Read the full judgment text of FACV 000001/2001 on BabelCite. This FACV judgment was delivered on 10 January 2002 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ.
Constitutional and administrative law – right of abode in Hong Kong – Basic Law arts. 22(4), 24(2)(3), 158(1) and 158(3) – Chinese nationals born in the Mainland of Hong Kong permanent residents claiming permanent resident status under art. 24(2)(3) – Immigration Ordinance (Cap. 115) ss. 11, 13, 19(1)(b)(ii) – Immigration (Amendment) (No. 2) Ordinance 1997 and Immigration (Amendment) (No. 3) Ordinance 1997 – NPCSC Interpretation of 26 June 1999 displacing the Court of Final Appeal decisions in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 and Chan Kam Nga v Director of Immigration (1999) 2 HKCFAR 82 – appeals by Chinese nationals who were not parties to those test cases but who relied on the test case character of the litigation and on the government's 'Concession' policy announced the same day. First issue ('judgments previously rendered'): whether the principle 'judgments previously rendered shall not be affected' in art. 158(3) applies to free-standing NPCSC interpretations under art. 158(1) and protects strangers to the litigation – held yes as to scope (it applies to free-standing interpretations) but no as to the meaning of 'judgments' – 'judgments' means formal orders binding only the parties to the litigation, not the ratio decidendi or reasons for decision – applicants as strangers to the Ng Ka Ling and Chan Kam Nga litigation are not protected. Second issue (legitimate expectation): whether the four categories of representations – (i) general statements by the Chief Executive and Director of Immigration that the government would abide by court decisions; (ii) Immigration Department standard replies saying decisions could not yet be made; (iii) the Secretary for Security's letter of 24 April 1998 to RA13 stating the Immigration Department would follow the final judgment; and (iv) Legal Aid Department pro forma replies stating it was unnecessary to commence or join proceedings – gave rise to substantive legitimate expectations that the applicants would be treated as if they were parties to the test cases – held yes – doctrine of substantive legitimate expectation is part of Hong Kong administrative law – representations were clear and unambiguous and induced reasonable reliance – but enforcement limited to the extent the Director can exercise his statutory discretion under ss. 11, 13 and 19(1) of the Immigration Ordinance without acting contrary to law. Third issue (abuse of process): whether execution of the removal orders would be an abuse of process – held yes – removal orders made without taking the legitimate expectations into account. Fourth issue (Periods 1 and 2): whether applicants who arrived in Hong Kong before 1 July 1997 (Period 1) or between 1 July and 10 July 1997 (Period 2) are subject to art. 22(4) and the Interpretation – held no – art. 22(4) and the Interpretation apply from 1 July 1997 and the retrospective provision in the No. 3 Ordinance was held unconstitutional in Ng Ka Ling. Fifth issue (the 'Concession'): interpretation of the government's policy announced on 26 June 1999 allowing verification of status for persons who arrived between 1 July 1997 and 29 January 1999 and had claimed the right of abode – applicants' broader interpretation rejected – Director of Immigration's interpretation preferred as rational. Outcome: appeals allowed by majority (Bokhary PJ dissenting in part) – all removal orders quashed – declarations that all appellants are Hong Kong permanent residents with the right of abode (Bokhary PJ) and that the Director must take the legitimate expectations into account in exercising his discretionary powers under ss. 13 and 19(1) of the Immigration Ordinance – no order as to costs save for legal taxation of the appellants' own costs.
Legal issues: Construction of 'judgments previously rendered shall not be affected' in art. 158(3) of the Basic Law · Substantive legitimate expectation arising from test case representations · Whether execution of removal orders would constitute abuse of process · Whether Periods 1 and 2 applicants are subject to art. 22(4) and the NPCSC Interpretation · Interpretation of the government's 'Concession' policy
Outcome: Appeals allowed by majority (Bokhary PJ dissenting in part); all removal orders quashed; declarations made that the appellants are Hong Kong permanent residents with the right of abode (Bokhary PJ's alternative basis) and that the Director of Immigration must take the appellants' legitimate expectations into account in exercising his discretionary powers under ss. 13 and 19(1) of the Immigration Ordinance.
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