Read the full judgment text of CACV 000064/1988 on BabelCite. This Court of Appeal judgment was delivered on 12 October 1988 before Yang CJ, Silke VP, Kempster JA.
Immigration law – right of abode – Hong Kong permanent resident – definition under s.2 and paragraph I of the First Schedule, Immigration Ordinance (Cap 115) – Chinese race – seven years' continuous ordinary residence – Immigration Officer's power under s.11(5A)(c) to enlarge 'limit of stay' – meaning of 'in force' – whether enlargement can be granted after expiry of limit of stay – whether retrospective enlargement cures period of overstay for computation of residence – Thai national of Chinese race entering Hong Kong in 1978 on one-month visitor's permit – successive student permits extended twice yearly – three extensions granted only after expiry of limit of stay – final extension to 13 August 1986 – arrest for breach of condition of stay under s.41 – removal order – Immigration Tribunal rescinds removal order holding appellant a Hong Kong permanent resident – judicial review by Director of Immigration – certiorari granted by Liu J and matter remitted – appeal to Court of Appeal – first issue: whether s.11(5A)(c) permits enlargement of limit of stay after expiry – held yes, the phrase 'at any time' is not one of limitation and 'in force' denotes the legal consequences attaching to the limit of stay rather than its temporal currency – interpretation consistent with s.41, under which a person can only contravene a condition of stay after expiry – English authorities on differently worded statutes (Suthendran (1977) AC 359; Subranamian (1977) 1 QB 190) of limited assistance – second issue: whether retrospective enlargement cures any period of overstay – held yes, enlargement of the original limit treats it as a single continuous period so that 'there had been breaks but these are now healed' – appellant held to have been ordinarily resident for a continuous period well over seven years and therefore a Hong Kong permanent resident under s.2A – appeal allowed – orders of Liu J set aside – ruling (a) of Immigration Tribunal restored – order nisi for costs in appellant's favour – order for legal aid taxation of appellant's costs.
Legal issues: Power of immigration officer to enlarge limit of stay after expiry under s.11(5A)(c) Immigration Ordinance · Effect of retrospective enlargement of limit of stay on computation of ordinary residence
Outcome: Appeal allowed; orders of Liu J set aside; ruling (a) of the Immigration Tribunal restored, holding the appellant to be a Hong Kong permanent resident.