Huang Bingzhi v. Immigration Tribunal and Another
Read the full judgment text of CACV 357/2001 on BabelCite. This Court of Appeal judgment was delivered on 23 January 2002 before Mayo VP, Woo JA.
Administrative law – judicial review – leave to apply for judicial review – immigration – right of abode – Immigration Ordinance Cap 115 – imported worker under general labour scheme – work injury sustained December 1993 – extensions of stay granted on visitor basis for medical treatment and to prosecute civil claim against employers – application for further extension on 10 September 1999 – handwritten card from Immigration Department requesting applicant to call again before 10 November 1999 with fee and officer's telephone number – whether card constitutes valid written notice extending right to remain – section 11(5A) Immigration Ordinance – whether Director of Immigration has power to shorten period of stay – whether such power exercisable only by Chief Executive – whether shortening was ultra vires – first judicial review application dismissed – removal order made April 2000 – appeal to Immigration Tribunal – second judicial review application – refusal of leave by Yeung J – appeal to Court of Appeal – whether contentions arguable – seven-year ordinary residence rule – section 2(4)(a) – section 2(5) – exclusion of contract workers imported under government labour scheme from seven-year calculation – applicant contended section 2(4)(a)(v) had retrospective effect creating accrued right between 1992 and 1995 – statutory provisions entirely clear – all contentions unarguable – appeal dismissed – order nisi that Director has costs
Legal issues: Validity of immigration card as written notice extending stay under s.11(5A) of the Immigration Ordinance · Seven-year ordinary residence right of abode for imported contract worker
Outcome: Appeal dismissed; the applicant had no arguable case on any ground and the refusal of leave to apply for judicial review was upheld.
Cited by 22 cases
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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) ______________
______________ Coram: Hon Mayo VP and Woo JA in Court Date of Hearing: 17 January 2002 Date of Judgment: 23 January 2002 _______________ J U D G M E N T _______________ 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:
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. |