Huang Bingzhi v. Immigration Tribunal and Another

CACV000357/2001

CACV 357/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 357 OF 2001

(ON APPEAL FROM HCAL 1718 OF 2000)

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Coram: Hon Mayo VP and Woo JA in Court

Date of Hearing: 17 January 2002

Date of Judgment: 23 January 2002

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1.The applicant applied to Yeung J for leave to judicially review the decision of the Director of Immigration (the Director) who failed to acknowledge that he enjoys a right of abode in Hong Kong and ordering his removal from Hong Kong.

2.The applicant who was born in Guangdong Province in 1960 came to Hong Kong in November 1992 on a passport issued by the People's Republic of China as an imported worker under the general labour scheme. He was permitted to stay in Hong Kong for a period of two years which expired on 1 November 1994.

3.On 14 December 1993 he was seriously injured while at work. He was hospitalized and later received physiotherapy treatment at the Lady Trench Rehabilitation Centre.

4.The applicant commenced legal proceedings against his employers in respect of the injuries he sustained.

5.The Director granted him a number of extensions to remain in Hong Kong after 1 November 1994. This was for the purpose of receiving medical treatment and for prosecuting his legal action.

6.When the applicant applied for an extension of stay on 1 November 1994 he was granted an extension to February 1995 on the basis that he was a visitor. Extensions granted to him after this date were made on this basis. The final extension granted was up to 28 September 1999. He was given until 2 October 1999 to leave Hong Kong.

7.He did not leave on 2 October. On 12 October he made an application to judicially review the Director's refusal to grant him any further extension and claimed that he had acquired the rights of a permanent resident of Hong Kong by virtue of having resided in Hong Kong for seven years. This was the applicant's first application for judicial review. It was dismissed by Yeung J.

8.On 20 April 2000 the Director made a removal order against the applicant. The applicant lodged an appeal from this order to the Immigration Tribunal.

9.This appeal was based upon the circumstances surrounding the application that the applicant made to the Director for an extension of stay on 10 September 1999. On that occasion he attended at the Immigration Department and on lodging the requisite form he was given a document which was in these terms:

"Immigration Department, Hong Kong

Section/Office: Entry Visa Section

Application Reference: VC/W/316799/92

Date of Application: 10th September 1999

Name: HUANG Bingzhi

Please call again before 10th November 1999 with this card. We will notify you by letter when to call again.

All enquiries should be made direct to the Information Office (with telephone, fax, e-mail address and internet home page supplied).

Then there are handwritten on it at the bottom, '$135.00' and a (telephone) number '28294122 Officer Kwok'."

10.The applicant contended that this document constituted a valid notice in writing extending his right to remain in Hong Kong until 10 November 1999. He went on to argue that the Director had no power to shorten his period of stay as this power was only exercisable by the Chief Executive. For this purpose he placed reliance upon the provisions contained in section 11(5A) of the Immigration Ordinance Cap. 115. This being the case the extensions of time granted on 28 September and 2 October 1999 were ultra vires.

11.Yeung J was not satisfied that the applicant had an arguable case that the card issue by the Director on 10 September 1999 could be regarded as being any authority for the applicant to remain in Hong Kong.

12.The Judge also went on to consider whether there was any possibility of the applicant being able to argue that he was entitled to remain in Hong Kong by virtue of his having resided here for seven years. This strictly speaking was superfluous as the decision which is the subject matter of this contemplated judicial review was not concerned with these extraneous issues. Having regard to the grounds of appeal being advanced it is desirable to make brief comment.

13.As in the first application for judicial review the main problem encountered by the applicant in making good a claim that he had ordinarily resided in Hong Kong for seven years was that section 2(5) provided that a right acquired by virtue of section 2(4)(a) is excluded for this purpose.

14.In any event the applicant would not have been able to acquire a right under section 2(4)(a) as the subsection is specifically stated not to apply to a person employed as a contract worker who is from outside Hong Kong under a Government importation of labour scheme.

15.In the grounds of appeal which have been lodged by the applicant it is contended that the Judge was wrong to conclude that section 2(4)(a)(v) had a retrospective effect and consequent upon this he failed to consider that the applicant had an accrued right or interest as an ordinary resident during the period from 1992 to 1995.

16.The statutory provisions are entirely clear. The contentions which the applicant seeks to advance are unarguable.

17.The same can be said concerning the card which was issued to the applicant by the Director on 10 September 1999. There can be no doubt that the Judge was right to hold that it was not arguable that this card was intended to grant any extension of stay to the applicant.

18.For the reasons which have been given this appeal is dismissed. There be an order nisi that the Director is to have his costs.

Representation:

Applicant in person.

Mr William R. Marshall, SC and Mr Lee Ting-yan, GC, instructed by the Secretary for Justice, for the 2nd respondent.