李榮歡 v. 人事登記審裁處

HCAL 1377/2022

[2023] HKCFI 838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1377 OF 2022

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D E C I S I O N

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A.  Background

1.By Form 86 dated 30 November 2022, the Applicant (who acts in person) seeks leave to apply for judicial review to challenge the decision of the Registration of Persons Tribunal dated 31 August 2022 (“Decision”), which confirmed the Commissioner of Registration’s prior decision to revoke the Applicant’s Hong Kong permanent identity card (“PIC”) which he had held since 2010 or 2011, and which ruled that the Applicant did not have the right of abode in Hong Kong.

2.The intended challenge comes about in the following circumstances.

3.The Applicant is a Chinese national born in the Mainland in 1965. On 25 June 2003, he was issued a one-way permit by the Mainland authority. On 23 July 2003, he was permitted to land in Hong on the strength of that permit. In 2010, he applied for a PIC and was issued one upon the registration officer being satisfied that he had been ordinarily residing in Hong Kong for not less than 7 years.

4.The Applicant’s one-way permit was issued on the basis of enabling his reunion with his wife, Madam Tang, who is a permanent Hong Kong resident. The couple married in 1996.

5.However, in 2016, the Director was informed by the Mainland authority about its discovery that the Applicant had already divorced Madam Tang before the one-way permit was issued, but had concealed such fact from the authority. The Mainland authority revoked the one-way permit and requested the Applicant’s repatriation to the Mainland.

6.By decision dated 12 September 2017, the registration officer decided that the permission to land, obtained on the strength of the one-way permit, should be treated as null and void and invalidated the Applicant’s PIC.

7.The Applicant appealed to the Tribunal. By its decision dated 31 August 2022, the Tribunal dismissed the appeal.

8.On 30 November 2022, the Applicant filed his Form 86 seeking the return of his PIC and a declaration that he has right of abode in Hong Kong. Though it is not entirely free from doubt, it is tolerably clear from the Form 86 that the decision the subject of intended challenge is the Tribunal’s decision. On a fair reading of his proposed grounds of review as set out in his supporting affirmation and the supplementary materials he filed into Court, it is more clear that the decision he seeks to impugn is that of the Tribunal. In any event, the Commissioner’s decision is not amenable to judicial review due to the existence of the statutory appeal route.

9.As to be expected, the Tribunal asked to be excused and took no part in the proceedings.

10.On 30 December 2022, I gave directions for the Director and the Commissioner as the Putative Interested Parties to file an initial response and the Applicant to file a reply, if any. I indicated that, depending on the parties’ submissions, the applicant may be dealt with on paper without further notice. The deadlines for both sides’ submissions were subsequently extended to 17 February 2023 and 10 March 2023.

11.The Putative Interested Parties, represented by Mr Frenki Fung, Senior Government Counsel (Ag.), filed an initial response on 17 February 2023. The Applicant filed a set of submissions and supporting documents on 19 January 2023, which, albeit are not strictly a reply since they predated Mr Fung’s submissions, were also filed within time.

12.Having considered all available materials, I consider it appropriate to deal within this application on paper.

13.This is my Decision.

B.  Potential Delay of Determination

14.For completeness, I should note that the Applicant had asked the Court to postpone delivering a decision on his application, but I see no sufficient reasons to do so in this case.

15.The request to postpone was made by the Applicant’s letter dated 9 January 2023. Apparently, the Applicant earlier applied for legal aid but was rejected. The Applicant then appealed against the legal aid refusal and the appeal hearing was originally set for 17 March 2023. He said he had applied to the Bar Association’s Free Legal Service Scheme (where it appears the assistance is sought in relation to the legal aid appeal). He also said that he was also in the process of collecting documents in the Mainland.

16.By letter dated 17 March 2023, the Applicant informed the Court that his legal aid appeal fixed for 17 March 2023 had already been vacated, and had to the re-scheduled. He also said his application to the Bar Association Free Legal Service Scheme had already been accepted for handling. He asked the Court to postpone deciding this application pending his legal aid appeal.

17.He attached a letter dated 15 March 2023 issued by the Legal Aid Department to himself. The department said it was informed by the High Court that the 17 March 2023 hearing had been vacated and requested the Applicant to inform the department as soon as he received a reply from the Bar Association for the purpose of re-fixing the hearing. As stated, it appears that the application for the Free Legal Service Scheme was to aid his legal aid appeal and the hearing was vacated at the request of the Applicant.

18.I am also informed that the Applicant asked for legal aid on 31 August 2022 which means any automatic 42-day stay as might have been applicable to these proceedings (which were in any event launched somewhat later) would have long ago lapsed, and in any event his legal aid application had already been rejected.

19.Though in some situations, a different decision might be reached when there is a pending legal aid appeal, in this case there is no reason to delay the resolution of this application simply because the Applicant is in the process of appealing against his legal aid refusal. I agree with Mr Fung that generally any challenge to administrative decision should be dealt with in an expeditious manner.

20.In exercising my discretion to deal with the application now, and not to postpone my decision any further, I have also taken into account my view of the merits of the application (see below).

C.  The Law on Permanent Identity Card

21.Regulation 3(2) of the Registration of Persons Regulations Cap 177A (“Regulations”) provides that if a registration officer is satisfied that a person who has applied for a PIC enjoys the right of abode in Hong Kong, the officer shall issue a PIC to such person.

22.Persons enjoying the right of abode in Hong Kong are the permanent residents of Hong Kong: see section 2A of the Immigration Ordinance Cap 115 (“IO”). The categories of persons who are permanent residents of Hong Kong are set out in §2 of Schedule 1 to the IO. Relevant to the present purpose is the category provided in §2(b): “a Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region”.

23.The meaning of ordinary residence is defined in §2(4) of the IO. Relevantly, §2(4)(a)(i) provides that a person shall 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.

24.The Applicant’s PIC was originally granted under §2(b) of Schedule 1 of the IO, on the basis that he was a Chinese citizen who had ordinarily resided in Hong Kong for 7 years after he had lawfully entered Hong Kong on the strength of his one-way permit.

25.However, in 2017, having received the information from the Mainland authority, the registration officer decided that the permission to land granted was vitiated and, thus, the landing was unlawful and the subsequent period of remaining in Hong Kong would not constitute ordinary residence. The registration officer declared that the Applicant had never had the right of abode and invalidated his PIC. The power exercised by the officer is authorized by regulation 3D(1) of the Regulations, which provides that where a registration officer is satisfied that a person to whom a PIC has been issued no longer has, or never had, the right of abode in Hong Kong, he may declare the PIC to the invalid.

26.Section 3D(1) of the Registration of Persons Ordinance Cap 177 (“RPO”) allows a person aggrieved by the decision of the registration officer to invalidate a PIC to appeal to the Tribunal. Section 3D(4) of the RPO provides that:

An appeal under subsection (1) may only be brought by a person on the ground that on the facts of his case he enjoys the right of abode in Hong Kong and shall succeed if, and only if, the Tribunal determines that he has that right.

27.Thus, the Tribunal does not “review” the decision of the registration officer in the exercise of his power to invalidate the PIC. Rather, the Tribunal has to make an independent assessment of the facts and decide for itself whether the appellant did or did not have the right of abode: see Li Su Shan v Director of Immigration [2002] 4 HKC, where Hartman J had to construe a comparably worded section 53D(1) of the IO in the context of an appeal against a removal order to the Tribunal.

28.Regulation 21(2) of the Regulations also puts the burden on the appellant, when he appeals against the decision of a registration officer to the Tribunal, to prove that he has the right of abode in Hong Kong or is entitled to a PIC.

D.  Tribunal’s Decision

29.The Tribunal’s analysis is in §§33-38 of the Decision. The original is in Chinese:

33. 於Kong Sau Mei v Director of Immigration [1999] 1 HKC 174一案中，高等法院原訟庭祁彥輝法官說明，若獲准進入香港境內之准許是基於一本非獲取的護照而獲得，入境者入境時其實並無得到准許，發出准許的入境處人員是被欺騙了，而該案申請人的入境准也會因欺詐而失效。

34. 上訴人與鄧女士在1999年離婚後，已失去以夫妻團聚名義申請單程證赴港定居的資格，內地有關公安機關亦因此宣布撤銷其編號Q00088387的單程證。

35. 由於上訴人的單程證被撤銷，他憑藉該單程證而取得的一切入境許可及獲准在港逗留的批准均屬無效，他應被視為從未獲得入境處處長的准許在香港入境或逗留，即非法入境。根據該條例第2(4)(a)(i)條的規定，任何於非法入境後不論是否得到處長授權而留在香港，都不得被視為通常居於香港。因此，上訴人自2003年7月23日起在港逗留的期間不得被視為通常居於香港，他亦從未符合該附表第2(b)段的規定，不具資格成為香港特區永久性居民。

36. 答辯人無責任查明在廣東出入境管理局發給人境處的信函的結論作出決定，宣布上訴人的入境許可及獲准在港逗留的批准均為無效 (見Choi Ka Tak v Director of Immigration, unreported, HCAL 97/2007, 23 July 2008; and Wong Ka Hin v Director of Immigration, unreported, CACV 1937/2001, 25 January 2005)。

37. 上訴人的代表律師請求審裁處考慮上訴人的個人情況。必須強調的是，審裁處沒有權限行使任何酌情權，必須根據個案事實裁定上訴人的上訴是否得直。

38. 另外，上訴人指他於2005年才知道自己與鄧女士已正式離婚，而他沒熟悉香港的離婚法律，因此不知道在2003年申請單程證時，他的婚姻狀況已變更為離婚。由於上訴人以夫妻團聚名義申請單程證，上訴人不能以不熟悉香港離婚法律為藉口。

33. In Kong Sau Mei v Director of Immigration [1999] 1 HKC 174, Keith J stated that if permission to land in Hong Kong was given on the basis of an unlawfully obtained passport, then indeed the entrant was not given the permission to land when he entered Hong Kong. The immigration officer who granted the permission to land was deceived and the permission granted would lose its effect by virtue of the deception practiced on the officer.

34. The appellant has already become ineligible to apply for the one-way permit on the basis of spousal reunion after he had divorced Madam Tang in 1999. The relevant authority in the mainland had also revoked the one-way permit.

35. Since the appellant’s one-way permit was revoked, the permission to land and remaining in Hong Kong granted on the strength of that permit would also lose their effects. The appellant should be treated as if he had never obtained from the Director the permission to land or to remain in Hong Kong. In other words, he had landed in Hong Kong unlawfully. His period of residing in Hong Kong following such unlawful landing thus would not amount to ordinary residence under section 2(4)(a)(i) of Cap 115. Thus, the appellant’s period in Hong Kong since 23 July 2022 should not be considered as ordinary residence in Hong Kong. The appellant did not meet the 7 years of ordinary residence requirement under §2(b) of Schedule 1 of Cap 115.

36. The Director had no responsibility to look into the bases upon which the mainland authority reached its conclusion. The Director could rely on the conclusion as reached by the mainland authority and declare that the permission to land and remaining in Hong Kong previously given were invalid. (See Choi Ka Tak v Director of Immigration, unreported, HCAL 97/2007, 23 July 2008; and Wong Ka Hin v Director of Immigration, unreported, CACV 1937/2001, 25 January 2005.)

37. The appellant’s lawyer pleaded for the Tribunal to take into account his personal circumstances. It is worth emphasis that the Tribunal has no discretion in this regard and must decide the appeal based on the facts.

38. Furthermore, the appellant said he did not know that he had been divorced from Madam Tang until 2005 and he was not familiar with the relevant Hong Kong law on divorce. Therefore, he did not know that his marital status had changed in 2003 when he applied for the one-way permit. When the appellant applied for the one-way permit on the basis of spousal reunion, his marital status had already rendered him ineligible to make the application. The appellant could not hide behind the excuse of unfamiliarity with the law.

30.The Tribunal examined all the other categories under §2 of Schedule 1 and concluded that none of them could assist the Applicant.

E.  Further Background

31.A few further facts are necessary to understand the Applicant’s proposed grounds of review.

32.It was undisputed that the Applicant’s marriage to Madam Tang had already been dissolved by the order of the Hong Kong courts in 1999, before the issuance of the one-way permit in 2003. It was also not contested that from the time of the application up to 2003 when the one-way permit was issued, the Applicant did not disclose the dissolution of the marriage to the mainland authority.

33.But it was disputed whether the marriage was still subsisting at the time of the application, because the time of application itself was disputed.

34.As said, the Applicant came to settle in Hong Kong in 2003 and was granted a PIC in 2011 on the basis that he had ordinarily resided in Hong Kong for 7 years.

35.By letter dated 19 April 2016, the Guangdong Provincial Public Security Department (“GPPSD”) issued a letter to the Director, stating that their investigation had shown that the Applicant was ineligible to settle in Hong Kong on the basis of spousal reunion. In concluding the Applicant’s ineligibility, the GPPSD referred to (a) the facts that he had divorced Madam Tang in 2000, but had applied for the one-way permit on the basis of reuniting with Madam Tang in 2001; and (b) the “Provisional Measures for the Control of Chinese Citizens Entering and Leaving the Regions of Hong Kong and Macao for Personal Reasons” (“中國公民因私事往來香港地區或澳門地區暫行管理辦法”) (“Measures”). The GPPSD revoked the Applicant’s one-way permit and requested his repatriation to the mainland.

36.The Director then interviewed the Applicant under caution, in the context of the suspected offence of making false representation to the immigration officer, and possession or using a forged one-way permit or a one-way permit obtained by unlawful means. In the cautioned interview, the Applicant said:

(1)  He applied for one-way permit in 1996 after he was married to Madam Tang on the basis of reuniting with her.

(2)  In 1999, Madam Tang asked for the divorce and the procedures were handled in Hong Kong.

(3)  When the one-way permit was issued in 2003, he did not know the exact time the divorce was finalized so he did not clarify that with the mainland authority.

(4)  He had already forgot the situation when he landed in Hong Kong or whether he was asked by immigration officer concerning his one-way permit.

(5)  He confirmed that he filled in and signed the application forms for his Hong Kong identity card and HKSAR Document of Identity in 2003. He put his marital status as married and Madam Tang as his spouse. He said he had only come to know that he had formally divorced Madam Tang in 2005.

(6)  He had a second marriage in 2009 and had fathered a son with his second wife. Both of them were residing in the mainland.

37.No criminal charges were pressed in the end. But, whilst the Applicant was not prosecuted, the Commissioner in 2017 re-examined whether the Applicant was qualified for PIC. The Applicant made further submissions in this regard through his lawyer. It was clarified that it was Madam Tang who requested the divorce and the Applicant signed the documents in 1998. But the Applicant only knew that he was formally divorced from Madam Tang in 2005 when he collected some court documents from his landlord and had them translated.

38.It appears that in the course of the appeal to the Tribunal, the Applicant disputed some facts stated in the GPPSD’s 2016 letter. The Director thus sought clarification from the GPPSD by letter dated 11 October 2019. The Director drew attention to the fact that the order made by the Hong Kong court shows that the marriage was dissolved in 1999 (rather than in 2000); and that the Applicant provided an application form showing that he applied for the one-way permit in 1998 (rather than in 2001).

39.By letter dated 19 October 2020, the GPPSD agreed that the Applicant’s marriage to Madam Tang was dissolved in 1999 and clarified that 2001 was the time when the one-way permit was received by a particular arm of the mainland authority. The GPPSD re-stated that the Applicant had never disclosed to the authority about the dissolution of his marriage from the time of his application to 2003 when the permit was issued, and thus the Applicant’s one-way permit was revoked in 2016 according to the Measures.

F.  Proposed Grounds of Review

40.Although the Applicant seems to have mistaken that the decision to declare his PIC invalid in 2017 was made by the Director, rather than the registration officer, I should take his references to the Director as referring to the registration officer. The Director and the Commissioner are in fact the same person conducting the different roles.

41.Reading the supporting affirmation and the submissions dated 19 January 2023 together, the Applicant’s proposed grounds could be summarized as follows:

(1)  When he tried to apply for settling his second wife and son in Hong Kong in 2010, the Mainland authority said that he was not qualified for making the application due to issues arising from his first marriage, and the application could only be considered if he was to pay $/Yuan150,000. The public officers in the PRC acted out of personal interest and had calculated to have him repatriated to the Mainland by all means. If he was repatriated to the Mainland, he would be unfairly treated.

(2)  He applied for one-way permit in 1998, which predated the formal dissolution of his marriage in 1999. At the time of application, he was eligible on the basis of spousal reunion with Madam Tang.

(3)  The GPPSD revoked his one-way permit on 19 April 2016. As shown in the letter of the same day, the GPPSD by then had mistaken that his application for one-way permit was made in 2001 and that he was divorced from Madam Tang in 2000. Thus, the GPPS irresponsibly revoked his one-way permit based on mistaken facts – that he applied for one-way permit after the dissolution of his marriage to Madam Tang. That was unfair.

(4)  His one-way permit was issued on 25 June 2003. The GPPS revoked it on 19 April 2016. That was beyond the limitation period within which the GPPSD could do so under the PRC law.

(5)  The Director invalidated his PIC in 2017 based on the (mistaken) information provided by the GPPSD in 2016 without verifying if the facts were true. That was unfair and irresponsible.

(6)  When the Director came to know that the GPPSD had been mistaken about the chronology of his one-way permit application and the dissolution of his marriage, the Director should have refused to accept the GPPSD’s revocation of his one-way permit and should have returned his PIC to him. Rather, the Director dared not reject the GPPSD’s decision to revoke the one-way permit. That was unfair.

(7)  The Director did not relay the GPPSD’s 2016 letter to the Applicant until 2020, and by then the Applicant was already out of time to challenge the GPPSD’s decision by way of administrative review in the Mainland courts. Due to the Director’s delay in passing the 2016 letter to him, he was deprived of his right to challenge the GPPSD’s decision.

(8)  At §14(a)-(b) of the Decision, the Tribunal had been mistaken about the date he applied for one-way permit. He applied in 1996 and 1998, rather than in 2001 as alleged by the Director. The Tribunal failed to appreciate that the Director was mistaken in respect of the chronology of his one-way permit application and his divorce.

42.The Applicant also pleaded for the Court’s discretion on compassionate grounds. In gist, he said he has been living as a good citizen in Hong Kong for a long time. He has worked and lived in Hong Kong and has integrated into the society. He has contributed to the society by doing volunteering work. He has registered as an elector and has met his duty by voting in elections. He has never applied for any Government subsidy and has been supporting himself. He had been found to have a cancer tumour in 2021 and wishes to continue his treatment in Hong Kong. He is in the process of divorcing his second wife and his 85-year-old father is all he now has. His father has been diagnosed with dementia and is currently living in Hong Kong. He has to stay in Hong Kong to take care of his father.

G.  Whether there are Merits

43.As said, under section 3D(4) of the RPO, the question that the Tribunal has to decide for itself based on the facts was whether the Applicant had the right of abode in Hong Kong. The categories of persons with right of abode in Hong Kong are exhaustively listed in §2 of Schedule 1 of the IO, which is a word-for-word copy from Article 24(2) of the Basic Law. There is no power for the Tribunal (or the registration officer, or the judicial review court) to grant right of abode outside the statutory and constitutional framework.

44.To succeed on this leave application, the Applicant has to persuade this Court that it is reasonably arguable that the Tribunal was wrong to conclude that the Applicant did not have right of abode.

45.The Tribunal had concluded that the Applicant had failed to bring himself within §2(b) of Schedule 1 of the IO – which requires a continuous period of ordinary residence not less than 7 years – or any other categories under §2. Central to the Tribunal’s reasoning is the Tribunal’s reliance on Kong Sau Mei in reaching the conclusion that the Applicant’s landing in Hong Kong, originally permitted on the strength of the one-way permit, was unlawful.

46.The Tribunal did not articulate the deception practised on the immigration officer which had rendered the landing unlawful. But reading the Decision as whole, it is tolerably clear that the deception lies in the representation that the Applicant was eligible to apply for and hold the one-way permit when he entered Hong Kong in 2003. That representation was false since he was not (or no longer) eligible when the permission to land was sought.

47.Relying on the Choi Ka Tak and Wong Ka Hin cases (see above), the Tribunal also said that it was entitled to rely on the conclusion reached by the GPPSD as shown in its letters without enquiring as to how the conclusion was reached.

48.The Tribunal did not specify what conclusion of the GPPSD that was relied upon. But reading the 2016 letter and the 2020 letter together, the GPPSD’s conclusion was clearly that the Applicant was not eligible to apply for and obtain the one-way permit at least by 2003 when the permit was issued, regardless of whether he was eligible at the time when he made the application. If one accepts the conclusion of the GPPSD (which the Tribunal did), then the Applicant had falsely represented his eligibility to the immigration officer when he landed and, according to Kong Sau Mei, the landing was rendered unlawful.

49.The Applicant’s main argument seems to be a chronology point, namely that his application for the one-way permit pre-dated the formal dissolution of his marriage to Madam Tang. Thus, he was still eligible when the application was made, albeit not so when the permit was issued (or when he landed in Hong Kong). The Applicant did not explain the legal effect of the chronological point on the Tribunal’s conclusion that the Applicant’s landing was unlawful. Indeed, his argument that he was still eligible for the one-way permit in 1998 is not inconsistent with the GPPSD’s conclusion that the Applicant was, nonetheless, no longer eligible by 2003.

50.Regardless of whether the application for one-way permit was made in 1996, 1998 or 2001, the Tribunal could rely on the GPPSD’s conclusion that he was no longer eligible by 2003 when the permit was issued. Thus, the immigration officer was deceived in granting the Applicant the permission to land on the strength of the one-way permit in 2003.

51.None of the arguments raised by the Applicant were or are capable of rebutting that he was no longer eligible to apply for the one-way permit when he landed in Hong Kong in 2003:

(1)  The insinuation that the GPPSD officer was motivated by personal interest in seeking his repatriation to the Mainland was a bare assertion unsupported by evidence. In any event, this does not detract from GPPSD’s conclusion that the Applicant was no longer eligible for the one-way permit in 2003 by virtue of his divorce. These proceedings are in any event not the proper forum for reviewing the GPPSD’s decision or actions.

(2)  The Applicant did not explain why it would be unfair for the GPPSD to revoke his one-way permit. Putting aside the revocation of the permit in 2016, it remains the case that the Applicant was ineligible to apply for one-way permit on the basis of spousal reunion at least by 2003.

(3)  Regardless of whether the GPPSD would have been barred from revoking the one-way permit under PRC law by 2016, it remains the case that the permission to land in Hong Kong granted in 2003 was granted under a false belief that he was eligible to apply for and hold the one-way permit on the basis of spousal reunion.

(4)  How the registration officer took into account the conclusion reached by the GPPSD in deciding to invalidate the Applicant’s PIC is irrelevant to this leave application. As said, the Tribunal has to decide for itself whether the Applicant had the right of abode, rather than reviewing whether the registration officer had properly exercised his power in invalidating the PIC.

(5)  The argument that the Director had delayed in relaying the GPPSD’s 2016 letter to the Applicant and thus prevented him from challenging the GPPSD’s decision in the PRC courts is neither here nor there. That has nothing to do with whether the Applicant was still eligible to the one-way permit when it was issued or when he landed in Hong Kong.

(6)  The Tribunal was not mistaken (or fail to appreciate that the Director was mistaken) as to the chronological order of the Applicant’s one-way permit application and the timing of his divorce. Whilst the Tribunal was referring to the GPPSD’s 2016 letter in §14 of the decision, the only dates referred to were March 1996 (when the Applicant married Madam Tang) and June 2003 when the one-way permit was issued. The Tribunal did not refer to, let alone rely on, the mistaken chronology as suggested by the Applicant. As said, what the Tribunal relied on is the GPPSD’s conclusion that the Applicant was no longer eligible at least by 2003.

(7)  Lastly, neither the Tribunal nor the Court has power to grant the Applicant the right of abode on compassionate or humanitarian grounds if he could not bring himself with any of the category under §2 of Schedule 1 of the Ordinance.

52.None of the proposed grounds are reasonably arguable with any realistic prospect of success.

H.  Conclusion

53.The leave application is dismissed with no order as to costs.

The applicant, acting in person

Mr Frenki Fung, Senior Government Counsel (Ag.), of the Department of Justice, for the putative interested parties