Hong Kong Regulations

IMMIGRATION REGULATIONS - SCHEDULE 4

(Past version on 12/11/1999).

[regulation 9B]

1. Interpretation

In this Schedule, unless the context otherwise requires- "notice of appeal"
(上訴通知書) means the form specified by the Director under
section 2AD(1) or (2) of the Ordinance for the purpose of lodging an appeal
under that section. (L.N. 4 of 2000)

2. Notice of appeal to Tribunal

(1) The Director shall, at the time of informing an applicant of the right of
appeal to the Tribunal under section 2AB(6)(b)(iii) or 2AC(6)(b)(iii) of the
Ordinance, provide him with a notice of appeal.

(2) An applicant who wishes to appeal to the Tribunal shall lodge with the
chief adjudicator a notice of appeal stating his grounds of appeal and the
facts upon which he relies, and a copy of such documentary evidence (if any)
in support of the appeal.

3. Duty of Tribunal in respect of notice of appeal and documentary evidence

The Tribunal shall, as soon as practicable, cause a copy of every notice of
appeal and a copy of any such documentary evidence (if any) in support of the
appeal that it has received from the applicant to be given to the Director.

4. Expediting appeals

The Tribunal shall deal with an appeal as expeditiously as is practicable, and
for that purpose may sit at any time.

5. Appeals to be heard by 2 adjudicators

(1) Subject to subparagraph (2), an appeal to the Tribunal shall be heard and
determined by 2 adjudicators sitting together.

(2) The Tribunal shall allow an appeal if either adjudicator hearing the
appeal considers that the appeal should be allowed under section 2AD(5)(a) or
(6)(a) of the Ordinance.

6. Hearings to be in private except in special circumstances

(1) Subject to subparagraph (2), an appeal shall be heard in private.

(2) Where the Tribunal hearing an appeal, after consulting the parties to the
appeal, is satisfied that it is desirable for a hearing or part of a hearing
to take place in public, it may by order give such direction and directions as
to the persons who may be present.

7. Tribunal not confined to grounds set out in notice of appeal

The Tribunal may consider any matter which appears to it to be relevant to any
ground of appeal permitted by the Ordinance notwithstanding the omission of
any reference to such matter in the notice of appeal, and may receive and
consider any evidence which appears to it to be relevant to the issues before
it notwithstanding that the evidence would not be admissible in a court of
law.

8. Respondent on an appeal

The Director shall be the respondent to an appeal and may be represented by an
immigration officer.

9. Representation of appellant

(1) An appellant may be represented at the hearing-

   (a)  by counsel or a solicitor who is authorized by the appellant to appear
        as his representative; or

   (b)  by such other representative authorized by the appellant as may be
        approved by the Tribunal.

(2) Where the appellant is represented by counsel or a solicitor, the Director
may also be represented by counsel or a solicitor.

10. Director to prepare facts for Tribunal

(1) The Director shall, as soon as practicable after having received a copy of
any notice of appeal given to him under paragraph 3, cause-

   (a)  a written summary of the facts of the case in relation to the notice
        of appeal and of the reasons for the decision not to issue a
        certificate of entitlement or a certified duplicate thereof to be
        prepared and to be given to the Tribunal; and

   (b)  a copy of that written summary to be given to the appellant.

(2) Unless an appeal is to be heard in the absence of the appellant under
paragraph 14, it shall not be necessary for the Director to comply with
subparagraph (1) if he is of the opinion that it is not practicable to do so
having regard to the time available before the hearing of the appeal; but in
any such case an oral statement of the facts of the case and of the reasons
for the decision not to issue a certificate of entitlement or a certified
duplicate thereof shall be given at the hearing of the appeal.

11. Notice of hearing date

The Tribunal shall cause notice in writing to be given as soon as is
practicable to- (L.N. 4 of 2000)

   (a)  the Director; and

   (b)  the appellant, stating the time and place of the hearing.

12. Witnesses and evidence

(1) The Tribunal may, on its own motion, or on the application of the
appellant or of the Director, by summons require any person to attend as a
witness at the hearing of an appeal at such time and place as may be specified
in the summons, and at the hearing to answer any question or produce any
document in his possession, custody or power which relate to any issue in the
appeal.

(2) (a) Notwithstanding subparagraph (1), no person shall be compelled to give
any evidence or produce any document which he could not be compelled to give
or produce in proceedings in a court of law.

   (b)  Nothing in this subparagraph shall entitle any person to refuse to
        give any evidence or produce any document on the ground only that such
        evidence or document would not be admissible in a court of law and
        that accordingly he could not be compelled to give or produce it.

(3) The Tribunal may require any witness to give evidence on oath or
affirmation.

(4) For the purpose of this paragraph, the Tribunal and any adjudicator shall
have the same powers in relation to witnesses as a magistrate would have under
sections 21 and 22 of the Magistrates  Ordinance ( Cap 227) in proceedings
under Part II of that Ordinance, and a summons to a witness shall be in such
form as the chief adjudicator may determine.

(5) (a) The Tribunal may, on the application of a witness who attends at the
hearing of an appeal to give evidence (including professional or expert
evidence), allow in respect of him a professional witness allowance, expert
witness allowance or loss allowance, as the case may be, not exceeding the
professional witness allowance, expert witness allowance or loss allowance
that a magistrate may allow under the Criminal 
Procedure (Witnesses' Allowances) Rules ( Cap 221 sub. leg.) in respect of a
witness who attends to give evidence in criminal proceedings.

   (b)  Any sum allowed under sub-subparagraph (a) shall cease to be payable
        unless claimed by or on behalf of the witness who made the application
        to the Tribunal in that behalf within 3 months from the date on which
        it was allowed.

13. Transfer of hearing to other adjudicators

(1) Where an appeal has not been disposed of by the adjudicators hearing it,
the chief adjudicator shall make arrangements, if he is of the opinion that it
is not practicable for the appeal to be determined by those adjudicators, or
determined without undue delay by those adjudicators, for the appeal to be
dealt with by one of those adjudicators and another adjudicator or 2 other
adjudicators; and the appeal may be dealt with accordingly.

(2) Where the adjudicators hearing an appeal consider that the appeal should,
for any reason, be dealt with by one of them and another adjudicator, or by 2
other adjudicators, they may make arrangements for the appeal to be so dealt
with; and the appeal may be dealt with accordingly.

14. Hearings in absence of appellant

(1) The Tribunal may hear an appeal in the absence of the appellant-

   (a)  if the appellant refuses or declines to appear when given the
        opportunity to do so;

   (b)  if the appellant fails to appear and the Tribunal is satisfied that he
        will not appear; or

   (c)  if the Tribunal is satisfied that-

        (i)    by reason of illness or injury the appellant cannot attend the
               hearing; or

        (ii)   if the appellant did attend the hearing he would present a
               threat to the health or safety of other persons at the hearing,
               and having made due enquiry as is practicable, the Tribunal is
               satisfied that it would be proper in all the circumstances to
               proceed in the absence of the appellant. (L.N. 4 of 2000)

(2) The Tribunal may, if it hears an appeal in the absence of an appellant
under subparagraph (1), determine the appeal without an oral hearing on the
basis of such written submissions which may have been submitted (if any) to
the Tribunal.

(3) Nothing in this paragraph shall be taken to prevent the appellant from
being represented at the hearing by any person by whom he is able to be so
represented under paragraph 9.

15. Record of proceedings

The Tribunal shall keep a summary or record of proceedings in every appeal
which comes before it in such form as the chief adjudicator may determine.
(L.N. 273 of 1999) "notice of appeal" (上訴通知書)