Roy Mahesh J v. Registration of Persons Tribunal

HCAL 2682/2019

[2020] HKCFI 1492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2682 OF 2019

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.This is the rolled-up hearing of the Applicant’s application for judicial review of the determination made by the Registration of Persons Tribunal (“the Tribunal”) on 20 May 2019 dismissing his appeal against the decision of the Commissioner of Registration (“the Commissioner”) declaring his Hong Kong permanent identity card (“HKPIC”) issued on 6 May 2010 to be invalid.

BASIC FACTS

(i)  The Applicant’s background

2.The Applicant was born on 24 December 1970 into an impoverished family in a rural village in Tupsi Khata, Chawpatty, Western Bengal State, India.  As will be seen below, the date of birth of the Applicant became a matter of controversy which eventually gave rise to this application. According to the Applicant, he did not know his true date of birth until July 2010 (at which time he would be some 40 years of age), and thought at all material times that his date of birth was 6 June 1960.

3.The Applicant’s only education was from 1975 to 1982 in a village school where he learnt the basics of the Bengali village dialect.  He started working for a circus touring around India in 1983 in return for food and shelter.  He stayed with the touring circus for around one year until he went to work as a helper in a local restaurant in Bombay for two to three years.

4.In or about 1985, the Applicant was offered employment by a person (“the Dubai Employer”) as a cook in a restaurant in Dubai.  At that time, he did not have any passport, birth certificate or other form of identification.  The Dubai Employer, through a travel agent, arranged for the Applicant to obtain a passport.  The Applicant said he signed a number of documents in relation to the application for the passport, but he did not know about the contents of the documents as he was illiterate.

5.On 10 July 1985, the passport authority in Bombay issued to the Applicant a passport (“the Indian Passport”), which stated his date of birth to be 6 June 1960 (“the 1960 DOB”).  Using the Indian Passport, he travelled to Dubai in or about 1986 and worked as a cook in a restaurant until September 1987 when he suffered injury to his back in an accident which prevented him from continuing to work in Dubai.  He returned to India in about March 1989.  After his return to India, he handed over the Indian Passport to the Dubai Employer’s relatives in Bombay.

(ii)  The Applicant settled in Hong Kong

6.In early 1990, the Applicant was invited by the owner of an Indian restaurant to work as a chef in Hong Kong.  As the Indian Passport was due to expire on 9 July 1990, the Applicant contacted the Dubai Employer’s relatives in Bombay, who assisted him to renew his Indian Passport. The validity of the Indian Passport was eventually extended to 9 July 1995. The Applicant’s employer in Hong Kong also arranged for a visa to be issued to the Applicant for him to come to Hong Kong.

7.On 10 October 1990, the Applicant entered Hong Kong on the strength of the Indian Passport bearing the 1960 DOB.  He was given permission to land and remain in Hong Kong as a visitor until 10 January 1991.

8.In around October / November 1990, the Applicant applied for and obtained an employment visa to work in a restaurant in Hong Kong.  Permission was given for him to remain in Hong Kong on employment status on 17 November 1990.  On 27 November 1990, the Applicant first registered for, and was issued, a Hong Kong identity card (“HKIC”). He has since been living here as a Hong Kong resident.

9.Between 1991 and 1997, the Applicant made no less than 8 applications to the Director of Immigration (“the Director”) for change of employment or extension of stay.  Those applications were granted by the Director.

10.Having completed seven years of ordinary residence in Hong Kong, the Applicant was granted unconditional stay on 23 December 1997.  On 11 February 1998, the Applicant’s application for verification of eligibility for permanent identity card was approved.  On the same day, he registered for, and was later issued, a HKPIC.

11.On 14 February 2008, the Applicant and Ms Ordono Analiza Madayag registered their marriage in Hong Kong.

12.On 7 March 2009, the Application applied for naturalisation as a Chinese national.  On 4 May 2010, the Applicant renounced his Indian nationality.  On 6 May 2010, the Immigration Department issued to the Applicant a Certificate of Naturalisation as a Chinese National.  On the same day, the Applicant applied for a HKSAR Passport.  Later in May 2010, a HKSAR passport was issued to the Applicant.

13.In all the Applicant’s applications mentioned above, and in the Applicant’s HKIC, HKPIC, Certificate of Naturalisation as a Chinese National and HKSAR Passport, the Applicant’s date of birth was consistently stated to be 6 June 1960.

(iii)  The Applicant’s discovery of his true date of birth

14.In July 2010, the Applicant went back to his home village in Tupsi Khata to visit his family there.  He showed his HKSAR passport to his family members, who told him that there must have been a mistake in his date of birth as shown on the passport, because he was not born in 1960.  Upon further inquiry, the Applicant was told that he could not have been born earlier than his elder sister, who was born in 1964.  The Applicant’s adoptive father also confirmed that the Applicant was in fact born on 24 December 1970 (“the 1970 DOB”).

15.On 15 November 2010, the Applicant applied to amend his date of birth as shown on his HKPIC.  He attended an interview at the Registration of Persons Office, during which he was asked to provide documents to support his application.  Later, he applied to the Indian court for a declaration regarding his date of birth.  On 21 January 2015, the Applicant obtained a judgment from an Indian Civil Court (“the Indian Court Judgment”) declaring 24 December 1970 to be his actual date of birth.

16.On 3 June 2015, the Applicant made another application to amend the date of his birth as shown on his HKPIC, providing the Indian Court Judgment in support of the application.

(iv)  The Commissioner’s decision to declare the Applicant’s HKPIC to be invalid

17.On 11 December 2015, the Director wrote to the Applicant (through his former solicitors, Dissanayake & Associates (“D&A”)) stating, inter alia, as follows:

“Given that the permissions [to] land / remain granted to you as a visitor on 10 October 1990, subsequent approval for employment visa granted on 17 November 1990, subsequent extensions of stay on employment status in Hong Kong granted on 6 November 1991, 2 January 1993, 17 December 1993, 30 September 1994, 14 August 1995, 26 February 1996, 24 February 1997 as well as the unconditional stay granted on 23 December 1997 were obtained under your false representation of your date of birth, the previous permissions to land and remain granted to you should be considered null and void. Accordingly, the Director intends to vitiate the permissions to land and remain granted to you commencing on 10 October 1990 to 14 February 1998 and the unconditional stay granted to you on 23 December 1997. The Right of Abode Section of this Department may also review your Hong Kong permanent resident status which was granted on the basis of your previous stays in Hong Kong”.

The Applicant was invited to make representations as to why the previous permissions granted to him to land and remain in Hong Kong should not be vitiated.

18.By a letter to the Director dated 23 December 2015, D&A made representations on behalf of the Applicant, setting out the Applicant’s version of events as summarized above and stating that the Applicant -

“has not intentionally misled any officer of [the Immigration Department] from the date of his entry to the present date. You will see that he innocently believed his date of birth to be 1960, June 06 whereas he later discovered that was wrong.”

19.By a letter to D&A dated 2 February 2016, the Director informed the Applicant that he had decided to vitiate the previous permissions granted to him to land and remain in Hong Kong, stating as follows:

“Having considered all the circumstances and the available information of this case, the Director is of the view that the previous permission of stay granted to your client to land and remain in the HKSAR as a visitor on 10 October 1990 and the previous permission of stay granted to your client to remain in the HKSAR on employment condition granted on 17 November 1990 and subsequent extensions of stay on employment status on 6 November 1991, 2 January 1993, 17 December 1993, 30 September 1994, 14 August 1995, 26 February 1996, 24 February 1997 should be rendered null and void as such permissions were obtained by a representation false in a material particular concerning your client’s date of birth. Your client’s subsequent unconditional stay granted since 23 December 1997 should also be rendered null and void since such permission was granted by virtue of your client’s residence covering the problematic period from 17 November 1990 to 17 November 1997. Accordingly, the permissions to land and remain granted to your client commencing on 10 October 1990 to 14 February 1998 and the unconditional stay granted to your client since 23 December 1997 are now vitiated.”

20.This was followed by another letter dated 13 May 2016 from the Director to D&A inviting the Applicant to make representations on the intended invalidation of his HKPIC.  D&A responded on behalf of the Applicant on 10 June 2016.  By a letter to D&A dated 9 January 2017, the Director maintained the view that the Applicant had never been eligible for the permanent resident status of the HKSAR, had never had the right of abode in Hong Kong and had never been entitled to a HKPIC. The Director further informed the Applicant that the Registration of Persons Office would contact him for the declaration of invalidity of his HKPIC.

21.There were some further letters exchanged between the Director/Commissioner and the Applicant (through his present solicitors, Vidler & Co (“VD”)) which it is not necessary to set out in this judgment, save to note that in a letter dated 9 May 2017 from VD to the Registration of Persons Office, VD put forward the following special circumstances of the Applicant’s case for the Commissioner’s consideration:

“[38] At the time when Mr. Roy received the Indian Passport, he was unable to understand every entry on it due to his illiteracy, but he verily believed and he had no reason to doubt the accuracy of the information on the Indian Passport. In any event, he was not aware that 6 June 1960 was not his actual birth date. This is to be considered in light of the fact that Mr. Roy left home with little education to join the touring circus at a young age of 12 after he had finished school.

[39]  According to the Record of Interview dated 12 August 2015, when asked if he understood the English spoken and written by the interviewing officer, Mr. Roy answered:

‘I can understand spoken by you but I can’t read and write English and other language.’

[40]  Mr. Roy did not have a birth certificate or any form of identification before the Indian Passport. He had no means to verify his birth of date, whether at the time of issuance of the Indian Passport or anytime thereafter.

[41]  It is also remarkable that, until late 1990, Mr. Roy had not been given actual physical possession of the Indian Passport, which was kept with the Dubai Employer or the Dubai Employer’s relatives. Therefore, Mr. Roy had little opportunity to verify the contents of the Indian Passport, either by himself or with the help of his family.

[42]  At the material time, Mr. Roy was not acquainted with the Gregorian calendar. He was only familiar with what was commonly referred to as the Hindu Calendar or the Saka Calendar, popular in his time in India. As an illustration, 2017 in Gregorian calendar is 1938 or 1939 in the Saka Calendar. The confusion is one of the explanations why Mr. Roy was not aware of his actual birth date until July 2010.

[43]  When Mr. Roy entered Hong Kong in October 1990, he was 20 years old according to his actual birth date of 24 December 1970. There was no reason for him to misrepresent his age, for employment or otherwise.…”

22.By a letter to VD dated 23 June 2017, the Commissioner maintained the view that the Applicant had never been eligible for the permanent resident status of the HKSAR, had never had the right of abode in Hong Kong and had never been entitled to a HKPIC, and enclosed a letter dated 7 January 2017 declaring the Applicant’s HKPIC to be invalid (“the Commissioner’s Decision”) pursuant to r 3D of the Registration of Persons Regulations, Cap 177A.

23.By a Notice of Appeal dated 8 August 2017 (“the Appeal”), the Applicant appealed to the Tribunal against the Commissioner’s Decision.

(v)  The Tribunal’s Determination

24.On 14 March 2018, the Tribunal heard the Appeal. On 20 May 2019, the Tribunal made its determination (“the Determination”) dismissing the Appeal.  The Determination was received by the Applicant on 24 May 2019.

25.In the Determination, the Tribunal found, inter alia, as follows:

(1)  The Applicant’s date of birth was not a “material particular” for the purpose of the Director granting his previous permissions to the Applicant to land and remain in Hong Kong between 10 October 1990 and 14 February 1998, and did not constitute a “false” representation by the Applicant within the meaning of s 42(1) of the Immigration Ordinance, Cap 115 (“the Ordinance”).  In what follows, references to “Section” or “s” shall be to the Ordinance.

(2)  Hence, the Applicant’s use or possession of the Indian Passport did not contravene s 42(2).

(3)  However, even applying a “high degree of probabilities”, the Applicant did not believe the 1960 DOB to be true at the time when he landed in Hong Kong on 10 October 1990 and during his subsequent applications for permission to remain in Hong Kong.  As a result, the Applicant’s landing (and stay) in Hong Kong was unlawful, and he was not a Hong Kong permanent resident and had never had the right of abode in Hong Kong.

26.Based on the finding in §25(3) above, the Tribunal came to the conclusion that the Commissioner was correct in invalidating the Applicant’s HKPIC, and dismissed the Appeal.

APPLICATION FOR JUDICIAL REVIEW

27.On 12 September 2019, the Applicant made the present application for leave to apply for judicial review of the Determination.

28.In the Form 86, the Applicant raises 3 grounds of judicial review:

(1)  The Determination is illegal in that, having accepted the Applicant’s date of birth is not a “material particular”, the Tribunal should have allowed the Appeal (“Ground 1”).

(2)  The Determination is irrational in that the evidence, taken as a whole, is not reasonably capable of supporting the Tribunal’s finding that the Applicant “did not believe his 1960 DOB to be true during his Landing and subsequent applications for [the] Permissions” (“Ground 2”).

(3)  The Determination is tainted with procedural impropriety, in that in concluding that the Applicant “did not believe his 1960 DOB to be true during his Landing and subsequent applications for [the] Permissions”, the Tribunal relied upon a number of matters adverse to the Applicant without giving him a fair opportunity to respond to them (“Ground 3”).

29.Pausing here, it may be noted that although the leave application was made slightly more than 3 months from the date of the Determination, no point has been taken on behalf of the Commissioner that the application should be refused on the ground of delay.  The Applicant’s explanation for delay is set out in §§82 to 85 of the Form 86.  Having regard to that explanation and the merits of the application (which I shall discuss below), I grant the necessary extension of time for the Applicant to make the present application for leave to apply for judicial review.

GROUND 3: PROCEDURAL IMPROPRIETY

30.The Applicant’s complaint of procedural impropriety is based on the fact that, in reaching the conclusion that the Applicant did not believe the 1960 DOB to be his true date of birth, the Tribunal took into account various matters without giving him a fair opportunity to respond to them.  In particular, the Tribunal draw certain adverse inferences against the Applicant based on matters stated in the Indian Court Judgment, including the fact that the Applicant had used a “School Certificate” bearing the 1970 DOB as proof of his date of birth during his extensive travelling within India between 1979 and 1986.

31.By a letter dated 21 February 2020, the Department of Justice informed the Applicant’s solicitors that the Commissioner was prepared to consent to the disposal of the present application on the basis of Ground 3 as set out in the Form 86 in the terms of a draft Consent Summons attached to that letter, which provided for the quashing of the Determination, and that the Appeal be remitted to a differently constituted Tribunal for fresh determination.  The Department of Justice further stated that the Commissioner maintained that the Applicant’s date of birth was a “material particular” and reserved his right to argue that issue at the remitted hearing before the Tribunal.  Further correspondence ensued between the parties which I do not need to set out in this judgment, save to note that no agreement on the disposal of the present application could be reached.  I shall come back to this aspect later when I consider the question of costs.

32.Ms Cheung (for the Commissioner) did not advance any argument, either in her skeleton submissions dated 18 June 2020 or oral submissions at the hearing on 23 June 2020, to resist Ground 3.  She further agreed that the Determination might be quashed, and the Appeal remitted to the Tribunal for fresh consideration on the basis of Ground 3, and invited the court to make an order accordingly.

33.In my view, the Commissioner’s concession in respect of Ground 3 is rightly made, and the Determination should be quashed on this ground.

GROUND 1: ILLEGALITY

34.Mr Pun’s argument under this ground is a straightforward one, as follows:

(1)  the Tribunal rightly concluded that the Applicant’s date of birth was not a “material particular”;

(2)  hence, (i) the Applicant did not make a false representation within the meaning of s 42(1), and (ii) it was immaterial whether the Applicant did or did not believe the 1960 DOB to be his true date of birth, and the Tribunal should not have proceeded to consider the latter question;

(3)  the previous permissions granted to the Applicant to land and remain in Hong Kong were not obtained by any representation false in a material particular made by the Applicant, and the Commissioner had failed to establish his case against the Applicant;

(4)  accordingly, the Tribunal should have allowed the Appeal.

35.It can be seen from the Determination that the Tribunal approached the question of whether the Applicant had the right of abode in Hong Kong in the following way:

(1)  The Tribunal first noted that a person not of Chinese nationality could acquire the status of Hong Kong permanent resident if he had (a) entered Hong Kong with a valid travel document, (b) ordinarily resided in Hong Kong for a continuous period of not less than 7 years, and (c) taken Hong Kong as his place of permanent residence under paragraph 2(d) of Schedule 1 to the Ordinance[1].

(2)  The Tribunal further noted that the Commissioner attacked the Applicant’s Hong Kong permanent resident status in respect of conditions (a) and (b) above.  In particular, the Commissioner relied on s 2(4)(a)(i), which provides that a person should not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong, with or without the authority of the Director, after landing unlawfully[2].

(3)  The Tribunal considered that the primary issue in the appeal was “whether the Applicant’s landing was unlawful by reason of the fact that the DOB stated under the Indian Passport was incorrect.  If the Landing was unlawful, the Appellant’s subsequent presence in Hong Kong would not be counted towards the period of his ordinary residence, even though it was with the authority of the ImmD”[3].

(4)  The Tribunal then referred to s 2(2)[4], which provides that -

“References in this Ordinance to landing in Hong Kong unlawfully are references to landing in or entering Hong Kong in contravention of this Ordinance...”

(5)  The Commissioner raised 2 arguments in support of the contention that the permissions granted by the Director to the Applicant to land and remain in Hong Kong between 10 October 1990 and 14 February 1998 (“the Permissions”) were vitiated: (i) they were obtained by an “admitted false identity”, and (ii) the permission for the Applicant to land was obtained by a representation “false in a material particular” concerning his date of birth[5].

(6)  The Tribunal rejected the Commissioner’s first argument because “the person referred to in the Indian Passport was the Applicant himself and there was no evidence of double-identity”, and there was “no evidence that the Applicant was using the identity of another person (hence false identity) when he landed in Hong Kong on the strength of his Indian Passport or during any of his subsequent applications for Permissions or [unconditional stay]”[6].

(7)  In respect of the Commissioner’s second argument, the Tribunal refers to s 42(1)[7], which provides that -

“Any person who makes or causes to be made -

(a) to an immigration officer, immigration assistant or any other person lawfully acting under or in the execution of Part IB, II, III, IV or VIIC of this Ordinance;

(b) in any document furnished to an immigration officer or immigration assistant pursuant to this Ordinance or a requirement made thereunder; or

(c) for the purpose of obtaining, whether for himself or any other person, any travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card,

any statement or representation which he knows to be false or does not believe to be true shall be guilty of an offence.”

(8)  The Tribunal noted that under s 42(5), the word “false” in that section meant “false in a material particular”[8].

(9)  The Tribunal held that the Applicant’s date of birth was not “a material particular” for the granting of the Permissions, and hence the Applicant did not make any false representation in his applications for the Permissions within the meaning of s 42(1)[9].

(10)  Nevertheless, the Tribunal held that the Applicant “did not believe his 1960 DOB to be true during his Landing and subsequent applications for [the] Permissions.  As a result, the Appellant’s Landing was unlawful.  The Appellant was not an HKPR and has never had any ROA”[10].

(11)  The Tribunal concluded that the Commissioner was correct in invalidating the Applicant’s HKPIC, and the Appeal should be dismissed[11].

36.In my view, the Tribunal’s approach and reasoning referred to in §35 above is erroneous:

(1)  The Tribunal considered that the primary issue in the appeal was whether the Applicant’s landing in Hong Kong in 1990 was unlawful by reason of the fact that the date of birth stated in the Indian Passport was incorrect[12].  In will be recalled, however, that the Director decided that the Permissions granted to the Applicant to land and remain in Hong Kong between 1990 and 1997 were vitiated by his false representation in a material particular concerning his date of birth.  For reasons which I shall further explain in §37 below, the question of whether the subsequent permissions granted to the Applicant to remain in Hong Kong between 1990 and 1997 were vitiated by false representation is also a material issue.  To be fair to the Tribunal, I should mention that in the Determination, the Tribunal did make findings on whether the subsequent permissions granted to the Applicant to remain in Hong Kong were affected by the incorrect representation regarding his date of birth[13].

(2)  In considering whether the Applicant’s initial landing in Hong Kong in 1990 was unlawful, the Tribunal asked whether the Applicant’s landing in or entering Hong Kong was in contravention of the Ordinance, in particular whether his conduct came within what was prohibited by s 42(1).  However, whether a permission granted to a person to land in Hong Kong is vitiated by a false representation does not depend on proof that the person has acted in contravention of s 42(1)[14], although in practice it is likely that a person who obtains permission to land by making a false representation would also have committed an offence under that section.

(3)  A person could contravene s 42(1) by making a statement or representation which he (i) knew to be false, or (ii) did not believe to be true[15]. The Tribunal seems to have taken the view that if the relevant statement or representation is not false “in a material particular”, the person who made the statement or representation cannot be guilty under the first limb (ie knowingly made a false statement or representation), but he can be guilty under the second limb (ie making a statement or representation not believing it to be true).  In my view, Mr Pun is correct in his submission that proof that the relevant statement or representation is false in a material particular is required for both limbs of the offence under s 42(1).

37.These having been said, the Tribunal’s view that the Applicant’s date of birth was not a material particular is, I consider, open to question.  For the present purpose, a statement or representation is material if it was likely to influence an immigration officer’s decision, or “would have resulted in further inquiries being made, which might have affected the ultimate outcome of the case”[16]. When the Director considered whether to grant permission to the Applicant to land or remain in Hong Kong, it seems to me that the Applicant’s identity must have been a relevant consideration.  Generally speaking, a person’s date of birth is part of the crucial personal information concerning his identity[17].  Like his name or nationality, a person’s date of birth is, I consider, an essential or material particular relevant to the establishment of that person’s true identity.  In the present case, the difference between the Applicant’s actual date of birth and his date of birth as shown on the Indian Passport was not a mere matter of days or months.  It is reasonably arguable that had the relevant immigration officers known that the Applicant’s Indian Passport had overstated his age by 10 years, the immigration officers would or might have carried out further inquiries to ascertain the true identity of the Applicant. Further, such information might affect the outcome of the decisions whether to grant permission to the Applicant to remain in Hong Kong to work as a chef here. As submitted by Ms Cheung, the Applicant’s age was relevant to his claimed working experience and expertise as a chef, and the relevant immigration officers might reasonably have made further inquiries before granting him permission to remain in Hong Kong to work as a chef had the Applicant’s true age been known to them.  The fact that the Commissioner did not tender an immigration officer for cross examination by the Applicant’s counsel at the hearing before the Tribunal is neither here nor there.  In any event, as recorded in §25 of the Determination, the parties were content to rest their respective cases on submissions only, and did not call any oral evidence or request the other side to tender any witness for cross-examination.

38.Since there is no dispute that the Appeal should be remitted to the Tribunal for determination, I shall leave the question of materiality of the Applicant’s date of birth for fresh consideration by the Tribunal.

GROUND 2: IRRATIONALITY

39.This ground can be dealt with briefly.  The Applicant argues that the evidence, taken as a whole, is not reasonably capable of supporting the Tribunal’s finding that the Applicant “did not believe his 1960 DOB to be true during his Landing and subsequent applications for [the] Permissions”[18]. Whether the Applicant did or did not believe the 1960 DOB to be his true date of birth at the times when he landed in Hong Kong in 1990 or applied for change of employment or extension of stay between 1990 and 1997 is a question of fact. The Applicant has a high hurdle to overcome to make good the complaint that such finding of fact by the Tribunal is Wednesbury unreasonable.  Even if one disregards those matters which the Tribunal ought not to have taken into account under Ground 3, the Applicant’s claim that he did not know, or believe, that the 1960 DOB was his date of birth is open to question.

40.In D&A’s letter to the Director dated 10 June 2016, it is stated that the Applicant “always assumed that his date of birth was 06-06-1960 until he was informed by his family and his friends in India that his date of birth on the HKSAR Passport was incorrect”, and that “in all the years that Mr. Roy used his Indian Passport and made application for the HKPIC he genuinely believed his date of birth to be June 06, 1960”. Even if one accepts the Applicant’s evidence that he was not acquainted or familiar with the Gregorian calendar in his early days when he was brought up and educated in his home village, he had worked for some periods of time in Bombay, and then in Dubai, prior to arriving in Hong Kong in 1990.  Further, he lived and worked in Hong Kong for 7 years between 1990 and 1997 and made a number of applications for change of employment or extension of stay during that period of time.  It is likely that he would have come across and become familiar with the Gregorian calendar during that period of 7 years while he was living and working in Hong Kong.  It has not been suggested that the Applicant did not understand the concepts of “year/month/day”, “age” or “date of birth” during that period of time.

41.In these circumstances, I do not consider that the evidence before the Tribunal was not reasonably capable of supporting the Tribunal’s finding that the Applicant did not believe the 1960 DOB to be his true date of birth at the material times.  Again, this is an issue which should be left to the Tribunal for fresh consideration.

DISPOSITION

42.I grant to the Applicant (i) an extension of time to apply for leave to apply for judicial review, and (ii) leave to apply for judicial review, and allow the substantive application for judicial review.  I make an order of certiorari to bring up to the High Court and quash the Determination, and remit the Appeal to a differently constituted Tribunal for fresh consideration in accordance with this judgment.

43.On the question of costs, the present application could have been disposed of on the basis of Ground 3 alone as proposed by the Department of Justice in its letter of 21 February 2020 without a hearing.  I consider the Applicant’s criticism of the Tribunal’s interpretation and/or application of s 42(1) under Ground 1 to be justified, although I do not see that the resolution of that issue has resulted in any clear or material benefit to him.  On the other hand, I have rejected Ground 2.  On 17 April 2020, the Department of Justice informed the Applicant’s solicitors that it would be prepared to advise the Commissioner to agree to pay the Applicant’s costs up to 21 February 2020 if the Applicant agreed to dispose of the application by consent as previously proposed, but the Applicant did not agree to that course of action.  In all the circumstances, I consider that the fair order to make would be that the Commissioner shall pay the Applicant’s costs up to 17 April 2020, to be taxed if not agreed, and there shall be no order as to costs as from 18 April 2020.  I so order.

44.The Applicant’s own costs shall be taxed in accordance with legal aid regulations.

Mr Hectar Pun, SC and Mr Anson Wong Yu-yat, instructed by Vidler & Co, assigned by Director of Legal Aid, for the Applicant

The Respondent, absent

Ms Jenny Cheung, SGC (Ag.), instructed by Department of Justice, for the Interested Party