Facts
- Ng Yuen Shiu, an illegal immigrant from mainland China, was residing in Hong Kong and faced deportation.
- The Hong Kong government issued a public announcement stating that each illegal immigrant from mainland China would be interviewed before any deportation decision.
- Mr. Ng was detained without being granted the promised interview.
- He challenged his detention, asserting that the government's public statement created a legitimate expectation of a hearing.
Issues
- Whether a public authority’s assurance of a procedural safeguard, such as an interview, gives rise to a legitimate expectation enforceable by law.
- Whether failure to provide a promised hearing or interview constitutes a denial of natural justice, even without a substantive legal right to remain.
- Whether governmental representations regarding process can be relied upon to require procedural fairness in administrative decisions.
Decision
- The Privy Council found in favour of Mr. Ng Yuen Shiu.
- The government's public announcement created a procedural legitimate expectation of a hearing.
- The failure to provide the promised interview breached natural justice.
- The assurance did not create a substantive right to remain in Hong Kong, but did require the promised interview procedure to be followed.
- The decision not to provide a hearing rendered the deportation process legally flawed and open to judicial review.
Legal Principles
- Public authorities are bound by clear representations they make regarding procedural safeguards, obliging them to afford procedural fairness where a legitimate expectation exists.
- Legitimate expectation can be procedural in nature, requiring fairness in decision-making when an assurance has been made, even absent a pre-existing legal right.
- Breach of procedural legitimate expectation can result in an administrative decision being set aside for failing to comply with natural justice.
- Public authorities cannot disregard procedural expectations created by their own public pronouncements concerning process.
Conclusion
Attorney-General of Hong Kong v Ng Yuen Shiu confirmed that public authorities must honour procedural assurances, giving rise to enforceable legitimate expectations and reinforcing procedural fairness and judicial review in administrative decision-making.