence.

33. In previous judgments I have emphasised that the Director must be sure that his policy is not being undermined, and in this regard, in an earlier judgment of Bhupendra Pun v the Director of Immigration, HCAL1541 of 2001, I said the following (on page 5):

"Of course, the Director has to ensure that this particular policy does not undermine a separate policy administered by him; namely, the policy of granting people employment visas. If persons state that they wish to come here as dependants but are found to be here, in reality, seeking jobs, then they must apply to come here in terms of the Director's policy concerning employment. They cannot, as it were, obtain an employment visa 'via the backdoor'. The Director expresses it essentially in the following manner. If the primary purpose - or a principal purpose - of applying for a dependant visa is not only to be with family but to work in Hong Kong, then the person seeking to come here as a dependant does not fall under the policy."

I continued in that judgment - and I think it is pertinent to repeat it here - by saying:

"The Director recognises that in almost all cases, when a person seeks to join a member of family in Hong Kong, one of the principal reasons is family reunion. The Director sympathises with this; it is natural for families to wish to be together. But the Director has not formulated a policy of family reunion. He has formulated a policy in terms of which a family member may come to live here to occupy a natural niche in the setting of the family as a dependant. Dependency is therefore the key issue. That is the founding basis of any application."

34. My comments made in that earlier case have, I believe, been affirmed clearly in an affirmation of Mr Ho Kam-ping, another Assistant Principal Immigration Officer of the Immigration Department. That affirmation, made in November of 2000, sets out the policies relating to dependancy visas. It says:

"The government's policy on entry of aliens may allow foreigners to join relatives in Hong Kong as dependants in appropriate cases."

It then goes on to say:

"If the primary purpose, or a principal purpose of the person applying for a dependant visa, as found by the Director, after looking at all the circumstances of the applicant, his or her sponsor and close family members, whether in Hong Kong or overseas, is to work in Hong Kong rather than occupying a natural niche in a setting of his family, the application will not be granted."

The affirmation continues:

"There is also a requirement that a sponsor must be able, out of his or her own resources, to house and maintain the applicant. It derives from the need to avoid imposing burdens on the residents and taxpayers of the Hong Kong Special Administrative Region. If, in admitting persons with no claim upon the HKSAR for residence, there is a real risk in the short or medium term that their residence will result in general or particular recourse to public and social services, including medical services, their application is unlikely to be approved. This criterion assumes tangible form in the rule, that where there is an applicant and a sponsor, the sponsor must show that he or she is capable of supporting their own living and existing commitments in Hong Kong or overseas, and that of the proposed dependant, to a required acceptable living standard. As is appropriate for a dependency, possible earnings of the dependant are not included in this calculation."

35. Mr Pun has criticised as 'Wednesbury' unreasonable the decision not to recognise in this case that it was not only the applicant's wife who was putting forward financial statements of ability but also another member of the family, one living in Brunei. But it is part of the Director's policy that he will look only to the means of the sponsor. That may be criticised on policy grounds but it cannot be said that it is an irrational or perverse decision. As such, it is, in my view, a lawful part of the policy.

36. The policy of the Director, although often under attack in this court, is, of course, founded on humanitarian principles. It is a policy that allows a family member, who is genuinely dependent for his or her day to day needs on another member of that family, to reside here with that member. That required relationship of dependency perhaps explains why the policy demands that family members who act as sponsors must be able, out of their own resources, to care for and to support the person seeking to come here as a dependant. This is done to ensure that the sponsor himself or herself has full capability.

37. The policy further demands that the sponsor demonstrates an ability to provide financial support to the dependant to the required standard. By required standard, I mean a standard of living which is acceptable to the Director. The test, as Mr Ho has said in his affirmation, is set at the 'required acceptable living standard'. This has been explained by saying that only circumstances which demonstrate that the sponsor, and the dependant together, can live well above subsistence levels, will be acceptable.

38. That is not to say, of course, that an acceptable living standard is to be judged by some form of slide-rule calculation in direct reference to tables setting out, from time to time, subsistence standards of living in Hong Kong or elsewhere. As I have said, in the earlier judgment to which I have made reference:

"What is or is not an acceptable living standard is not to be decided by the applicant or by that applicant's sponsor. It is a matter for objective assessment by the Director employing the experience and knowledge of living in Hong Kong possessed by himself and his authorised officers."

I continued in that judgment by saying:

"Many applicants come from countries where the standard of living, regrettably, is low. A menial lifestyle, devoid of luxuries - what I would call a subsistence lifestyle - is therefore acceptable, at least until the persons seeking to come to Hong Kong can improve their economic lot here. But what is acceptable to applicants - or indeed sponsors - does not have to be acceptable to the Director. The Director has made it clear that a sponsor must demonstrate that he or she can maintain a dependant well above subsistence levels of living. As I have said, it is a matter of objective assessment, taking all factors into account; an objective assessment based upon experience and knowledge of living in Hong Kong. A knowledge, for example, of the pressures placed upon families when a sponsor is unemployed, or how much, in truth and reality, it costs to educate people here."

39. I continued in that judgment by saying that our courts have accepted that this is a rational aspect of the policy. In that regard I made reference to the dicta of Stock J (as he then was) in Santosh Thewe and Another v Director of Immigration [2000] 1 HKLRD 717:

"It is suggested that a requirement that a standard of living well above subsistence level should be shown is irrational and an unreasonable fetter on the discretion of the Director of Immigration. I disagree. To say that an immigrant, asking to be allowed in as a dependant, must show a reasonable standard of living within the context of that dependency, cannot, in my judgment, be said to be unreasonable."

40. This then, broadly, is the policy of the Director; one which is enforced by his officers. It is, quite properly, one which must be enforced and operated rationally. For example, the Director cannot simply 'move the goalposts' as and when it suits him.

41. During the course of submissions, a good deal of argument centred on the degree to which a policy, once stated, is to be supervised by the courts. In this regard, Mr Pun, for example, laid special emphasis on R v Secretary of State for the Home Department ex parte Urmaza (unreported) The Times, 23 July 1996, a judgment by Sedley J in which he laid down what he considered to be the modern approach concerning the courts' supervisory jurisdiction over departmental policy, whether published or not. In that regard, inter alia, he said:

"The legal principle of consistency in the exercise of public law powers creates a presumption that, in the ordinary way, an administrator, through his officials, will follow his own policy. This presumption corresponds with the practical purpose of any such policy; namely, to secure consistency of approach."

42. As a general statement, that appears to me to be logical. In the present instance, however, there is no suggestion that the Director has departed from his policy. As both counsel acknowledged, the affirmation of Mr Ho is worded almost word for word as many affirmations placed before this court in similar matters.

43. The applicant, of course, asserts that he has demonstrated that his circumstances fall well within the Director's policy. He submits that the Director has irrationally and perversely rejected his application. How then do I approach the matter?

44. First, as I have said previously - but it needs to be said again today - it is, I believe, beyond argument that in Hong Kong our courts, whatever the different situation may be in the United Kingdom, continue to adopt the principles set out in Schmidt v The Secretary of State for Home Affairs [1969] 2 Ch 149. In this regard, I am particularly indebted to my brother, Seagroatt J, for his study of the history of the Hong Kong case law in Chitramaya Limbu and Another v The Director of Immigration and Another HCAL51 of 2000. In that case, he referred to Schmidt as being seminal in this area of public law and said the following:

"A distinction was drawn between the position of public officers exercising a power whereby citizens could be deprived of liberty or property, and in general, of an administrative body which affects or may affect a person's right or interest or legitimate expectation, and that of aliens, who have no right to be in a foreign territory other than by way of licence."

45. He then cited the dicta of Lord Denning MR at page 171 of Schmidt in which, in speaking of a foreign alien, the Master of the Rolls said that he or she has -

"No right to enter this country except by leave, and if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time."

Lord Denning went on:

"a foreign alien has no rights, and I would add, no legitimate expectation of being allowed to stay. He can be refused without reasons given and without a hearing. In point of practice, however, I am glad to say that the Home Secretary does not act arbitrarily; he is always ready to consider any representations that are put before him."

46. In this regard, I refer again to the affirmation of Mr Ho in which he says, in paragraph 4:

"However, without derogating or detracting from this wide discretion unfettered by rules in deciding whether to grant a request to land or extend stay, the Director and his authorised officers do not act arbitrarily or irrationally, they will consider the merits of each application with reference to the government's policies and, in particular, the strict policy of immigration control. They will also act fairly, in accordance with procedures which are practical, given the high volume of applications for entry and remaining, which have to be dealt with each year."

47. Whatever the present state of law in the United Kingdom, Seagroatt J, on a consideration of the Hong Kong authorities, came to the conclusion that in Hong Kong the principles in Schmidt remain good law. The reason is clear; it is founded on Hong Kong's unique circumstances in respect of immigration matters; circumstances which are as relevant today as they were when the Director's policies - and I am satisfied that they are his policies and not those of the Chief Executive in Council - were first formulated. What may emerge in the area of public law concerning immigration in other jurisdictions must be given due consideration but it must be borne in mind that those principles will have emanated from social, political and legal circumstances relevant to those other jurisdictions and not perhaps so relevant to Hong Kong.

48. As to the manner in which the courts can look at the decisions made by the Director of Immigration, in Ita Bahadur Limbu v Director of Immigration HCAL 133 of 1999, Stock J (as he then was) comprehensively summarised the approach of our courts when challenges of the kind now before this court are mounted. His dicta has been adopted, as the definitive statement on the matter by other judges of the Court of First Instance. The dicta has been repeated on many occasions. But for the benefit of the applicant in this case I think it must be repeated:

"The applicant has no right in law to remain in Hong Kong as a resident, and the decision is one within the discretion of the Director. He has a policy, however, whereby those who are truly dependants of family sponsors in Hong Kong may be permitted to remain. The legislature has entrusted to the Director a discretionary power to grant permission to reside in individuals who, in the first instance, have no right to reside here, and that discretion is a very wide one; it must not be exercised in bad faith, or arbitrarily, perversely, and the policy which the Director has adopted is one which must not be exercised without considering the circumstances of each individual case. To that extent the courts will review the exercise of the discretion. But the courts are concerned with legality and not with merits. Where the determination of facts are left to the Director, and the facts sweep across a range from 'the obvious to the debatable to the just conceivable' it is the duty of the court to leave the decision of that fact to the public body, save in a case where it is obvious that the public body is acting perversely."

49. Put plainly, it is not enough for the applicant in this matter, who has no legitimate expectation of being entitled to remain in Hong Kong, to advance matters which support his case and to say: "They appear to be reasonable and, therefore, you have no right to refuse them." The applicant must go further. The applicant must show that the decision of the Director, in light of what has been placed before him, is not debatable or even just conceivable, but rather, has gone into that far realm of perversity which is an affront to the common sense of reasonable decision-makers. That, as I have said on numerous occasions, presents any applicant with a daunting task.

Was the Director unreasonable in this consideration of the applicant's application?

50. I have in this judgment said that the policy operated by the Director in respect of dependancy visas, is not, in my judgment, in any way a distortion of the government's policy. I have set out, broadly, the terms of that policy and I have set out the manner in which our courts consider the process by which the Director has come to his decisions concerning that policy.

51. This brings me to the applicant's own application. And I confess, on reading the matter in general, I cannot find anything which suggests that the Director or his officers have acted irrationally in the sense that they have either stepped outside the terms of their own policy or acted with such perversity that it is an affront to right, reasonable thinking people.

52. The first reason for rejection was, of course, the fact that the Director was not satisfied that the sponsor, the wife, was able to meet the financial criteria set down under the policy. This matter has been examined at length on the papers. The fact is that the Director looked at the detail himself in considerable detail; he weighed it in the balance and came to the conclusion that there was simply no safety net and that an acceptable level of financial security was not demonstrated. I do not intend to go into a long debate on the facts of the matter, suffice to say that I can find nothing there which suggests that the Director acted in any way unreasonably.

53. As to the issue that the applicant did not meet the policy considerations because he was unable to satisfy the Director that he was here as a genuine dependant, again, it seems to me, that the Director was able, using his experience, to look at all matters in the round concerning this particular applicant, and that is what he did.

54. It may well be that the applicant had a primary purpose of coming to Hong Kong to be with his wife. As I have said, the Director accepts that family reunion means recognition of an emotional bond of dependency by one family member upon another. But as I have earlier said, the Director is not managing a policy of family reunion; he is managing a policy of dependency, a far stricter policy, and the fact that there is some emotional dependency by one spouse upon another - while obviously that will be taken into account, and will be acknowledged as being a primary reason for wishing to settle here, the Director is not constrained in his policy to looking at one single reason; he can look, where necessary, to any number of primary reasons. To suggest otherwise would be artificial. History has shown that, when emigrating, many people come, in the initial instance at least, to family members in the new country and are dependent upon them but are dependent upon them solely to enable them to have a firm base upon which they can then strike out on their own.

55. All the facts of this case indicated to the Director, and, I think, quite rationally so, that the applicant in this matter intended to work as and when he could. Accordingly, a primary purpose of his arriving here, having worked in Nepal already, and being a man of working age without any disability, was himself to take up employment. I confess, that looking at all the circumstances in the round, I do not see how the Director's decision can be criticised as being irrational. I would go so far as to say that - by inference at least - it appears to be an obviously rational decision.

56. In the circumstances, I can find nothing unreasonable in the public law sense in the decisions made by the Director nor the decisions made by the Chief Executive in Council. I am satisfied that the rejections were lawful in the sense that they were not made under any misapprehension as to law or as to the correct policy to be applied. That being the case, the application must be dismissed.

	(M.J. Hartmann)
	Judge of the Court of First Instance of the High Court

Representation:

Mr Hectar Pun, instructed by Joseph C T Lee & Co., for the Applicant

Mr William Marshall, SC, leading Mr Casper Chu, GC, instructed by the Department of Justice for the 1st and 2nd Respondents

HCAL 1579/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO. 1579 OF 2000

____________

BETWEEN
	GURUNG BHAKTA BAHADUR	Applicant

	AND

	DIRECTOR OF IMMIGRATION	1st Respondent
	CHIEF EXECUTIVE IN COUNCIL	2nd Respondent

____________

Coram: Hon Hartmann J in Chambers

Date of Hearing: 11 January 2001

Date of Handing Down Judgment: 2 February 2001

_______________

J U D G M E N T

_______________

Introduction

1. On 21 July 2000, the Applicant obtained leave ex parte to bring judicial review proceedings against both the Director of Immigration ('the Director') and the Chief Executive in Council. In those proceedings the Applicant sought to quash a decision of the Director refusing to grant him permission to remain in Hong Kong as a dependent of his wife. The Applicant further sought to quash a decision of the Chief Executive in terms of which the Chief Executive confirmed the Director's decision despite an objection made by the Applicant pursuant to section 53 of the Immigration Ordinance.

2. On 30 November 2000, the Respondents issued proceedings by way of summons seeking to set aside the granting of leave in so far as it related to the 2nd Respondent; that is, the Chief Executive. The relief was sought on the basis that section 64(3) of the Interpretation and General Clauses Ordinance Chapter 1 ('the Interpretation Ordinance') bars a person who has elected to appeal or submit an objection to the Chief Executive from thereafter seeking to judicially review the Chief Executive's decision in the matter.

3. On 10 January 2001, a further summons was issued by the Respondents. This second summons sought to set aside the granting of leave in so far as it related to the 1st Respondent; that is, the Director. The relief sought also flowed from section 64(3) of the Interpretation Ordinance, the contention being that, having elected to lodge an objection to the Director's decision with the Chief Executive, the Applicant was now barred in terms of section 64(3) from applying also to judicially review the Director's decision.

The scope of this judgment

4. This judgment relates solely to the matters raised in the Respondents' summonses; essentially therefore to the important issue of the true meaning and effect of section 64(3) of the Interpretation Ordinance. It does not deal with the substantive merits of the Applicant's challenge to the decisions of the Director and the Chief Executive.

Background to the matter

5. The Applicant comes from Nepal. He is a national of that state. He and his wife were married in Nepal. The wife, however, was born in Hong Kong and is a permanent resident here. In early August 1998, the Applicant came to Hong Kong as a visitor to be with his wife. A few days later he applied to the Director for a change of his immigrant status, seeking to remain in Hong Kong as a dependent of his wife. On 13 July 1999, the Director refused the application. He did so on the basis that he was not satisfied that the Applicant's wife, the sponsor, was capable of supporting the Applicant to a reasonable standard of living nor was he satisfied that the Applicant was a genuine dependent of his wife.

6. Being aggrieved by this decision, which is the first decision challenged by the Applicant in his judicial review proceedings, the Applicant chose to seek redress in terms of section 53 of the Immigration Ordinance. Subsection (1) of that section reads:

".... any person aggrieved by a decision, act or omission of any public officer taken, done or made in the exercise or performance of any powers, functions or duties under this Ordinance may by notice in writing lodged with the Chief Secretary within the time prescribed in subsection (2) object to that decision, act or omission."

7. Subsection (3) of that section provides that an objection lodged by a person in the position of the Applicant shall be considered by the Chief Executive in Council.

8. On 16 June 2000, the Applicant was advised that the Chief Executive in Council had confirmed the decision of the Director. The letter from the Secretary for Security read:

"At the meeting of the Chief Executive in Council on 30 May 2000, Members considered the objection you lodged on 17 July 1999. The Council advised and the Chief Executive ordered that the decision of the Director of Immigration in respect of the application by you should be confirmed."

9. This is the second decision challenged by the Applicant. It was a decision made by the Chief Executive pursuant to subsection (4) of section 53 which reads:

"On consideration of an objection under subsection (1) ... the Chief Executive in Council, ... may confirm, vary or reverse the decision, act or omission of the public officer or substitute therefor such other decision or make such other order as he thinks fit."

Section 64(3) of the Interpretation Ordinance

10. In 1950, the recently enacted Interpretation Ordinance was amended by the addition to it of a new section: 39A. The object of this new section was to standardise procedures for appealing to the then Governor in Council against decisions of administrative authorities. More particularly, section 39A(1)(b) provided that, whenever any Ordinance allowed for appeal to the Governor in Council, nothing contained in that statute -

"... shall be deemed to prevent any person from applying to the Supreme Court for a mandamus, injunction, prohibition or any other order should he elect so to do, instead of appealing to the Governor in Council, but no proceedings by way of mandamus, injunction, prohibition or other order shall be taken against the Governor in Council in respect of such provision or provisions;"

11. Subsection (1)(c) continued by providing that:

"every order of the Governor in Council on any appeal under such provision shall be final and may be enforced by the Supreme Court as if it had been an order of that court."

12. Mr Marshall, who appeared for the Respondents, said that his investigations had not been able to shed light on why these two subsections had been made into law. Nothing appears in Hansard on the point.

13. In 1966, section 39A was reconstituted as section 64 of the Interpretation Ordinance. What was originally section 39A(1)(b) is today section 64(3) and reads as follows:

"The conferring by any Ordinance of a right of appeal or objection to the Chief Executive in Council shall not prevent any person from applying to the High Court for an order of mandamus, certiorari, prohibition, injunction or any other order, instead of appealing or making an objection to the Chief Executive in Council, where an application for such an order would lie, but no proceedings by way of mandamus, certiorari, prohibition, injunction or other order shall be taken against the Chief Executive in Council in respect of any such appeal or objection to the Chief Executive in Council or any proceedings connected therewith."

14. The old subsection (1)(c) of section 39A has been replaced by section 64(4) which reads:

"The Chief Executive in Council, when considering any appeal or objection to him (whether by way of petition or otherwise, and whether such appeal or objection is made by virtue of any Ordinance or otherwise) shall act in an administrative or executive capacity and not in a judicial or quasi-judicial capacity and shall be entitled to consider and take into account any evidence, material, information or advice in his absolute discretion."

15. Whatever the previous position may have been, that subsection makes it plain that today, when the Chief Executive sits in Council to consider any appeal or objection, he acts in an administrative or executive capacity and not in one that is judicial or quasi-judicial. There is a material difference between the two. In R. v. Environment Secretary, ex parte Ostler [1977] 1 QB 122 (at page 135) Lord Denning MR expressed it thus:

"In making a judicial decision, the tribunal considers the rights of the parties without regard to the public interest. But in an administrative decision (such as a compulsory purchase order) the public interest plays an important part. The question is, to what extent are private interests to be subordinated to the public interest."

The interpretation of section 64(3) proposed by the Respondents

16. As I comprehend the argument, it is submitted on behalf of the Respondents that section 64(3) precludes judicial review of an administrative authority's decision if the person aggrieved by that decision chooses to seek redress by way of what I will, in general terms, describe as an appeal to the Chief Executive in Council. What is contended is that the phrase in the subsection which reads - 'instead of appealing or making an objection to the Chief Executive in Council' - imposes upon an aggrieved person an election. That person must choose either to seek redress in the supervisory jurisdiction of the High Court or to proceed by way of an appeal to the Chief Executive. If the aggrieved party chooses the latter course, the right to judicially review the administrative authority's decision falls away and with it any right to judicially review the decision of the Executive. That is so, it is argued, because the legislature created the statutory remedy of an appeal to the Chief Executive in Council and, in so doing, made it plain in the wording of the subsection that if an aggrieved person chose not to seek redress through the courts but rather by way of the statutory remedy that chosen pathway excluded the court's supervisory jurisdiction. As the Respondents put it: if the legislature created the statutory remedy, it is entitled to limit it in the interests of finality and certainty.

17. On behalf of the Respondents, Mr Marshall contends that it would, on his reading, be more accurate to describe the subsection as 'elective' rather than an 'ouster' section which absolutely precludes the supervisory jurisdiction of the High Court. An aggrieved person, he says, has the right to seek judicial review of the public authority's decision but it is a right dependent on his election. The same principle applies, he says, when a statute provides for a time limit beyond which judicial review is no longer allowed.

This court's interpretation of section 64(3)

18. With respect, I do not consider such a comparison to be of assistance. Section 64(3) does not seek to compress an aggrieved person's judicial remedies into a time frame dictated by public interest. If I accept the Respondents' interpretation of section 64(3) it means that the legislature will have imposed upon an aggrieved party a single choice: does that person proceed on the merits by way of appeal or does that person embark on an entirely different process; namely, to ask the High Court to identify and correct a recognisable public law wrong entirely outside the merits of the matter? What cannot be ignored is that appeals on the merits and judicial reviews are not of the same breed, the one being little more than a clone of the other. They are - to pursue the metaphor - different creatures. In this regard I can do no better than cite the words of Sir John Donaldson MR (as he then was) in R. v. Panel on Take-overs and Mergers ex parte Datafin Plc [1987] QB 815 (at page 842):

"There was some failure on the part of the applicants to appreciate, or at least to act in recognition of the fact, that an application for judicial review is not an appeal. The panel and not the court is the body charged with the duty of evaluating the evidence and finding the facts. The role of the court is wholly different. It is, in an appropriate case, to review the decision of the panel and to consider whether there has been 'illegality', ie. whether the panel has misdirected itself in law; 'irrationality', ie., whether the panel's decision 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 ..."

19. It is difficult to accept that the legislature would have intended a person who has a justifiable grievance on both the merits of an authority's decision and also on the lawfulness of that decision to nevertheless be forced to elect to proceed on only one. I believe that, in the absence of plain language to the contrary, it can be inferred that the legislature would never have countenanced such a result, one that could lead to a predicament of some absurdity.

20. Nor have I been persuaded that either the interests of certainty or finality are served by the interpretation of section 64(3) that is urged upon me. How is certainty served when an aggrieved person must choose one form of potential redress at the expense of another very different form? Some lip service may be paid to the principle of finality but section 64 provides for time limits in appealing to the Chief Executive while a fundamental principle underlying judicial review is that if a person wishes to challenge the legality of an administrative action he ought to do so expeditiously. The statutory provision of time limits and the principles of judicial review work together therefore to bring about finality.

21. I accept, of course, that the first principle of construction is that plain words must be given their plain meaning. But I do not see that I in any way offend the principle by coming to an interpretation of section 64(3) that avoids the potential predicaments encased in the interpretation suggested by the Respondents. I say this in light of a second principle too; namely, that there is a common law presumption (made historically to secure the rule of law) that access to the courts is not to be denied in a statutory instrument save by the clearest language.

22. It is my understanding that in the first half of section 64(3) an option is offered. But it is not an option that is mutually exclusive. The phrase 'instead of' means no more than 'rather'; in short that an aggrieved person may choose rather to seek judicial review than proceeding by way of appeal to the Chief Executive in Council. But the offer of an alternative does not of itself indicate that the choice must be only one or the other and not, where circumstances permit, a choice of both procedures. The language used is nowhere near clear enough for that to be the unambiguous meaning. As I see it, the true intent of the subsection, as a matter of ordinary construction, is to say that an aggrieved person seeking to challenge the decision of an administrative authority has a choice of both procedures but if an appeal is made to the Chief Executive in Council a decision on that matter will not itself be subject to judicial review.

23. In summary, while section 64(3) concedes that rights of appeal to the Chief Executive do not prevent an aggrieved person from also (or only) seeking judicial review of an administrative authority's decision, it purports to protect from similar challenge the valid decisions of the Chief Executive made when he is called upon to decide such appeals.

24. Accordingly, in my judgment, in so far as section 64(3) may be described as an 'ouster' section it seeks only to oust (that is, to preclude) decisions of the Chief Executive from the scrutiny of the High Court and does not purport to limit the procedural options open to an aggrieved part when deciding how best to challenge the decision of an administrative authority.

But is the Court ousted from reviewing decisions of the Chief Executive in Council?

25. In the present case, although the Chief Executive had the power in terms of section 64(5) of the Interpretation Ordinance to vary the Director's decision or substitute it with a different decision, he chose not to do so. The Chief Executive did no more than confirm the Director's decision. As such, it appears to me that in the present case, whether or not the decision of the Chief Executive is subject to any degree to judicial review, will not, in practical terms, affect the outcome of the Applicant's judicial review. I say so because the Chief Executive has not made a distinct decision severable from the decision of the Director, a decision capable of standing on its own even if the decision if the Director is found to be a nullity. My brother, Chung J, expressed it thus in Akram v. Secretary for Security [2000] 1 HKLRD 164 (at page 177):

"The Governor-in-Council merely decided ... that the applicant's appeal was rejected. The Governor-in-Council did not make a separate order from the one made by the Secretary for Security earlier. Hence, once the deportation order is found to be a nullity, there is nothing to which the decision to reject the appeal can "attach"."

26. But that, of course, does not dispose of the central complaint; namely, that, by reason of section 64(3), the Chief Executive's decision is immune from judicial review and accordingly the Chief Executive in Council should not be a party to the Applicant's proceedings.

27. The relevant wording of the subsection bears repeating as the question is one of construction. It is drafted in the following terms:

"... but no proceedings by way of mandamus, certiorari, prohibition, injunction or other order shall be taken against the Chief Executive in Council in respect of any such appeal or objection to the Chief Executive in Council or any proceedings connected therewith."

28. These are strong words. They clearly constitute a total 'ouster' provision and not one that is qualified in some way; for example, by allowing access to the courts but only within a restricted period of time. As such, I am of the view that if section 64(3) is in any way to be subject to the supervisory jurisdiction of the High Court it can only be upon the principles first enunciated in Anisminic Ltd v. Foreign Compensation Commission [1969] 1 All ER 208.

29. The wording at issue in Anisminic was contained in the Foreign Compensation Act of 1950. Under that statute a commission was constituted and given powers to determine claims for compensation, the funds coming from foreign governments which had taken measures against the property of British subjects. Section 4(4) of the statute provided that a determination by the commission of any application made to it "shall not be called in question in any court of law". Here too the words, while more general, were clear and unqualified. The commission rejected a claim made by Anisminic Ltd which then took judicial review proceedings seeking a declaration that the commission's determination was a nullity.

30. The Court of Appeal agreed that if the commission had erred, its error had gone to the merits and not to jurisdiction. The House of Lords, however, rejected the idea that the jurisdiction of an administrative tribunal was to be determined only at the outset of its inquiry, holding that a tribunal may do (or fail to do) something during the course of its inquiry which renders its decision a nullity. In this regard, Lord Reid said (at page 213):

"...there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors ... then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law ..."

31. Lord Wilberforce (at page 244) said:

"The question, what is the tribunal's proper area, is one which it has always been permissible to ask and to answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality, or unquestionability on its decisions. These clauses in their nature can only relate to decisions given within the field of operation entrusted to the tribunal. They may, according to the width and emphasis of their formulation, help to ascertain the extent of that field, to narrow it or to enlarge it, but unless one is to deny the statutory origin of the tribunal, and of its powers, they cannot preclude examination of that extent. It is sometimes said (the argument was presented in these terms) that the preclusive clause does not operate to decisions outside the permitted field because they are a nullity. There are dangers in the use of this word if it draws with it the difficult distinction between what is void and what is voidable, and I certainly do not wish to be taken to recognise that this distinction exists or to analyse it if it does. But it may be convenient so long as it is used to describe a decision made outside the permitted field, in other words, as a word of description rather than as in itself a touchstone." [my emphasis]

32. Accordingly, an administrative tribunal (such as the Chief Executive in Council determining an appeal) is protected from the supervisory scrutiny of the High Court provided it acts and makes its determinations within what Lord Wilberforce called its 'permitted field'. If, however, it exceeds its jurisdiction in the ways contemplated by Lord Reid then, by stepping outside its 'jurisdiction' or 'permitted field' it has made an erroneous inquiry and one which is a nullity.

33. In an oft-quoted obiterdicta passage in O'Reilly v. Mackman [1983] 2 AC 237 (at page 278), another decision of the House of Lords, Lord Diplock commented:

"The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, i.e., one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported "determination," not being a "determination" within the meaning of the empowering legislation, was accordingly a nullity."

34.Anisminic has been criticised as being in disobedience of the express instructions of the legislature but it is clear that it remains good law, the jurisprudential rationale being that if a tribunal could become a law unto itself, it would move dangerously towards dictatorship, the personalities presiding on the tribunal, empowered with an uncontrollable jurisdiction, becoming the sole judges of the validity of their own decisions. See, for example: Constitutional and Administrative Aspects of the Anisminic case by Professor Wade (1969) 85 LQR 198.

35. In Anisminic itself, Lord Wilberforce was aware of the potential criticism of disobedience of the express instructions of Parliament. In this regard, he said:

"The courts, when they decide that a 'decision' is a 'nullity', are not disregarding the preclusive clause. For just as it is their duty to attribute autonomy of decision of action to the tribunal within the designated area, so as the counterpart of this autonomy, they must ensure that the limits of that area which have been laid down are observed .... In each task they are carrying out the intention of the legislature, and it would be misdescription to state it in terms of a struggle between the courts and the executive. What would be the purpose of defining by statute the limit of a tribunals' powers, if by means of a clause inserted in the instrument of definition, those limits could safely be passed?"

36. But are the principles enunciated in Anisminic applicable to section 64(3) which specifically purports to preclude (or oust) proceedings by way of 'mandamus, certiorari, prohibition, injunction or other order' the very proceedings through which the Anisminic principles are made effective? Recent authorities indicate that the principles will still apply.

37. An authority directly in point is Attorney General v. Ryan [1980] 2 WLR 143 PC. This judgment of the Privy Council concerned an 'ouster' provision in the Bahamas Nationality Act 1973 which entitled the Minister of Home Affairs of the Bahamas to refuse to register applications for citizenship. Section 16 of the statute provided:

"the Minister shall not be required to assign any reason for the grant or refusal of any application ... under this Act ... and the decision of the Minister ... shall not be subject to appeal or review in any court." [my emphasis]

38. Lord Diplock, in giving the judgment of the Board on the issue, said (at page 730):

"It is by now well-established law that to come within the prohibition of appeal or review by an ouster clause of this type, the decision must be one which the decision-making authority, under this Act the Minister, had jurisdiction to make. If in purporting to make it he has gone outside his jurisdiction, it is ultra vires and is not a "decision" under the Act. The Supreme Court, in the exercise of its supervisory jurisdiction over inferior tribunals, which include executive authorities exercising quasi-judicial powers, may, in appropriate proceedings, either set it aside or declare it to be a nullity: Anisminic Ltd. v. Foreign Compensation Commission ([1969]) 1 All ER 208, [1969] 2 AC 147). It has long been settled law that a decision affecting legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision-making authority. As Lord Selborne said as long ago as 1885 in Spackman v. Plumstead District Board of Works (10 App Cas 229 at 240): "There would be no decision within the meaning of the statute if there were anything ... done contrary to the essence of justice." See also Ridge v. Baldwin ([1963] 2 All ER 66, [1964] AC 40). Their Lordships, in agreement with all the judges in the court below, would therefore conclude that the ouster clause in section 16 of The Bahamas Nationality Act 1973 does not prevent the court from enquiring into the validity of the Minister's decision on the ground that it was made without jurisdiction and is ultra vires."

39. In the 1996 Court of Appeal decision of R. v. Secretary of State for the Home Department, ex parte Fayed and another [1997] 1 All ER 228, Lord Woolf MR cited Attorney-General v. Ryan with approval. In that case, the Secretary of State for the Home Department accepted, without the need for argument, that section 44(2) of the British Nationality Act 1981 did not prevent the court exercising its jurisdiction to review a decision of his on traditional judicial review grounds. Section 44(2) of the Act read:

"The Secretary of State, a Governor or a Lieutenant-Governor, as the case may be, shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State or a Governor or Lieutenant-Governor on any such application shall not be subject to appeal to, or review in, any court."

40. In my judgment, therefore, it is now settled law, applicable in the courts of Hong Kong, that in respect of what I will call 'complete ouster' provisions, such as the one appearing in section 64(3), the Anisminic principles will be applied.

The reasoning in Smith v. East Elloe RDC

41. During the course of his submissions, Mr Marshall placed before me a series of authorities, three of which may be cited here as being definitive of his arguments. They are Smith v. East Elloe Rural District Council [1956] 1 All ER 855; R. v. Secretary of State for the Environment, ex parte Ostler [1976] 3 All ER 90 and R. v. Secretary of State for the Environment, ex parte Kent [1990] COD 1-83 page 79.

42. In these cases the courts refused to question the decisions under challenge by reason of the fact that those decisions (of various tribunals) were protected by 'ouster' provisions.

43. A great deal has been written about the apparent conflict between Smith (and the line of cases following it) and the Anisminic line of authorities. What is apparent, however, is that the Smith line of cases all concern time limit clauses and their place in a broader statutory scheme.

44. In Smith the Court upheld an 'ouster' provision linked to a time limit clause even in the face of an allegation of bad faith or fraud. In both ex parte Ostler and ex parte Kent the courts upheld similar provisions linked to 6 week time limit clauses. The Anisminic principles, however, concern provisions which attempt absolutely to protect the decision of an inferior tribunal from judicial scrutiny, such provisions allowing no limited or qualified access to the courts, such provisions standing on their own and not being an integral part of some greater statutory scheme created by the legislature for the public good: for example land acquisition for the building of roads.

45. If any explanation needs to be given for why there should be a distinction, I can do no better than quote the words of Lord Denning MR in ex parte Ostler. The headnote of that case reads (in part) as follows:

"Since the respondent had failed to apply to the court within the period of six weeks from the date of publication of the order as required by para 4B of Sch 2 to the 1959 Act the court had no jurisdiction to entertain the application. It was immaterial that the respondent was seeking to question the validity of the order on the ground of bad faith for the provision in para 4 that, after the expiry of the time limit, the order was not to 'be questioned in any legal proceedings whatever' was absolute."

46. Lord Denning amplified the reasoning of the Court of Appeal (in the light of the earlier Anisminic decision) in the following terms:

"Looking at it broadly, it seems to me that the policy underlying the 1959 Act is that when a compulsory purchase order has been made, then if it has been wrongly obtained or made, a person aggrieved should have a remedy. But he must come promptly. He must come within six weeks. If he does so, the court can and will entertain his complaint. But if the six weeks expire without any application being made, the court cannot entertain it afterwards. The reason is because, as soon as that time has elapsed, the authority will take steps to acquire property, demolish it and so forth. The public interest demands that they should be safe in doing so. Take this very case. The inquiry was held in 1973. The orders made early in 1974. Much work has already been done under them. It would be contrary to the public interest that the demolition should be held up or delayed by further evidence or inquiries. I think we are bound by Smith v East Elloe Rural District Council to hold that Mr Ostler is barred by the 1959 Act from now questioning these orders." [my emphasis]

47. The distinction between the Smith line of cases and Anisminic has, I believe, now become settled. An example of this is to be found in R. v. Cornwall Country Council, ex parte Huntingdon [1994] 1 All ER 694, a decision of the Court of Appeal in which Simon Brown LJ, in speaking of the apparent conflict between the two lines of authority to which I have referred, said as follows:

"These decisions ... were subjected to close analysis by Mann J in the Cornwall application and I can do no better than quote with respectful approval this concluding passage from his judgment ([1992]) 3 All ER 566 at 575):

'In my judgment, the decision in Ex p Ostler presents the same insuperable obstacle to [the applicant] as it did to the applicant in Ex p Kent [1990] JPL 124. The question as to the ouster clause in the 1981 Act is one of construction and so far as this court is concerned, it has been authoritatively decided. The intention of Parliament when it uses an Anisminic clause is that question as to validity are not excluded (see [1969] 1 All ER 208 at 244, [1969] 2 AC 147 at 208 per Lord Wilberforce). When paragraphs such as those considered in Ex p Ostler are used, then the legislative intention is that questions as to invalidity may be raised on the specified grounds in the prescribed time and in the prescribed manner, but that otherwise the jurisdiction of the court is excluded in the interest of certainty." [my emphasis]

The extent to which decisions of the Chief Executive in Council are subject to review

48. Having found that section 64(3) does not act as an absolute bar to this Court exercising its jurisdiction of review, the question then arises of the extent to which that jurisdiction may be exercised.

49. The applicable principles were, I believe, identified in the Privy Council decision in South East Asia Fine Bricks v. Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363. The 'ouster' provision under consideration came from the Malaysian Industrial Relations Act 1967 (section 29(3)) which read:

"Subject to this Act, an award of the [Industrial] Court shall be final and conclusive, and no award shall be challenged, appealed against, reviewed, quashed or called in question in any court of law."

50.In considering the effect of this section, Lord Fraser said:

"The decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission shows that, when words in a statute oust the power of the High Court to review decisions of an inferior tribunal by certiorari, they must be construed strictly, and that they will not have the effect of ousting that power if the inferior tribunal has acted without jurisdiction or if "it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity": per Lord Reid at p.171. But if the inferior tribunal has merely made an error of law which does not affect its jurisdiction, and if its decision is not a nullity for some reason such as breach of the rules of natural justice, then the ouster will be effective. In Pearlman v. Keepers and Governors of Harrow School [1979] Q.B. 56, 70, Lord Denning M.R. suggested that the distinction between an error of law which affected jurisdiction and one which did not should now be "discarded". Their Lordships do not accept that suggestion. They consider that the law was correctly applied to the circumstances of that case in the dissenting opinion of Geoffrey Lane L.J. when he said, at p.74:

"... the only circumstances in which this court can correct what is to my mind the error of the [county court] judge is if he was acting in excess of his jurisdiction as opposed to merely making an error of law in his judgment by misinterpreting the meaning of 'structural alteration ... or addition.'"

Conclusion

51. In my judgment, for the reasons given, both summonses issued by the Respondents should be dismissed.

52. I am satisfied that section 64(3) of the Interpretation Ordinance does not prevent the Applicant from seeking to judicially review the decision of the Director even though the Applicant chose earlier to lodge an objection concerning that decision with the Chief Executive in Council.

53. I am further satisfied that section 64(3) of the Interpretation Ordinance does not prevent the Applicant from seeking to judicially review the decision of the Chief Executive in Council if it can be shown that the Chief Executive in Council 'has done or failed to do something in the course of the [appeal] inquiry which is of such a nature that its decision is a nullity'.

54. Whether the Applicant in the present case will be able to identify alleged acts or omissions of the Chief Executive in Council which are of such a nature as to nullify his administrative decision is not a matter which has been canvassed before me. Nor do I believe, at least without the assistance of counsel, am I capable of making any such identification on the papers submitted by the Applicant in support of his application for judicial review. If there is to be any attempt to identify such acts or omissions it can most conveniently be done at the substantive judicial review hearing and the question decided then on its merits.

55. As for costs, there will be an order nisi awarding costs to the Applicant, such costs to be taxed if not agreed. The order nisi will become final 30 days after the handing down of this judgment if no application is made earlier to discharge or vary this order nisi.

(M J Hartmann)
Judge of the Court of First Instance

Representation:

Mr Hectar Pun, instructed by Messrs Joseph C T Lee & Co., for the Applicant

Mr William Marshall, SC together with Mr Caspar Chu, GC for the Secretary of Justice for both Respondents

GURUNG BHAKTA BAHADUR v. DIRECTOR OF IMMIGRATION AND ANOTHER

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