Li Jin Fei And Others v Director Of Immigration

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. All these three applications for Judicial Review cover similar ground. They relate to families who have paid large sums of money to obtain passports from the Kingdom of Lesotho and nationalisation as citizens of that country.

2. The families all originate from China. In each case a response was made to an invitation to apply for citizenship of Lesotho in consideration of a sum of HK$250,000. It needs to be emphasised that all of the applications were made above board and in good faith. The payments of the said consideration were made to solicitors representing the Honorary Consul here and receipts were issued by the solicitors.

3. The applications were made in the middle of last year. In August, two of the families went to Lesotho to attend a ceremony when Certificates of Naturalisation signed by the Minister of the Interior were presented to them. The 3rd family, the Yins, did not go to Lesotho as Mrs. Yin was in the late stages of pregnancy. Their daughter, Amy, was born on the 20th December.

4. All of the families applied to the Director of Immigration here in the latter part of November 1991 for a change of their status. In each case a successful business had been commenced in Hong Kong and on the basis of their citizenship of Lesotho they were applying to be allowed to remain in Hong Kong.

5. Towards the end of December rumours began to circulate that 276 Lesotho passports issued to Chinese persons had been cancelled.

6. Unfortunately these rumours proved to be well-founded. On the 10th January 1992 The Director of Imigration received from the British High Commission in Lesotho a notification in this form :

"The Ministry of Foreign Affairs of the Kingdom of Lesotho presents its compliments to all Diplomatic Missions, Consulates and Trade mission accredited to Lesotho and has the honour to advise the latter that the following Lesotho International Passports, as per attached list, have been cancelled and declared invalid with immediate effect.

The Ministry of Foreign Affairs of the Kingdom of Lesotho avails itself of this opportunity to renew to all Diplomatic Missions, Consulates and Trade Mission accredited to Lesotho, the assurances of its highest consideration.

MASERU

3 December 1991"

7. The names of all of the members of the three families were included in the attached list.

8. Some of the victims of this decision, not including any of the families making these applications, resorted to litigation in Lesotho in an attempt to obtain a Declaration that the passports were valid and that the holders thereof were citizens of Lesotho. This litigation did not meet with success. On the 11th February, the chairman of the Military Council and Council of Ministers gazetted an order in these terms :

" ORDER NO. 3 OF 1992

REVOCATION OF SPECIFIED CITIZENSHIP

AND CANCELLATION OF

PASSPORTS ORDER 1992

(Commencement : See Section 1)

ORDER

WHEREAS the persons specified in the Schedule hereto have been granted Lesotho Citizenship and issued with Lesotho passports;

AND WHEREAS the said granting of Lesotho citizenship and issuing of Lesotho passports were unlawful, fraudulent, irregular and against the public interest of Lesotho;

NOWTHEREFORE be it enacted as follows BY THE MILITARY COUNCIL.

1. This Order may be cited as the Revocation of Specified Citizenship and Cancellation of Passports order 1992 and is deemed to have come into operation on the 1st day of December, 1991.

2. Notwithstanding any other law, it is hereby declared that the grant of Lesotho citizenship to persons whose names are specified in the Schedule is hereby revoked.

3. Notwithstanding any other law, Lesotho passports which were issued to persons whose names are specified in the Schedule, are hereby cancelled.

4. (1) Notwithstanding any other law, no action or other legal proceedings whatsoever, whether civil or criminal shall be instituted in any court of law against,

(a) the Crown;

(b)any member of the Military Council acting in his official capacity;

(c)any member of the Council of Ministers acting in his official capacity;

(d)the Attorney-General;

(e) any person employed in the public service;

(f)any other person acting under the authority of a person so holding office or so employed as aforesaid,

for or on account of, or in respect of any act whatsoever, matter or thing done or purported to be done in connection with or related to the granting or revocation of citizenship or the issuing or cancellation of Lesotho passports.

(2)If any such proceedings have been instituted whether before or after the passing of this order, they shall forthwith by operation of this order, being charged and made void and no order for costs shall be made against the Crown or persons specified in subsection (1) . "

9. It will be noted that this Order purported to have retrospective effect from the 1st December, 1991.

10. Even before the Court had delivered its judgment, the Director of Immigration here was not prepared to continue to consider the applications he had received from the families. He was of the opinion that he was unable to entertain such an application if the applicant did not hold a valid travel document. In addition to this he was not prepared to permit the Applicants to remain in Hong Kong indefinitely.

11. The position is not without its complications as one of the problems which arises in the present case is whether any of the families can now return to China or whether they are stateless persons as defined by Article 1 of the Convention on Stateless Persons :

Article 1

DEFINITION OF THE TERM "STATELESS PERSON"

1. For the purpose of this Convention, the term "stateless person" means a person who is not considered as a national by any State under the operation of its law.

2. This Convention shall not apply:

i. To persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection or assistance;

ii. To persons who are recognized by the competent authorities of the country in which they have taken residence as having the rights and obligations which are attached to the possession of the nationality of that country;

iii. To persons with respect to whom there are serious reasons for considering that:

a. They have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;

b. They have committed a serious non-political crime outside the country of their residence prior to their admission to that country;

c. They have been guilty of acts

contrary to the purposes and principles of the United Nations."

12. The Director of Immigration seems to be under the impression that none of the Applicants come within this description. In a supplemental affidavit Mr. Ambrose Lee states that inquiries of the relevant authorities indicate that there would be no objection raised by the Chinese Authorities if the Applicants were to attempt to return to China.

13. It is necessary, however, to consider this evidence in conjunction with the communication which was received from the Immigration Control Office of the Public Security Department of Kwangtung province dated the 2nd September 1992.

" Public Security Department Kwangtung Province

Mr. Li Jin Fei :

Your letter addressed to us has been received and noted. In regard to your and your family members' request for returning to China for permanent stay, under the current regulations, you and your family members do not meet with the conditions for returning to China for permanent stay as you have successfully applied for permanent stay in Lesotho and you have also obtained the passport issued by Lesotho and that your household registration had already been cancelled.

Regards.

Chopped with the chop of Immigration Control Office Public Security...