Director of Immigration v. Sea-ang Paisarn

CACV000064/1988

Headnote

Immigration Ordinance - Section 11(5A)(c) - Immigration Department's power to grant enlargement of length of stay after expiry of permit of stay - effect of such enlargement.

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Coram: Hon. Yang, C.J., Silke, V.-P. & Kempster, J.A.

Dates of hearing: 20 & 21 September 1988

Date of judgment: 12 October 1988

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J U D G M E N T

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Hon. Yang, C.J.:

1. The appellant is a Thai national of Chinese race. He has been resident in Hong Kong since 1978.

2. He was arrested as an overstayer in September 1987. On 3rd November, 1987 the Director of Immigration made a removal order against him. Pending his removal from Hong Kong, he appealed to the Immigration Tribunal. The Tribunal considered him to be a Hong Kong permanent resident within the meaning of Section 2 of the Immigration Ordinance (see also para. 1 of the First Schedule thereto: infra) and rescinded the removal order made against him. It was this ruling by the Immigration Tribunal that formed the subject matter of an application before Liu, J.

3. On 26th April, 1988 the laarned judge granted the application by the Director of Immigration for an order of certiorari by way of judicial review. He made two orders. The first order was for the decision of the Immigration Tribunal to be removed forthwith into the Supreme Court and thereafter be quashed. The second order was that the matter be remitted to thc Immigration Tribunal with the direction that the same be reconsidered and a decision reached in accordance with the learned judge's judgment.

4. The appellant was born on 23rd December 1968. Prior to 2nd October, 1978, he visited Hong Kong twice on a Thai passport in the name of Sae-Ang Vichai, but each time he was repatriated to Thailand when he overstayed. On 2nd October, 1978 he came to Hong Kong on another Thai passport under the name of Sae-Ang Paisarn on a visitor's permit for a stay of one month. After the expiry of that permit he was granted a six-months' student permit on 28th November, 1978. Between 1979 and 1984 his student permit was extended twice each year. In 1985 it was extended once. In 1986 it was again extended once, for the last time, to 13th August, 1986. He made no further applications for permission to stay after the expiry of the 1986 permit and on 16th September, 1987 he was arrested for being in breach of a condition of stay contrary to Section 41 of the Immigration Ordinance.

5. Except for three occasions when an extension was applied for after the expiry of his limit of stay it appears that his applications for extension were all made when his limit of stay was still valid. The three exceptions occurred on 14th September, 1983, 17th April, 1984 and 19th August, 1985 respectively. All the extensions were granted after the expiry of his limit of stay. Thus, on each occasion a period of time elapsed before an extension was granted.

6. The learned judge stated the issue in the case in the following terms:

"The central issue is whether on account, of his race and by his continued presence in Hong Kong since 1978 Mr. Hung (i.e., the appellant) has, in the light of his regular, applications in or out of time up to the last, acquired the status of a Hong Kong permanent resident so as to be able to enjoy the right of abode in Hong Kong with the attendant privileges under Section,2A of the Immigration Ordinance."

7. In this appeal we are concerned with only two of the judge's findings, viz.:

(1)    that there is no statutory power vested in the Immmigration Off icer to vary a limit of stay unless it is still in force;

(2)    that the appellant did not qualify as a Hong Kong permanent resident because none of his overstay periods could be included in the computation of the seven years under papa. I of the First Schedule to the Immigration Ordinance.

8. By Section 2A of the Immigration Ordinance, a Hong Kong permanent resident enjoys the right of abode in Hong Kong and has the right, inter alia, not to have a removal order made against him. By Section 2 and the First Schedule, a Hong Kong permanent resident is a person who is wholly or partly of Chinese race and has at any time been ordinarily resident in Hong Kong for a continuous period of not less than seven years.

9. Section 11(5A)(c) of the Immigration Ordinance provides:

"An immigration officer may at any time by notice in writing to any person other than a person who enjoys the right of abode in Hong Kong, or has the right to land in Hong Kong by virtue of section 8(1) vary any limit of stay in force in respect of such person by enlarging the period during which such person may remain in Hong Kong."

10. The judge construed the section to mean that a limit of stay may not be varied or enlarged except when it is still "in force", i.e., before it has expired. He did not say so in his judgment but I expect he would have construed the phrase "at any time" to mean that an immigration officer may at any time when the limit of stay is still "in force" vary it by notice in writing. There is, in his view, no statutory power to "extend 'a limit of stay' after it has ceased to exist", i.e., after it has expired. It should be noted here that whilst the Immigration Department consistently used the word "extend" or "extension" in their successive permissions to the appellant to remain in Hong Kong, it is not disputed that "extend" and the word "enlarge" used in the relevant section are synonymous for the purpose of this case.

11. The judge's interpretation, attractive though it appears to be at first sight, is inconsistent with section 41 which reads:

"Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for 2 years."

12. Now, by Section 2, "limit of stay" means a condition of stay limiting the period during which a person may remain in Hong Kong. A limit of stay is a condition of stay.

13. Clearly a person cannot contravene a limit of stay before its expiry. The contravention must take place after the time limit has run out. If "in force" means that the limit of stay must still be extant, then Section 41 does not make sense. "In force" must mean something else. In his judgment, the learned judge observed, "under Section 41 of the Immigration Ordinance, any person who contravenes a condition of stay in force (not, be it observed, a limit of stay in force) shall be guilty of an offence".  With respect, it is perhaps due to this confusion that the judge construed Section 11(5A) (c) as he did.

14. Mr. Litton's submission on behalf of the appellant, which I accept, is that the phrase "in force" in Section 11(5A) (c) simply denotes the legal consequences which might flow from the limit of stay, e.g. when a person overstays after his limit of stay has expired. It is his contention that in the appellant's case it was the limit of stay first given to him which remained in force in respect of him consequent upon the enlargement of that limit given to him from time to time.

15. The phrase "at any time" used in Section 11(5A) is not one of limitation. The immigration officer may therefore "at any time" vary a limit of stay whether before or after its expiry.

16. A number of authorities were cited to support the judge's findings, notably Suthendran (1977) AC 359 and Subranamian (1977) 1 QB 190. These were decided on English Acts quite different in wording from the Hong Kong ordinance. I do not think they are of very great assistance.

17. In my judgment, an immigration officer may vary a limit of stay by enlarging it at any time, either before or after its expiry. This proposition may be tested in another way. The appellant was not obliged by law to apply for an enlargement before the expiry of his limit of stay, though undoubtedly it would be wise for him to do so. He could wait until the last day of his limit of stay before going to the Immigration Department to make his application. The Immigration Department might well require a few days to process his application. In those circumstances it is inconceivable that the Ordinance would permit the Department to say to the appellant, "Though your application was made in time, but because we took a few days to examine your application, we are now precluded from granting it." or, "We will now prosecute you under Section 41." Even if the application was made after the expiry of the limit of stay, the Immigration Department would still be able to vary it. The Ordinance makes no distinction between an application made before and one made after the expiry of the limit of stay.

18. The second question which calls for consideration is whether or not by varying or enlarging a limit of stay, the period of overstay is thereby cured of any unlawfulness. Mr. Litton repeats his argument that on each occasion when the appellant was granted an extension or enlargement of the limit of stay, it is tantamount to an extension or enlargement of the limit first imposed when the appellant was first granted permission to land or to remain in Hong Kong on 2nd October 1978 under Section 11(2) (a).  Thus the limit of stay first imposed was, by subsequent acts of the Director of Immigration, enlarged until 13th August 1986. It is true that on each occasion when the limit of stay had expired, and before an enlargement was granted, the appellant was apparently in breach of that limit of stay and thus liable to prosecution under Section 41 (supra). However, Mr. Litton contended, once it was enlarged the appellant was no longer in contravention of his condition of stay and could no longer be prosecuted for breach of a condition of stay. Once the limit of stay was enlarged, no gap in time existed in the total period of the appellant's presence in Hong Kong. It is as if when the appellant landed on the 2nd October 1978, the limit of stay was imposed to expire on 13th August 1936. In counsel's words, "There had been breaks but these are now healed".

19. I accept the submission. In my judgment the respondent has been ordinarily resident in Hong Kong for a continuous period of well over seven years.

20. For the reasons given above, I would allow the appeal, set aside the orders appealed from, and restore ruling (a) of the Immigration Tribunal.

Silke, V.-P.:

21. I agree and for the reasons given by My Lords that this appeal should be allowed: that ruling (a) of the Immigration Tribunal be restored: that there be an order nisi that the appellant do have his costs and that there be the necessary order for legal aid taxation.

Kempster, J. A. :

22. We are presently concerned to determine whether or not the appellant is and at the material times was a Hong Kong permanent resident enjoying the right of abode in the territory explained in section 2A(1) of the Immigration Ordinance (Cap 115). So to qualify he must have been wholly or partly of Chinese race which is accepted, and which is not, at any time have ordinarily been resident in Hong Kong for a continuous period of not less than seven years. Section 2(1) and paragraph I of the First schedule. The burden of proof rests on him. Section 64(b)

23. The appellant, then aged some 10 years, arrived in the Territory on 2 October 1978 and, as the indorsement on his Arrival Card shows, was permitted by the Immigration Department to remain until 2 November following as a visitor. We assume that he was, impliedly at least, permitted to land. He has lived, attended schools and worked here ever since. On 28 November, as the indorsement on his Extension Card shows, that permission was extended, lawfully or unlawfully, retrospectively and on the basis that he was a student, until 28 May 1979. Subseguent such indorsements show further retrospective extensions until 13 August 1986. Having regard to the wording they can only have been granted, lawfully or unlawfully, pursuant to section 11(5A)(i). If the retrospective extensions were lawful he had, therefore, ordinarily been resident in Hong Kong for a continuous period of seven years by 3 October 1985. If the retrospective extensions were ultra vires the Director, however, he could not have been so resident since there were substantial periods during which his presence in the territory was unlawful in that the limits of stay would incurably have been contravened. Section 2(4) (a) (ii). Unlike a Vietnamese refugee in like circumstances he would not be deemed to have landed unlawfully into the bargain. Section 13A(4A).

24. It is common ground that only one of the three findings upon which the Tribunal based its decision warrants serious argument; the other two being insupportable. The material determination, under @, was that the appellant enjoyed the right of abode in Hong Kong under section 2A.

25. Section 7 prohibits the entry into the territory without the permission of an immigration officer or assistant of any person not born in Hong Kong who does not enjoy either a right of abode or a right to land and is neither a member of the crew of an aircraft nor a serviceman. If and when permission is  granted, and even if it has not been if the Director of Immigration so authorises, conditions may be imposed which, for example, may limit the period during which the person may remain in Hong Kong. This is described as "a limit of stay". At any time, by notice in writing an immigration officer may enlarge that period providing that the limit of stay is "in force" at such time. Sections 2(l'),''11(2) and (5A) (c) and 13. The discretion conferred on the officers of the Immigration Department is wide though subject to the directions of the Governor and of the Director made pursuant to sections 51 and 52 respectively. In any event the exercise of the discretion must be intra vires the legislation as the words "- under this ordinance -" make plain. No reservation is made with respect to the Royal Prerogative by analogy with section 33(5) of the Immigration Act 1971.

26. The outcome of this appeal effectively turns on the meaning to be attributed to the expression "in force". For the Director of Immigration it was successfully contended before Liu J and is now contended before us that it means "which" has not expired"; if the section he considered in isolation a compelling resolution of such ambiguity as derives from the presence of the other governing words "at any time". But the terms of the Extension Cards relating to the appellant, already referred to, suggest that the Department, perhaps disenchanted by his cavalier attitude to authority, only adopted this construction early in 1988 when seeking judicial review of the decision of the Immigration Tribunal.

27. For the appellant the meaning suggested, which permits of retrospective extension, is "until" cancelled by the Governor or until the person is exempted from compliance by the Director or until the person has departed these shores". Section 11(7) (a), (9) and (10). Authorities on the construction of differently worded English statutes, albeit relating to the same subject matter, are of no great assistance.

28. I share the opinion of the Chief Justice that the material intention of the legislature is demonstrated by the provisions of section 41 which read :

"Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for 2 years".

A person who overstays cannot contravene a limit of stay until it has expired and, therefore, ceased to be "in force" in the sense which the Director would have us accept. But, as Mr Strawbridge on his behalf concedes and asserts, such person is none the less guilty of an offence under the section. On the other hand a person can contravene a limit of stay which is in force in that it has not been cancelled or been the subject of exemption or as determined by reason of his earlier departure from Hong Kong. The Extension Card or Cards, as the case may be, remains or remain the definitive statement as to his status in the Territory. Like considerations apply to section 13A(4A). It cannot be thought that the legislature intended the words "in force" to be construed in one sense in relation to these sections and in another in relation to section 11.

29. The matter can further be tested by reference to practicalities. If a person wishes the Director to enlarge the period during which he may retain in Hong Kong he will, after quite elementary thought processes, make an application to that end before the expiry of his limit of stay albeit time of application forms no part of the statutory scheme. But the Director and his staff cannot be expected necessarily at once to apply their minds to such application. The limit of stay may well have elapsed by the time they give him, if they do, a favourable written response. If the notification is ineffective by reason of the affluxion of time the purpose of the legislation will stand frustrated. Hence the practice adopted since the date of the judgment of Liu J of granting temporary extensions as a matter of course on receipt of timeous applications and pending considered determination. I do not think that the legislation calls for improvisation of this nature. For the purpose of the Immigration Ordinance "in force" is to be construed in the way the appellant submits.

For the foregoing reasons and those given in the judgment of the Chief Justice with which I agree, I too would set aside the judgment and order of Liu J and restore determination @ of the Immigration Tribunal. I would also make orders for costs nisi in the appellant's favour and for the legal aid taxation of his own costs.

Representation:

Henry Litton QC & Vivian Chik William Au & Co) for Appellant

N L Strawbridge (Legal Department) for Respondent