Syed Haider Yahya Hussain and Another v. Registrar of Births and Deaths

HCAL000073/1999

HCAL 73/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 73 OF 1999

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Coram: Hon Chung J in Court

Dates of Hearing: 22 - 23 November 1999

Date of Judgment: 7 January 2000

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J U D G M E N T

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Introduction

1. This is the Applicants' application for a number of declaration orders including the following:-

(a) the Applicants have acquired the status of "Hong Kong permanent residents" on 1 July, 1987 when the Immigration (Amendment)(No. 2) Ordinance came into effect;

(b) the Applicants continue to enjoy such status within the meaning of the said Ordinance as it now reads;

(c) further to (a) above, the 2nd Applicant acquired such status at his birth in Hong Kong on 13 March 1985 under the Immigration Ordinance as it then read.

Further, the Applicants ask for a mandamus order directing the Respondent to amend their respective birth certificates so as to state that the Applicants' right of abode in the Hong Kong S.A.R. is "established".

2. The Applicants' counsel submitted that this application arose out of an error made by the Respondent in registering their births, namely, an erroneous statement in the Applicants' birth certificates that their Hong Kong belonger status was "not established". Pursuant to s. 27(1)(c) of the Births and Deaths Registration Ordinance, Cap. 174, an application was delivered to the Respondent on 4 March, 1999 to correct the said error but by a letter dated 20 April 1999, the Respondent informed the Applicants that their application for amendment was refused. Counsel argued that this decision is wrong and is liable to judicial review.

3. The application for leave to apply for judicial review was made on 25 June 1999. Leave to do so was given by the High Court on 28 June 1999.

4. This application was brought by the Applicants, and not their father (the next friend herein) ("the Father"). However, whether the Father has been "settled" in Hong Kong at the respective times of their birth is crucial to the Applicants' case because the Applicants claimed that they became "Hong Kong belongers" (and "Hong Kong permanent residents") since the Father had already acquired such status by then: see para. 4, 18, 22, 25, 28, 30 and 32 of the Applicants' Skeleton Argument.

Relevant Undisputed Facts

5. The Applicants are the 4th generation descendents of a Pakistani family which has been living in Hong Kong. The Father was born in Pakistan and came to Hong Kong in September 1951 when he was 3 years old. After that, he travelled in and out of Hong Kong on a number of occasions on a Pakistani passport but was never absent from Hong Kong for 7 years or more.

6. Prior to 29 January 1988, permission was given on various occasions for him to stay in Hong Kong in effect until 1 month before the expiry date of his passport: see para. 8 of the affirmation of Whitty Choy dated 30 August 1999, exhibit "SPH-1" to the Father's affirmation dated 25 June 1999 and para. 9, 11 to 16, 20 and 21 of the "Notice of Application for Leave to Apply for Judicial Review" dated 25 June 1999 ("the Notice"). Unconditional stay was granted to the Father on 29 January 1988: see para. 24 of Choy's affirmation.

7. The relevance of the Father's liability to be deported from Hong Kong will be discussed further below. At this stage it is noted that the Respondent agreed that by reason the Father had been ordinarily resident in Hong Kong for a continuous period of 7 years from 1951 to 1958, he acquired the right not to be deported from Hong Kong under the Deportation (British Subjects) Ordinance (Ord. No. 16 of 1936) ("the 1936 Deportation Ord."): see para. 4 of Choy's affirmation. It is also undisputed that the Father's said right not to be deported was unaffected by the revised edition of the Deportation (British Subjects) Ordinance 1964 ("the 1964 Deportation Ord."): see para. 5 of Choy's affirmation.

The 1971 Immigration Ordinance and 1987 Immigration Ordinance

8. The Immigration Ordinance (Ord. No. 55 of 1971) ("the 1971 Ord.") introduced the concept of "Hong Kong belongers": see s. 2(1) which reads:-

"'Hong Kong belonger' means -

(a) a British Subject who was born in Hong Kong;

(b) a British Subject by naturalization in Hong Kong;

(c) a British Subject by registration in Hong Kong ... ;

(d) a British Subject who is or has been married to, or is the child of, a person mentioned in paragraph (a), (b) or (c)."

9. It was (correctly) not contended by the Applicants' counsel that the Father was or became a Hong Kong belonger by reason of the provisions of the 1971 Ord. The argument advanced on the Applicants' behalf was that the Father has acquired that status, or rights which were equivalent to those of that status, before the enactment of the 1971 Ord. because he already acquired the right not to be deported from Hong Kong earlier: see para. 34 of the Notice. The Respondent took a contrary view and contended the Father did not acquire any right (of abode).

10. There was no dispute between the parties that the Immigration (Amendment No. 2) Ordinance 1987 (Ord. No. 31 of 1987) ("the 1987 Ord.") essentially continued along the same vein as the 1971 Ord. The 1987 Ord. discarded the concept of the "Hong Kong belonger" and replaced it with the "Hong Kong permanent resident". It also provided that Hong Kong permanent residents enjoy a "right of abode" here which means they have the right to land, the right not to have any condition of stay imposed on them and the rights not to be deported and not to be removed from Hong Kong: see para. 31 of the Applicants' Skeleton Argument.

The Pre-1971 Deportation and Immigration Statutes in Hong Kong and their Effect

11. The Applicants' case was founded on the effect of the pre-1971 legislation in Hong Kong relating to deportation.

12. The first piece of such legislation in force at the time of the Father's arrival in Hong Kong in 1951 was the 1936 Deportation Ord. The Applicants' counsel submitted this was of great significance because it introduced the concept of "belonger of Hong Kong". S. 2(2) of the 1936 Deportation Ord. provided:-

"For the purposes of this Ordinance a person shall be deemed to belong to [Hong Kong] if he or she is a British subject and -

(a) was born in [Hong Kong]; or

(b) has been ordinarily resident in [Hong Kong] continuously for a period of seven years or more and since the completion of such period of residence has not been ordinarily resident in any other part ... for a period of seven years or more ... " (underline supplied)

13. S. 3 of the 1936 Deportation Ord. empowered the Governor to make a deportation order in respect of an immigrant British subject who did not belong to Hong Kong. As stated above, the Respondent did not dispute that by 1958, s. 2(2) of the 1936 Deportation Ord. applied to the Father and thus he could not be made the subject of a deportation order.

14. The Applicants' counsel argued that the reasoning (or policy) behind s. 2(2)(b) of the 1936 Deportation Ord. was that the legislature regarded a "Hong Kong belonger" (as defined in s. 2(2)(b)) had "settled" in Hong Kong and therefore he should not be deported from Hong Kong which was his "home". On the other hand, the Respondent relied on the series of pre-1971 legislations in Hong Kong dealing with immigration control to argue that the right of abode was never acquired by the Father.

15. The piece of such legislation applicable when the Father arrived in Hong Kong (in 1951) was the Immigration Control Ordinance (Ord. No. 4 of 1949) ("the 1949 Imm. Control Ord."). S. 2(1)(d) thereof provided:-

"In this Ordinance ...

'Immigrant' means any person other than a person born in [Hong Kong] and in possession of documentary proof of such birth".

S. 4 thereof provided:-

"No person may enter [Hong Kong] save-

... under and in accordance with a permit of the Immigration officer".

S. 19 thereof read:-

"The possession of valid travel documents shall not be deemed to imply that the holder will be permitted to enter as of right, nor, if he is permitted to enter, that he will be permitted to remain; nor shall it serve as an excuse for disobedience of any order of removal, deportation, expulsion or banishment made under any enactment ... ".

S. 22 thereof stipulated:-

"The Immigration Officer shall, at all times, have discretion to limit the stay of any immigrant entering [Hong Kong]".

16. Counsel have diligently located and referred me to a number of other legislations regarding this aspect during the hearing before me. No disrespect is intended by not setting out in detail these legislations. I consider it sufficient merely to say that similar provisions can be found in the legislations regarding immigration control which were in force between the times of the 1949 Imm. Control Ord. and the 1971 Ord.:-

(a) the Immigration (Control and Offences) Ordinance, Ord. No. 34 of 1958 ("the 1958 Imm. Control Ord."): ss. 2(1), 4(1)(a) and (b), 15(1), 19 and 22 thereof;

(b) the Immigration (Control and Offences) Ordinance, Cap. 243 (1964 ed.) ("the 1964 Imm. Control Ord."): ss. 2(1), 3(1)(a) and (b), 15(1), 19 and 22 thereof.

17. Based on these pre-1971 immigration control legislations, the Respondent argued that:-

(a) it was entirely correct for, and within the power of, the Director of Immigration to have limited the time during which the Father could stay in Hong Kong when permission was given to him to stay here;

(b) at all times prior to January 1988, the Father was in fact subject to immigration control of the Director of Immigration.

18. Para. 9, 12 to 16 and 20 to 21 of the Notice also stated either:-

(a) no conditions were imposed on the Father's permission to stay in Hong Kong; or

(b) the Father's passport was indorsed (and re-indorsed) with "purported" limits of stay (up to 1 month before the expiry date of his passport).

Further, it was contended in the Applicants' Skeleton Argument that:-

(a) the Father was permitted to enter Hong Kong in 1951 unconditionally: see para. 8 thereof;

(b) there was an (immigration control) policy applicable to British subjects (which included the Father) to permit them to enter Hong Kong unconditionally: see para. 8 thereof.

19. It may be true that the policy contended for by the Applicants existed: see para. 6 of Whitty Choy's affirmation. However, it was also clear that so far as the statutes were concerned (as the Respondent argued), the immigration control legislations were applicable to the Father. It is also clear from the copy passports exhibited by the Father that the Director of Immigration in fact exercised his power under those legislations.

20. It is unclear what the Applicants meant when they stated (in either the Notice or their Skeleton Argument) that the Father's stay in Hong Kong was "unconditional". I would agree if what they meant to say was that there was no condition as to the purpose of his stay (see para. 15 of the Notice). If, however, the Applicants intended to say that the Father's stay was not subject to any condition (even as to time) then factually it is incorrect. It is also unclear what the Applicants meant when the Notice stated that there were "purported" limits of stay. First, the phrase "'purported' limits of stay" contradicts the contention that the Father's stay was unconditional. Secondly, I do not understand (or agree with) the word "purported" because the provisions in the various pre-1971 immigration control legislations clearly empowered the Director of Immigration to impose a time limit for the Father to stay in Hong Kong.

21. The debates and/or speeches of the movers of the bills in the Legislative Council in relation to some of the above legislations have been referred to by counsel (for both sides). I do not find it necessary to rely on these materials in the Hong Kong Hansard to arrive at the conclusion set out below. If it had been necessary to do so, I would have found that they would reinforce that conclusion.

Conclusion on the Father's Right to Stay in Hong Kong

22. For the reasons stated above, I agree with the Respondent's argument that the Father never acquired any right of abode (or any similar right, except perhaps in relation to the deportation legislations) before July, 1987. The scheme of the legislation prior to 1971 was that deportation and immigration control were governed by their respective legislation. Merely because a person acquired a certain right under one set of legislation did not mean that somehow that right could be extended to confer upon him some other right(s) under the other set of legislation.

23. As the Applicants said in their Skeleton Argument, the 1971 Ord. put the various immigration control and deportation legislations into a single code: see para. 19 thereof. It did not add anything: see para. 22 of the Applicants' Skeleton Argument.

24. I therefore conclude that at the time of the Applicants' birth (and by 1 July 1987), the Applicants' Father (and the Applicants) did not acquire any right of abode and they were not "Hong Kong permanent residents" at those times.

25. It was not argued that the Father had a "legitimate expectation" that he had acquired a right of abode prior to July 1987. I would have rejected this argument if it had been raised because there is no basis to support it.

Other Matters

26. Apart from arguments relating to the above matters, the Respondent also advanced other arguments regarding the following matters:-

(a) the matters raised in this application are within the exclusive jurisdiction of the U.K. courts because the ultimate purpose of the Applicants is to apply for the recognition of their resident status there (and to obtain passports from the U.K. Government);

(b) (if the argument in (a) above is correct) since the Applicants do not contend or expect that the H.K.S.A.R. Government would deny their claim to be Hong Kong permanent residents, the matters raised in this application are academic questions for the Hong Kong court which the court should refuse to decide;

(c) (if the argument in (a) above is correct), there has been delay by the Applicants in making this application;

(d) in view of the decision in R. v. Criminal Injuries Board, ex parte A [1999] 2 W.L.R. 984, it is not open to the Respondent to argue that there was delay in making this application after leave has been given. However, that does not bar the Respondent from making an application to set aside the order giving leave to apply for judicial review.

27. Since I have been able to come to a decision in this application based on the matters discussed under the previous headings herein, I do not find it necessary to decide on these subtle questions set out above under this heading save as regards the application asking to set aside the order giving leave. A decision on that application is necessary since it may have an effect on costs.

Application to Set Aside the Order Granting Leave

28. Since it is unnecessary for me to decide whether it was proper for the Applicants to base their application on s. 27(1)(c) of Cap. 174, I will only say that for the purpose of deciding on whether to set aside the order giving leave, I do not consider that:-

(a) the Applicants' application under s. 27(1)(c) would clearly fail at the substantive application: see The Supreme Court Practice 1999, para. 53/14/4;

(b) the Applicants' application was frivolous, vexatious or hopeless: The Supreme Court Practice 1999, para. 53/14/21;

(c) the Applications' application was not fit for further investigation at a full inter partes hearing: see The Supreme Court Practice 1999, para. 53/14/21;

(d) the Applicants' application clearly contravened any of the provisions in R.H.C. Ord. 53.

29. For these reasons, I do not consider that the ex parte order giving leave was wrongly made. The application to set it aside is therefore dismissed.

Conclusion

30. The Applicants' application for judicial review is dismissed. The Respondent's application to set aside the ex parte order is also dismissed.

Costs Order Nisi

31. There is no apparent reason not to make a costs order nisi pursuant to Ord. 42 r. 5B(6). There is also no apparent reason not to order costs to follow the event. Costs of the Applicants' application are to be paid by them to the Respondent, to be taxed if not agreed. Costs of the

Respondent's application are to be paid by the Respondent to the Applicants, also to be taxed if not agreed.

Representation:

Mr G. McCoy, SC leading Mr S.H. Kwok, instructed by Messrs Clarke & Liu, for the Applicants

Mr W. Marshall, SC leading Mr T.Y. Lee, instructed by Department of Justice, for the Respondent

Remarks:
On appeal by the Applicants and cross-appeal by the Respondent to the court of Appeal: The appeal is allowed and the cross-appeal is dismissed with costs. Please refer to CACV000077/2000.