Zhao Hong Cora v. Registration of Persons Tribunal
Read the full judgment text of HCAL 1322/2025 on BabelCite. This High Court CFI judgment was delivered on 5 November 2025.
1. This is the kind of case that perhaps Elvis Presley had in mind when he made a margin note in his Bible that, “Truth is like the sun; you can shut it out for a time, but it ain’t going away”.
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HCAL 1322/2025 [2025] HKCFI 5276 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1322 OF 2025 ________________________
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_________________________ REASONS FOR DECISION _________________________ A. Introduction 1.This is the kind of case that perhaps Elvis Presley had in mind when he made a margin note in his Bible that, “Truth is like the sun; you can shut it out for a time, but it ain’t going away”. 2.The case involves a woman who first landed in Hong Kong, using a ‘one-way permit’ issued on the basis of enabling her reunion with her Hong Kong permanent resident husband, and who necessarily represented to the Immigration Department (“ImmD”) that she continued to be married to the husband. However, it was subsequently discovered that at the time of her first landing in Hong Kong the marriage was no longer subsisting, because she and the husband had divorced some years prior to that. 3.By this application, the Applicant seeks to challenge the Determination (“Determination”) made by the Registration of Persons Tribunal (“Tribunal”), by which the Tribunal dismissed the Applicant’s appeals against the refusals of the Commissioner of her applications for (1) verification of eligibility for permanent identity card (“VEPIC”), and (2) a Hong Kong permanent identity card (“HKPIC”). 4.By her Form 86 dated 10 June 2025, the Applicant seeks to quash the Determination and to have the matter remitted to the Tribunal. 5.I gave directions on 12 June 2025 for the filing of evidence and a rolled-up hearing, fixed for 5 November 2025. Pursuant to the directions, the affirmations of (1) Chan Yim Hung (“Chan Affirmation”) and (2) Lam Chun To (“Lam Affirmation”) were filed on behalf of the Commissioner. The Applicant had, of course, also filed evidence. 6.At the rolled-up hearing: Mr Ernest Ng and Mr Christopher Gin of Counsel represented the Applicant; and Mr Albert N B Wong of Counsel and Ms Karen Ngai, Senior Government Counsel, represented the Commissioner. I had previously granted the Tribunal’s request to be excused from attending the hearing. 7.At the end of the hearing, I dismissed the application for leave to apply for judicial review and reserved my reasons for the decision to be handed down a few days later. These are my Reasons for Decision. B. Background Facts B.1 Applicant’s Entry into Hong Kong 8.The Applicant is a divorcee who was born on 12 March 1977, in the Mainland. Since 21 February 2006, the Applicant has been living and working in Hong Kong with her son (“Son”). 9.In or about 1998, the Applicant met Mr Ho Chi Shuen (“Mr Ho”), a Hong Kong permanent resident (“HKPR”) with a right of abode (“ROA”) in Hong Kong and the holder of a HKPIC. 10.On 9 January 2001, the Applicant and Mr Ho registered their marriage in Shandong. 11.On 19 March 2001, the Applicant applied with the assistance of Mr Ho for a Permit for Proceeding to Hong Kong and Macao – commonly known as a ‘one-way permit’ (“OWP”). An OWP is issued under a scheme agreed between the Hong Kong and Mainland authorities to allow for the orderly but limited entry of Mainland residents into Hong Kong for the purpose of family unification. 12.On 20 June 2001, the Applicant gave birth to their Son. 13.However, shortly after that, in or around July 2001, the Applicant and Mr Ho separated. This was quickly followed by the commencement of divorce proceedings in Shenzhen, which resulted in a divorce judgment dated 16 July 2002, handed down by the Shenzhen Luohu People’s Court. The Applicant was granted custody of the Son. 14.On 19 January 2006, OWP no. Q00128991 was issued to the Applicant by the Bureau of Exit-Entry Administration of the Public Security Bureau of the People’s Republic of China (“Mainland Authority”). The Applicant had concealed from the Mainland Authority the fact of her divorce, which fact would have precluded her eligibility for the OWP. 15.On 21 February 2006, the Applicant entered Hong Kong using the OWP. At that time, the Applicant had no right of abode, and was not able to land in Hong Kong without the permission of an immigration officer or immigration assistant. On the basis of the OWP, the Immigration Officer granted her permission under section 11 of the Immigration Ordinance Cap 115 (“IO”) to land in and remain in Hong Kong lawfully for 7 years. 16.On 23 February 2006, the Applicant applied for a Hong Kong Identity Card (“HKIC”) and Document of Identity for Visa Purposes (“D/I”). In her HKIC application, the Applicant stated and declared that she was married (being a “Mrs”) and that her “spouse” was Mr Ho. She was issued with a HKIC on the same day. The Applicant must, however, have known that her statement and declaration were untrue, because she had already been divorced from Mr Ho for 3½ years. 17.On 28 February 2006, she was further issued with a D/I, valid until 28 February 2013. 18.On 12 March 2012, the Applicant applied for a D/I and an extension of stay. She was issued with a new D/I, and was granted a temporary extension of stay on 29 April 2013 until 15 April 2020. ImmD expressly stated in writing on 29 April 2013 that the extension of stay could not be understood as the Applicant’s fulfilment of the policy criteria regarding the approval of extension of stay and that the ImmD reserved the rights to refuse any further extension of stay or to nullify any permission given. B.2 Investigations into Applicant’s OWP 19.On 20 October 2010, the Applicant applied for a Certificate of Absence of Marriage Record, for the purpose of marriage in Mainland China. In her application, she claimed to be divorced and to have never registered a marriage in Hong Kong. 20.Subsequently, upon investigation, ImmD noticed that the Applicant had settled in Hong Kong on the strength of the OWP after her marriage with Mr Ho had been dissolved in Mainland China on 16 July 2002. 21.In view of the above, the ImmD suspected that the Applicant had used and was in possession of a false or unlawfully obtained OWP and invited the Shandong Provincial Public Security Department (“SPPSD”) to comment on the Applicant’s application for OWP. 22.The SPPSD replied to the ImmD by two letters dated 28 September 2012 and 29 February 2016.
23.The evidence filed in these proceedings, in particular §§9-28 of the Lam Affirmation, shows that further correspondence ensued (which had not been placed before the Tribunal and/or were not previously disclosed to the Applicant):
B.3 Decisions of the Commissioner 24.By two letters dated 10 September 2014, the ImmD informed the Applicant that the Applicant was issued with the OWP in January 2006 when she and Mr Ho had already divorced in 2002, so the Applicant was not qualified to come to Hong Kong for settlement. The ImmD informed the Applicant that it considered that the OWP was obtained unlawfully and by deception, and it intended to declare the vitiation of all the permissions to land as well as the permissions to stay in Hong Kong obtained by the Applicant on the strength of the OWP. The Applicant was invited to make written representations. 25.The Applicant, through her solicitors, Messrs Yu, Tsang & Loong (“YTL”), made written representations through various letters including ones dated 21 January 2015 and 25 January 2019, as follows:
26.On 4 January 2013 and 2 December 2015, the Applicant made two applications for VEPIC, in which she claimed to be a HKPR by virtue of paragraph 2(b) of Schedule 1 to the IO. ImmD confirmed receipt of the applications by letters dated 7 January 2013 and 3 December 2015 respectively. 27.On 17 February 2017, the Applicant, through her solicitors, further applied for an HKPIC, on the basis that she was a HKPR by her having ordinarily resided in Hong Kong for a continuous period of not less than 7 years. 28.By letter on 21 August 2019, ImmD declared the vitiation of all the permissions to land and remain obtained by the Applicant on the strength of the OWP. The Commissioner also declared withdrawal of the Applicant’s HKIC. 29.On 3 September 2019, as a result, ImmD informed the Applicant that her two applications for VEPIC were refused. On 16 September 2019, ImmD informed the Applicant that her application for a HKPIC was refused. It was in respect of these three decisions that the Applicant appealed to the Tribunal under section 3D of the Registration of Persons Ordinance Cap 177 (“RPO”). The Applicant lodged her Notice of Appeal on 7 December 2019. C. The Determination 30.The hearing before the Tribunal was held on 18 December 2024. 31.At the appeal hearing, the Applicant advanced the following grounds:
32.Counsel then acting for the Applicant narrowed down the case to two key contentions: (1) that the validity of the OWP was a matter of Mainland Chinese law and, the Commissioner having failed to produce evidence to demonstrate that the OWP was unlawfully obtained or was a forgery, the OWP remained valid and should have been accepted by the Commissioner; and (2) that in refusing the Applicant’s VEPIC application, the Commissioner had erred in alleging that a fraud had been committed in the absence of any evidence to show that the Applicant had committed fraud. 33.In response, the Commissioner’s case was that:
34.By the Determination dated 10 March 2025, the Tribunal dismissed the Applicant’s appeal and upheld the decisions of the Commissioner. In particular, the analysis provided by the Tribunal consisted of the following:
D. Relevant Legal Framework 35.The entitlement to a HKPIC is provided in Article 24 of the Basic Law, which materially provides:
36.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 HKPIC enjoys the right of abode in Hong Kong, the officer shall issue a HKPIC to such person. 37.Persons enjoying the right of abode in Hong Kong are the permanent residents of Hong Kong: see section 2A of the IO. The categories of persons who are permanent residents of Hong Kong are set out in §2 of Schedule 1 to the IO. Relevant for present purposes 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”. 38.The meaning of ordinary residence is defined in section 2(4) of the IO. Relevantly, section 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. 39.The meaning of “unlawfully entering or landing” in Hong Kong is provided in section 42 of the IO, which materially provides:
40.The right to a HKPIC is given practical effect by the Commissioner, by way of various sections of the RPO, which provides:
41.The Applicant’s PIC was originally granted under §2(b) of Schedule 1 of the IO, on the basis that she was a Chinese citizen who had ordinarily resided in Hong Kong for 7 years after she had lawfully entered Hong Kong on the strength of her OWP. 42.However, in 2019, 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 her 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 be invalid. 43.Section 3D 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, with sections 3E and 7 also materially relevant as follows:
44.Further provisions have been made under the Regulations, relevantly:
45.As to the procedure of the Tribunal, Schedule 4 of the Regulations provides that:
46.Thus, as established in Li Mengzhi v Commissioner of Registration [2023] HKCFI 2933 at §17, the Tribunal does not “review” the decision of the registration officer in the exercise of his power to invalidate the HKPIC. 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 also Li Su Shan v Director of Immigration [2002] 4 HKC 284, where Hartmann J had to construe a comparably worded section 53D(1) of the IO in the context of an appeal to the Tribunal against a removal order. 47.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 HKPIC. 48.Therefore, to succeed in an application for leave to apply for judicial review of the Decision made by the Tribunal, the Applicant must persuade this Court that it is reasonably arguable that the Tribunal was wrong to conclude that the Applicant did not have the right of abode. E. Proposed Grounds of Review 49.By her Form 86, the Applicant’s proposed grounds of review are as follows:
50.I can address them in turn, but Grounds 1 and 2 can usefully be addressed together, as they were in submissions. Indeed, Grounds 1 and 2 formed the core of the intended challenge, and if they cannot succeed, neither can Grounds 3 or 4. 51.I can also usefully address at this point one of Mr Ng’s overarching or preliminary points made in oral submission, namely that the Court exercising its judicial review jurisdiction should not decide on the merits of the underlying issues facing the Tribunal, but should focus only on the integrity of the decision-making process. Mr Ng suggested that the Commissioner’s argument is an invitation to the Court to decide the underlying merits. Nevertheless, whilst the proposition advanced as to the Court’s correct role in judicial review is obviously correct, I do not think the Commissioner is inviting the Court to decide the underlying merits. Rather, I accept that the Commissioner is asking the Court to consider on traditional public law grounds whether the Tribunal’s decision can be impugned. F. Grounds 1 and 2: Wrong Questions and Misdirection 52.Mr Ng submitted that the principal issue to be dealt with by the Tribunal was whether the Applicant remained in Hong Kong “after landing unlawfully”. He suggested that could only have occurred if the Applicant had misled an immigration officer (see section 42(1) of the IO), or if she had used or had in her possession an unlawfully obtained travel document (see section 42(2)(c) of the IO). 53.Notwithstanding regulation 21(2) of the Regulations, the Tribunal and both parties accepted that the burden of proof lies with the Commissioner to establish its allegation that there was a deception that vitiated permission to land or stay in Hong Kong, and that the standard of proof is one of civil standard of balance of probabilities: see the Determination at §§30-31. 54.As formulated in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at p. 1065 the question for the Court is: did the decision-maker ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly? 55.Mr Ng submitted that the Tribunal mistakenly asked:
56.He submitted that the correct questions should have been:
57.Mr Ng submitted that the “Counterfactual Question” and “Deception Question” must be wrong for the following reasons. 58.First, the governing law as to the effect of any non-disclosure of matters on the validity of an OWP must be PRC law and thus must be established by proper evidence. Mr Ng referred to Lui Hau Man v Director of Immigration [2003] HKCFI 937 at §35 (cf. section 42(3) of the IO). Mr Ng was presumably referring to the first part of that paragraph, but §35 as a whole reads:
59.Hence, that paragraph identifies that reference can be made to other admissible material in relation to a particular legal status, which may be found in correspondence from a relevant authority. 60.In the present case, Mr Ng submitted that the Tribunal made improper conclusions without evidence. Mr Ng submitted that the Tribunal has erroneously sidestepped, if not patently ignored, this jurisdictional limitation by wrongly framing the question as a straightforward question of fact rather than recognising it as a question of foreign law that requires evidentiary support. As he put it:
61.The relevant parts of the original text of the Second SPPSD Letter have been set out above. Mr Ng submitted that, notably:
62.Further, the Second SPPSD Letter only went so far as to answer the Counterfactual Question. Thus, for the Tribunal to have validly concluded that the OWP was indeed unlawfully obtained and/or in fact invalidated (and if so, the timing of such invalidation) and/or that it was obtained by deception (with a meaning properly grounded in PRC Law), PRC Law evidence must have been adduced first by the Commissioner (with proper opportunity for the Applicant to respond). 63.Mr Ng submitted that there was no other basis relied upon to find that the Applicant’s OWP was unlawfully obtained or otherwise invalid:
64.In the present case, Mr Ng submitted, the Tribunal has fallen into error by treating a foreign law question as if it were a forensic evidential question. I take it this seeks to emphasise the point from case law that the Tribunal has no jurisdiction independently to invalidate a PRC-issued document. 65.Mr Ng relied upon the explanation of applicable PRC law offered by Dr Li Weidong (“Dr Li”), who provided an expert opinion report. I can address this first on a de bene esse basis, as I also need to determine the summons by which the Applicant sought leave to file and rely on Dr Li’s report (to which I shall return below). 66.Dr Li opined that:
67.Mr Ng submitted that there is no question of hindsight as to what would have happened had the full picture been brought to the authorities. To speak of the Counterfactual Question without regard to the timing of the divorce and the timing at which such information was communicated to the authorities in the Mainland, having regard to the fact that when the Applicant applied for the OWP in 2001 before the divorce, there was no misstatement whatsoever, is overly simplistic and wrong. The Tribunal erred, he said, by applying this Hong Kong law approach instead of properly analysing the case under the relevant PRC legal framework. 68.Mr Ng submitted that Tribunal wholly failed to realise that the Applicant’s failure to disclose her divorce is a separate issue from whether the Applicant has “obtained [administrative approval] by fraud”, in that the latter requires active deceit on the part of the Applicant, whereas the former, being a passive omission could only find a claim of “failure to fulfil the criteria after the fact”. 69.Secondly, asking whether the Applicant obtained the OWP by deception has betrayed a misunderstanding of the proper use of the concept of “deception” in the analysis. Mr Ng referred to Kau Sai Mei v Director of Immigration [1999] 1 HKC 174 at p. 184, which was cited before the Tribunal by the Commissioner, where it was said that (with Mr Ng’s emphasis):
70.Thus, Mr Ng submitted that the focal inquiry, viz deception, is not on how the OWP was approved in the first place but rather the consequences of how the OWP was obtained, viz., whether it was unlawfully obtained. However, I am not sure how this passage is said to help the Applicant. Indeed, it seems to me to identify from the emphasised words that, at least from the point of view of the Hong Kong immigration officer considering whether to grant permission to land in Hong Kong, that permission could be refused if the facts show the document presented (though “valid”) was obtained in circumstances in which had they been known permission would have been refused, as that can amount to a deception. 71.On the other hand, Mr Ng submitted that the “Effect Question” and “Unlawfulness Question” ought to be the correct questions because:
72.Mr Ng submitted that, as a result of asking the wrong questions, the Tribunal failed to consider the relevant issue of timing under PRC law. This thereby limited its analysis to the falsity of the factual matrix underlying the OWP, and the materiality of that falsehood to an OWP application. He said the Tribunal (1) should not have gone into an inquiry to begin with, because the effect of the falsehood (if any) on the OWP application would have been a question of PRC law, and (2) failed to properly consider whether a statement that was false at the time it was made, or whether a false statement was ever made by the Applicant in connection with her OWP application, and the effect of “silence” in the context of PRC law-governed OWP Process. 73.Referring to Deng Suet Yan v Hong Kong Housing Authority [2017] 4 HKLRD 73 at §19, Mr Ng accepted that what steps are to be taken in its enquiries is a matter for the authority/decision-maker. Nonetheless, he argued that no reasonable tribunal possessed of the material the Tribunal had could suppose that the inquiries it had made were sufficient: relying on R (Plantagenet Alliance) v Secretary of State for Justice [2015] 3 All ER 261 [A#9] at §100(3)-(4). Mr Ng submitted that:
74.Mr Ng submitted that, on that basis, it fell wholly to the Commissioner to show deception: see Ng Man Yin v Registration of Persons Tribunal [2014] 1 HKLRD 1188 at §69. Where this is a case of non-disclosure, Mr Ng further submitted that the Tribunal failed to engage with the appropriate questions and conduct reasonable enquiries, for example:
75.Mr Ng said the evidence before the Court now shows that those steps would not have been hypothetical or technical, but would have yielded critical evidence which may have driven the Determination in another direction. 76.First, such an exercise would have confirmed the Applicant’s submissions that in fact the OWP had not been declared invalid and/or rescinded, as confirmed by the later correspondence. In gist, the SPPSD’s ultimate conclusion was that it could not cancel the Applicant’s OWP without certain procedural requirements being complied with. This stands in stark contrast with the Tribunal’s practice to receive statements from the PRC authorities explicitly rescinding or invalidating a given OWP as shown in the prior cases. 77.Second, Mr Ng said that it would also have yielded proper PRC law evidence, of which the Court now has a cursory view via Dr Li’s report (which is consistent with the practice of SPPSD), that:
78.Mr Ng submitted that, in the premises, the Determination should be quashed. 79.For the Commissioner, Mr Wong’s submissions in response were admirably succinct. He submitted that the Applicant plainly does not qualify for the ROA, and the Tribunal’s decision to that effect is unimpeachable. Therefore, the Applicant’s focus on the legal effect of the validity of the OWP is neither here nor there. As he put it, the simple fact is – and the Tribunal cannot be faulted for finding – that the Applicant cannot be considered to have lawfully remained in Hong Kong for seven years, and thus does not have the ROA. 80.Mr Wong noted that the thrust of the Applicant’s challenge is focused on whether there was “deception” and whether the OWP remained valid. But the focus should be on the reasons why the Applicant is not considered to have entered and remained lawfully. In that context, it is clear, Mr Wong said, that the Applicant has misconstrued what was meant by “deception”, and has distracted herself with the issue of validity of the OWP, and whether it has or has not been revoked or the process by which that might occur. 81.Mr Wong pointed to the first letter on 10 September 2014 notifying the Applicant of ImmD’s intention to cancel her HKIC, which formally communicated to her that: (1) the “deception” was the manner in which she obtained her permission to enter and stay, namely by use of an OWP when she did not in fact meet the conditions for settling in Hong Kong; (2) the permission to enter and stay was as a result “invalid”; and (3) the “deception” also referred to the obtaining of the HKIC on the basis that she met the conditions for settling in Hong Kong, when she did not. 82.Mr Wong acknowledged that in another letter of the same date, ImmD did refer to the OWP as having been “obtained by fraudulent means”, but the context made clear that it meant she obtained the OWP without in fact meeting the conditions for settling in Hong Kong, because she was already long divorced. In other words, both letters identified the reason for cancelling her HKIC and vitiating her permission to land was because she simply did not meet the conditions for settling in Hong Kong. 83.This was also echoed and, in so far as necessary, clarified in the formal declaration of the invalidity of her permission to land and remain in Hong Kong. That letter made clear that the Applicant obtained the OWP without meeting the conditions for settling in Hong Kong, and therefore had no legal basis to reside in Hong Kong (which was, of course, the basis upon which she landed and sought permission to remain). I accept that it is also echoed in the SPPSD letters which, as well as stating that the Applicant had concealed the fact that she had divorced (which is undoubtedly true), pointed out that she had lost the conditions for settling in Hong Kong – hence the recommendation that the matter be dealt with in accordance with Hong Kong law. 84.Mr Wong submitted that the Applicant’s Grounds 1 and 2 are not capable of undermining the Determination. Referring to what was held by me in Lee Wing Foon v Registration of Persons Tribunal [2023] HKCFI 838 at §§50-51, Mr Wong submitted that the Tribunal could rely on the Mainland authority’s conclusion that the Applicant was no longer eligible. There, I stated:
85.Notwithstanding that that was a case in which there had been a formal revocation of the relevant OWP by the Mainland authority, the same approach seems to me to be applicable in this case. Indeed, I see no need for there to be any PRC legal consideration as to whether as a matter of fact (1) the Applicant met the necessary requirements for settling in Hong Kong and/or (2) the Applicant misrepresented that she was still married at the time she first landed in Hong Kong. The answer to both questions is obvious, where (1) because she had long before divorced Mr Ho, the Applicant did not meet the necessary requirements for settling in Hong Kong, and (2) when the Applicant declared that she was married and the spouse of Mr Ho, that was a lie. Indeed, it seems obvious to me that the Applicant must have told that lie because she knew that to have told the truth would have revealed that she was no longer, if she ever had been, eligible to settle in Hong Kong on the basis that she was joining her husband. 86.Perhaps put another way, when the Applicant presented her OWP to the immigration officer, the relevant representation was not that she had an OWP which had not been set aside as a result of any fraud, but that she was at the time of entry eligible for the OWP and to settle in Hong Kong on that basis, when that was clearly not true. 87.As in the Lee Wing Foon case, the Tribunal could rely on the SPPSD’s conclusion that the Applicant was no longer eligible by 2006 when the OWP was issued, and so the immigration officer was deceived in granting the Applicant the permission to land on the strength of the OWP. Similarly, none of the arguments now advanced for the Applicant were or are capable of rebutting the simple fact that she was no longer eligible to obtain the OWP when she landed in Hong Kong. 88.Indeed, Mr Wong correctly submitted that the right questions to be asked by the Tribunal to determine whether the Applicant landed “unlawfully” had actually been stated in the Applicant’s skeleton submissions, and were indeed asked by the Tribunal – namely, whether the Applicant had misled an immigration officer as per section 42(1) of the IO, and/or whether she had used or had in her possession an unlawfully obtained travel document as per section 42(2)(c). Despite posing those questions, the Applicant’s submissions did not answer them. But the Tribunal did answer them, and I see no reasonably arguable public law basis for interfering with the answer. 89.I would also reject Mr Ng’s submission that the Commissioner’s case which the Applicant faced before the Tribunal related to the suggested irregularity in the process of obtaining the OWP – and not the question of deceiving the immigration officer as is now being advanced. Plainly, the Tribunal addressed the question as to whether the Applicant had landed lawfully or unlawfully, and answered that question by reference to the eligibility or otherwise to enter on the basis used – and at least implicitly represented to the immigration officer at the point of landing, as well as expressly represented in the application for the HKIC. 90.The Applicant’s argument – essentially based upon the idea that it does not matter that she was actually ineligible to have entered Hong Kong on the basis that she did, because she had in her hand a OWP that has not (yet) been revoked – is deeply unattractive. But, in any event, there was sufficient evidence available to the Tribunal for it to have formed the view that ineligibility had been established, even on the viewpoint of the Mainland authority, which would vitiate the permissions to land and to remain. 91.On this basis, Grounds 1 and 2 are not reasonably arguable with any realistic prospect of success. Even where the ground is to be considered reasonably arguable, they would be bound to fail on substantive review. G. Ground 3: Adequacy of Reasons 92.Mr Ng goes further to say that if the Court agrees with the Applicant on Grounds 1 and 2, it follows that the Tribunal had failed to give adequate reasons in the Determination. 93.As already decided above, I do not agree with the Applicant on Grounds 1 and 2, or that those grounds are reasonably arguable with any realistic prospect of success. Nevertheless, I shall go on to deal with the question relating to adequacy of reasons. 94.The relevant law relied on by Mr Ng was:
95.Mr Ng submitted that by asking the wrong question and at the same time failing to reasonably acquaint itself with all the relevant information, the Tribunal also failed to give “clear and sufficient” reasons as to how it came to the Determination. The Determination would have also failed to engage with the principal issues and explain to the Applicant how she was found to have used an unlawfully obtained OWP to commit a “deception” in obtaining her permission to land in Hong Kong in the present context and thus, to have landed unlawfully in Hong Kong. 96.Mr Ng thus contended that the Determination must also be quashed on this basis. 97.In response, Mr Wong submitted that the Tribunal’s reasons were sufficient, as this was a simple case. Even now, there is no positive case that at the time she sought to enter Hong Kong, she was in fact eligible for the OWP scheme based on family reunion. It would therefore have been unreasonable for the Tribunal to allow her application on a mere technicality that the OWP was not formally invalidated due to failure of service, knowing full well she was not eligible for it when she landed. 98.The Tribunal’s reasons were admirably succinct and did not let the Applicant’s submissions distract it from the fundamental question of whether she had the ROA. In particular, reference can be made to §§24 and 33-36:
99.It seems to me that reasoning was clear and sufficient to the circumstances. The reasons also enabled the Applicant to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. Further, the Applicant was well able to assess her prospects of obtaining some alternative relief resolution (as she has, in effect, sought to do through these proceedings). 100.For the reasons above, Ground 3 is not reasonably arguable with any realistic prospect of success. H. Ground 4: Unreasonableness/ Irrationality 101.Upon the suggestion that the Determination was also irrational or unreasonable in the public law sense, the Applicant relies on the facts and arguments pleaded on the other Grounds. 102.There being no merit in those other Grounds, Ground 4 is also not reasonably arguable with any realistic prospect of success. I. Expert Evidence Summons 103.The desire to deploy the expert opinion evidence of Dr Li was in the main for making the point that: (1) there is a distinction between an administrative license that is obtained by fraud, and one which is tainted by subsequent non-conformity; (2) the latter will not mandate to really be revoked, though it may be as a matter of discretion; (3) prior to the exercise of that discretion the licensee who has obtained the licence tainted by subsequent non-conformity enjoys procedural safeguards and rights, including the right to make representations; so that (4) the licence may not ultimately be revoked, and in any event remains valid unless and until it is declared void; and (5) there may also be a limitation period for the invalidation of administrative licences of about 20 years from the date the licensing authority knew or ought to have known of the deficiencies with the licence. 104.In my view, this evidence is irrelevant to the current question. 105.First, it focuses on the wrong period of time. The relevant question to be determined by the Tribunal, and as is subject to potential review by the Court, is whether the Applicant was eligible for the OWP at the time she presented it as the basis of seeking permission to land and remain in Hong Kong. Hence the relevant period of time is up to the date that she landed. As the SPPSD made clear in its correspondence, if the Applicant had revealed (and not concealed) the fact of the divorce before the issue of the OWP, it would not have been issued because she would not have been eligible for it. 106.However, the expert opinion evidence focuses on what might happen later, if there were some process engaged in to consider whether the OWP might be revoked. 107.Secondly, the eligibility to the OWP was essentially a matter of fact, namely whether the Applicant was and remained married to a Hong Kong permanent resident with whom she intended to reside after settling in Hong Kong. No expert opinion evidence of any kind is required to identify and establish that fact. 108.Thirdly, even if the Mainland administrative process might not lead to the revocation of the OWP (which seems at least highly unlikely), I do not see how that would affect the key underlying fact of ineligibility to land in Hong Kong, which led to the deception of the immigration officer, making the landing unlawful as a matter of Hong Kong law. J. Result 109.In the circumstances, I dismiss both the expert opinion summons and the Applicant’s application for leave to apply for judicial review. 110.As accepted during the hearing, costs should follow the event. Therefore, the Applicant shall pay the Commissioner’s costs of the proceedings (including the expert opinion summons), to be taxed if not agreed.
Mr Ernest Ng and Mr Christopher Gin, instructed by Yu, Tsang & Loong, for the applicant The putative respondent was excused Mr Albert N B Wong, instructed by, and Ms Karen Ngai, Senior Government Counsel, of the Department of Justice, for the putative interested party | ||||||||||||||||||||||||||||||||||
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