Somporn Yoothip v. Secretary for Security and Another

HCAL 122/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS

NO. 122 OF 2004

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BETWEEN

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Before: Hon Chung J in Court

Dates of Hearing: 6, 7 and 29 June 2005

Date of Handing Down Judgment: 25 January 2006

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J U D G M E N T

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Introduction

1.This is an application for judicial review.  Leave to apply was given on 28 October 2004.  The decisions under challenge are:-

(a) the Permanent Secretary for Security’s decision dated 13 January 2004 to make a deportation order requiring the applicant to leave Hong Kong and prohibiting her from being in Hong Kong (“the said deportation order”);

(b) a registration officer’s decision made on or about 29 October 2001 refusing to issue a permanent identity card to the applicant;

(c) a registration officer’s decision made on or about 23 July 2002 refusing to issue a permanent identity card to the applicant.

2.The relief sought in the notice of application for leave to apply for judicial review (“Form 86A”) includes:-

(1) quashing the said deportation order;

(2) declaring the applicant is a Hong Kong permanent resident within the class identified in Art. 24(4), Basic Law;

(3) quashing the refusal to issue a permanent identity card to the applicant;

(4) remitting the applicant’s application for permanent identity card with a direction that it be re-considered.

3.This application involves a consideration of Article 24(4), Basic Law (“Art. 24(4), Basic Law”) and its application to the facts relevant to this application.  The material parts of Art. 24(4), Basic Law read:-

“The permanent residents … shall be … [persons] not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence … ”.

The main issue herein is related to whether the applicant has “taken Hong Kong as [her] place of permanent residence”.

4.During the hearing of this application, the applicant clarified that she does not require the court to reach a conclusion as regards para. 2(2) above.  In other words, she does not require the court to conclude if she has “taken Hong Kong as [her] place of permanent residence” but only seeks to send that question back to the Director for re-consideration.

5.She also indicated she does not seek to quash the said deportation order anymore.

Background Facts

6.The applicant is a Thai lady who came to Hong Kong in October 1992.  On 19 October 1992, she was married to a Chinese male residing in Hong Kong and she obtained dependant status from the Director of Immigration (“the Director”).

7.From October 1992 to January 2004, she has ordinarily resided in Hong Kong.  By 13 January 2004 (the date of the said deportation order), more than 11 years have elapsed.  At the time of this application, she remains married to, but was separated from, her husband (it is unknown if he was a Hong Kong permanent resident).  But her present boyfriend is a Hong Kong permanent resident.

8.Between 1999 (about 7 years from her arrival here) and 2002 (about 10 years from her arrival here), she went to the Immigration Offices on several occasions for the purpose of replacing her identity card.  The Form 86A refers to the following occasions in particular when she reported the defacement or loss of her identity cards:-

(a) 24 May 1999;

(b) 29 October 2001;

(c) 20 February 2002;

(d) 23 July 2002.

By the time of her visit on 29 October 2001 (but not on 24 May 1999) she has been ordinarily resident in Hong Kong for not less than 7 years.

9.It is accepted by the respondents:-

“If she should choose to apply to [the Director] for verification of … permanent resident status, it would appear she became eligible to do so in accordance with [Cap. 115] Schedule 1 Paragraph 3 on about 26^th September 1999 at the earliest” (para. 3, respondents’ skeleton argument).

10.In July 2003, the applicant was convicted of soliciting for an immoral purpose and living on the earnings of prostitution of others and was imprisoned.

11.As stated above, on 13 January 2004, the Secretary for Security (“the Secretary”) made the said deportation order against her, on the ground that it was appropriate under s. 20(1)(a), Immigration Ordinance (Cap. 115) to do so:-

“The [Chief Executive] may make a deportation order against an immigrant if … the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years”.

Immigration and Registration Authorities

12.The office of the Commissioner of Registration (s. 2(1), Registration of Persons Ordinance (Cap. 177)) (“the Commissioner”) is (and has been) taken up by the person who holds the office of the Director of Immigration (Schedule 1, Immigration Service Ordinance (Cap. 331)).  The desirability of such an arrangement is obvious in view of the nature of work involved in the two offices: see also para. 1 to 3 and 14 to 16, affirmation of Sammy Tam dated 26 January 2005.

13.For similar reasons, the posts of a registration officer are regularly filled by officers from the Immigration Service (see, for example, s. 2(2B), Cap. 177 and Schedule 2, Cap. 331).  Officers of the Immigration Service are regularly posted to work in offices administered by the Commissioner.

14.In the context of this application, the Yuen Long office premises were shared by staff working under the Director and those under the Commissioner.  Immigration and registration services were provided there by immigration officers in their respective capacities depending on their postings: see for example, para. 1 to 2, affirmation of Wong Kwok Hung.

15.For a visitor such as the applicant when she first arrived Hong Kong, apart from the need to obtain permission from the Director to remain in Hong Kong (s. 11, Cap. 115), she also has to register pursuant to s. 3, Cap. 177.  An identity card would be supplied to her after she registered.

16.One of the forms used by the registration officer is known as form “ROP 1” (“ROP1”) and is headed:-

“Application for a permanent identity card / identity card by a person of the age of 18 years or over—Registration of Persons Ordinance cap. 177”.

It is divided into two parts, part A is to be completed by an applicant.  Of the boxes in part A for supplying personal particulars, the following are of importance to this application:-

(1) “Profession / occupation”;

(2) “Residential address”;

(3) “Marital status”;

(4) “Education level”;

(5) “Full name of spouse in English”, “in Chinese” and his or her “H.K. Identity card no.”;

(6) “Have you been ordinarily resident in the HKSAR for a continuous period of not less than 7 years?” with a choice of “yes” and “no”.

17.In relation to the applicant, the information she supplied in the ROP1 indicated:-

(a) she was a housewife;

(b) she was married to a Chinese man in Hong Kong and lived in Hong Kong.  The space in the forms for inserting her spouse’s identity card number was chopped “ICNA” which probably means “identity card not available”;

(c) (in the forms respectively dated 24 May 1999 and 29 October 2001) she claimed she had ordinarily resided in Hong Kong for not less than 7 years;

(d) the personal particulars were written in Chinese and English but she signed in Thai.

18.On the dates referred to in para. 8(b) to 8 (d) above, it should also be apparent from the records kept by the Commissioner that by 26 September 1999 the applicant has ordinarily resided in Hong Kong for a continuous period of not less than 7 years.

Disputed Facts

19.It is undisputed the registration officer who handled the applicant’s applications for identity card at the Yuen Long office was Wong Kwok Hung (“Wong”).

20.The factual dispute is related to Wong’s claim that, in accordance with his usual practice, he advised the applicant:-

“… if she wished to improve her immigration status to right of abode that she could apply for verification of her eligibility for a permanent identity card.  I would also have referred her to the information counter for further information. …  I verily believe that the Applicant had not made … a request [for the issue of a permanent identity card] on [29 October 2001] after hearing my advice … ” (para. 7, Wong’s affirmation);

“… on 23 July 2002 I had similarly advised the Applicant in the manner set out in paragraph 7 above … I verily believe that the Applicant did not make a request for a permanent identity card on that occasion either … ” (para. 9, Wong’s affirmation).

21.The applicant and her boyfriend, on the other hand, deny the claim and assert that:-

“… at no time on [the above] occasions was I advised by [Wong] or any other Immigration officer that I could apply for verification of my eligibility for a permanent identity card.  If I were so advised, I would have definitely applied for it, as staying permanently in Hong Kong without any condition of stay has long been my wish” (para. 7, applicant’s 2^nd affirmation);

“… at no time on 29 October 2001 and 23 July 2002 was the Applicant advised by [Wong] or any other Immigration officer that she could apply for verification of her eligibility for a permanent identity card” (para. 3, Tang Shing Chai’s affirmation).

22.At one stage, it appeared that the parties did not consider the above dispute to be relevant to the outcome of this application.  However, they differed as regards how Wong’s claim would impact on the applicant’s case.  For this reason, I directed that the deponents concerned (especially those whose affirmations have been referred to under this heading) should attend court to be cross-examined (which they did).

The Law Related to Permanent Resident Status

23.S. 20(1)(a), Cap. 115 has been set out in para. 11 above.  It empowers the Chief Executive to make deportation orders against immigrants.  S.2, Cap. 115 defines an “immigrant” as:-

“… a person who is not a Hong Kong permanent resident”.

The phrase “Hong Kong permanent resident” is in turn defined by Schedule 1, Cap. 115.  Schedule 1, insofar as it is relevant to this application, reads:-

“A person who is within one of the following categories is a permanent resident of [Hong Kong] … [a] person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than 7 years and has taken Hong Kong as his place of permanent residence … ” (emphasis supplied) (para. 2(d) thereof).

This part of Schedule 1, Cap. 115 is very similarly worded as Art. 24(4), Basic Law.

24.At least for the purpose of this application, the parties do not dispute that the applicant has ordinarily resided in Hong Kong for a continuous period of not less than 7 years.  It is the respondents’ case that there was no evidence that, at the date of the deportation order, she has taken Hong Kong as her place of residence.  The applicant contends otherwise.  This point accordingly becomes the crux of the dispute in this application.

25.It is implicit in both parties’ contentions (see below) that, under para. 2(d), Schedule 1, Cap. 115 and/or Art. 24(4), Basic Law, there is a need to apply to the Director first before the requirement that a person “has taken Hong Kong as his place of residence” can be satisfied.

26.In relation to para. 2(d), Schedule 1, Cap. 115, this requirement stems from para. 3, Schedule 1, Cap. 115.  The relevant parts provide:-

“(1)   For the purposes of paragraph 2(d), the person is required-

(a) to furnish information … to satisfy [the Director] that the person has taken Hong Kong as his place of permanent residence. The information may include the following-

(i) whether he has habitual residence in Hong Kong;

(ii) whether the principal members of his family (spouse and minor children) are in Hong Kong;

(iii) whether he has a reasonable means of income to support himself and his family;

(iv) whether he has paid his taxes in accordance with the law;

(b) to make a declaration in the form the Director stipulates that he has taken Hong Kong as his place of permanent residence … ; and

(c) to be settled in Hong Kong at the time of the declaration.

(2) A person claiming to have the status of a permanent resident … under paragraph 2(d) does not have the status … until he has applied to the Director and the application has been approved by the Director”.

27.The Court of Final Appeal in Prem Singh v. Director of Immigration (2003) 6 HKCFAR 26 has decided that, in relation to Schedule 1, Cap. 115, para. 1(5)(b) (which has no direct application herein) and 3(1)(c) when read together are unconstitutional: para. 7, 9 and 63.  The court also decided that once a person manages to bring himself within the plain terms of Art. 24(4), Basic Law, his position ceases to be subject to administrative discretion and comes under constitutional protection: para. 3.

28.But the Court of Final Appeal in Prem Singh reiterated (although in a different factual context) that:-

“In order to enjoy their permanent resident status, people have to declare that they have taken Hong Kong as their place of permanent residence”.

para. 6, Prem Singh.  The Court of Final Appeal also said:-

“a fair and reasonable statutory scheme for the proper verification of a person’s claim to [permanent residency] is constitutional … ”

and that:-

“… until such claim is verified, the applicant does not enjoy the rights of a permanent resident”.

para. 56, Prem Singh citing Ng Ka Ling and Others v. Director of Immigration (1999) 2 HKCFAR 4, 36; Lau Kong Yung and Others v. Director of Immigration (1999) 2 HKCFAR 300, 312.

29.The respondents rely on para. 64, Prem Singh which states:-

“The permanence requirement makes it necessary for the applicant to satisfy the Director both that he intends to establish his permanent home in Hong Kong and that he has taken concrete steps to do so”.

It should also be noted that in Prem Singh (citing Akbarali v. Brent London Borough Council, ex p Shah [1983] 2 AC 309) the term “settled purposes” was said to mean:-

“Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. … All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled” (para. 65).

30.In the paragraphs below, I assume that the above remarks in Prem Singh are applicable to this application (the applicant has not argued otherwise).  Hence, it is within the legal context set out above that the issues are joined in this application.

The Applicant’s Case

31.Two contentions are put forth:-

(a) when a foreign national completes a ROP1 and submits it to a registration officer and the materials before the registration officer (whether contained in the ROP1 or otherwise available to him) disclose the applicant’s potential eligibility to permanent resident status, the act of submission can amount to making a claim for such status;

(b) as a corollary to sub-para. (a) above, it is incumbent upon the registration officer to refer the ROP1 to the Director as an application made pursuant to Art. 24(4), Basic Law.

32.In relation to sub-para. (a) above, the applicant asks the court to note that the ROP1 represents that it is good for the purposes of applying both for an identity card and a permanent identity card.  When considered together with Art. 24(4), Basic Law, that would reasonably make one think that the ROP1 is a proper way of making a claim for permanent resident status.

33.By virtue of the above matters, the registration officer’s act also amounted to a refusal to issue a permanent identity card to the applicant.   He was obliged to act in accordance with s. 3D(2), Cap. 177 the relevant parts of which provide:-

“Where a registration officer refuses to issue to a person a permanent identity card … on the ground that, in the opinion of the registration officer, the person does not have the right of abode in Hong Kong the registration officer shall notify that person of his decision in writing and inform him of his right of appeal … ”.

The Respondents’ Case

34.In gist, the respondents’ case is that:-

(a) insofar as the Secretary’s decision to make the deportation order is concerned, the challenge is unmeritorious because he was not under a duty to consider the applicant’s immigration status, but was entitled to act on the basis that she was an immigrant subject to s. 20(1), Cap. 115 (her claim for permanent resident status not having been made or approved by the Director);

(b) insofar as the decisions of the registration officer to refuse the applicant’s application for permanent identity card are concerned, the challenge is unmeritorious because that officer was not under a duty to consider her immigration status but must (or at least was entitled to) act on the basis she was an immigrant; alternatively, the applicant has not made any application for permanent identity card;

(c) insofar as the Director is concerned, it is too late for the applicant to apply to him for permanent resident status after the Secretary has made the said deportation order against her.

35.The applicant has not advanced any argument to refute the part of the respondents’ case set out in para. 34(c) above.

Witnesses’ Credibility and Findings of Fact

36.The following are my findings relating to the witnesses’ evidence (by way of affirmation and in-court testimony):-

(1) I find Wong to be a truthful witness.  However, I do not consider his version of how he advised the applicant to be totally reliable.  When so concluding, I take into account he was posted as a registration officer whose daily task must have primarily been concerned with registration work under Cap. 177 (rather than with immigration work).  Further, he did not have an independent recollection of his dealings with the applicant or her boyfriend and only relied on his general practice (which he adopted of his own volition).  It is quite possible, despite his good intention and his general practice, because of various reasons including workload, he has been too economical in his advice to the applicant;

(2) I also find the applicant and her boyfriend to be truthful.  But I also have reservations about their reliability.  I do not accept their assertions that Wong has not given any advice to the applicant.  That denial is probably an exaggeration.  I rather find that they cannot recall any advice having been given either because Wong’s advice was too brief and/or the concepts Wong was trying to convey were too complicated for them to comprehend at the time.

37.The findings of fact I make are:-

(a) although Wong has advised the applicant matters relating to her right to seek permanent resident status, his advice was too brief;

(b) whatever might have been the real reason, the applicant and her boyfriend did not understand what Wong was saying and therefore did not pay attention to it;

(c) the applicant and her boyfriend were unaware of the applicant’s entitlement to seek verification of her permanent resident status until after the date of the said deportation order;

(d) in making the finding set out in sub-para. (c) above, I have taken into consideration the applicant’s frank admission in her affirmation that she would have understood the terms “permanent resident” (永久居民) or “Hong Kong permanent identity card” (香港永久居民身份證) if Wong had mentioned them;

(e) although the applicant could read the Thai language, she could not write it (except her own name).  Further, she could not read or write Chinese or English and was only able to understand simple Chinese used in daily casual conversation.  I infer from this the applicant must have received little education;

(f) on the occasions when she was accompanied by her boyfriend to go to the Immigration Department Yuen Long office, both Wong and her boyfriend spoke to her in Chinese which made her understanding of Wong’s advice even more difficult;

(g) if the applicant had known of the requirement to declare to the Director laid down by Art. 24(4), Basic Law, she would have done so as early as 26 September 1999.  In so concluding, I note that the respondents have not suggested any reason why she did not want to take Hong Kong as her place of permanent residence.

Analysis

38.Some people whose mode of entry into, and period of ordinary residence in, Hong Kong fulfils Art. 24(4), Basic Law, are well aware of the need to declare to the Director their intention to take Hong Kong as their place of permanent residence.  These people are (or should be) able to decide whether they actually want to so.  Little problem should arise as regards them.

39.The difficulty in this application stems from the fact that sometimes, there are people (such as the applicant) who are unaware of the need to make such declaration.  Still others may even not understand the concept of a permanent resident (which can be a complicated one; see similar observations in Jackson & Warr: Immigration Law and Practice (2004) para. 6-49).  Irrespective of precisely which of these is the real reason, they often do not make the declaration as a result, as has happened with the applicant.

40.The status of a Hong Kong permanent resident brings with it the right of abode, the right to vote and the right to stand for election: Ng Ka Ling and Another v. The Director of Immigration [1999] 1 HKLRD 315.  For the applicant, who is now faced with the said deportation order, the right of abode naturally becomes invaluable to her.

41.There is no evidence that any mechanism has been put in place by the Director or the Commissioner (or indeed any government department) to find out if a foreign national falls within the category referred to in para. 38 above or those in para. 39 above.  From the immigrants’ point of view, this would mean there is no mechanism to bring to their attention the provisions of Art. 24(4), Basic Law or the provisions of Schedule 1, Cap. 115.

42.In relation to those referred to in para. 39 above, the lack of such mechanism almost ensures that they will not make the declaration required by Art. 24(4), Basic Law to the Director.  The facts in Prem Singh illustrate the point: the applicant there made the declaration only when prompted by the immigration officer acting out of her own good intentions: para. 10, 90 and 91, Prem Singh.

43.It is unknown if any widespread or major problem has arisen in the past from the absence of such a mechanism.  But in relation to the applicant, this certainly resulted in her present dire situation and becomes the cause of her grievance.

44.The applicant’s case depends on the extent of the duty on the part of a registration officer when he is dealing with an application which, on the face of the factual information provided, may involve a declaration made pursuant to Art. 24(2), Basic Law.  In effect, the applicant contends that in considering the extent of such duty, the court should look at the circumstances brought about by:-

(a) the provisions of Cap. 115 and Cap. 177;

(b) the manner in which the executive chose to have those provisions administered.

(It should be noted that the applicant’s case is based on rights conferred by constitution, namely, Art.24(4), Basic Law.  Nothing discussed herein should therefore be regarded as applicable to cases beyond that context).

45.Viewed in such light, the question which the applicant asks the court to answer in this application can be posed in a different way: should the law permit a person’s potential constitutional right to wither away because of:-

(1) administrative inadequacies; and/or

(2) his ignorance of the relevant legal requirement(s) of Art.24(4), Basic Law?

46.At this point, the English court of appeal decision in R v. Tower Hamlets London Borough Council, ex p Ferdous Begum [1993] QB 447 needs to be considered.  That decision involved different facts and concerned two applicants who were handicapped.  They applied for housing to the local housing authority claiming priority need for that reason.  The housing authority concluded that they did not have sufficient capacity to make an application.  In allowing their appeal and granting their judicial review application, the court of appeal said:-

“This appeal and application are concerned with a human problem affecting the least advantaged citizens.  I appreciate that what may be compendiously described as ‘social services’ and ‘housing’ are often, as a matter of administrative convenience, dealt with by separate departments in a single local authority and may, where there is multi-tiered local government, be dealt with by different authorities.  This should be of no concern to the person who is homeless or threatened with homelessness (‘the homeless person’).  Whether he applies to the right or the wrong department or authority should not matter.  That department or authority should either itself deal with the application or pass it on to what it considers to be the correct department or authority and should tell the homeless person what it has done.  It should not tell that person to apply elsewhere.  The game of ‘pass the parcel’ has no place in this field.  And if disputes arise between departments or authorities as to whether this is a ‘social service’ or a ‘housing’ problem, that should be sorted out between them and should not directly involve the homeless person” (per Lord Donaldson of Lymington MR at p. 460A-D) (emphasis supplied).

47.The above remarks were made in the context of providing social or housing welfare to citizens.  On the other hand, the right involved in this application is constitutional in that it has been ensured by the Basic Law.  If the law does not permit administrative convenience to diminish the welfare which citizens should enjoy, there is even less reason for the law to permit it (whether by reason of accident or design) to diminish (or to have the effect of preventing the exercise of) a right conferred by the constitution.

48.Following the above vein of reasoning, the applicant has referred to the following English authorities which concerned the manner in which immigration applications were handled by the UK immigration authorities (and a Hong Kong case on the right to remain here):-

(a) Jackson & Warr: Immigration Law and Practice (2004) para. 6-44 and 6-49;

(b) Brown and Another v. The Entry Clearance Officer, Kingston [1976] Imm AR 119 (at p. 124);

(c) Mohammed Ach-Charki v. Entry Clearance Officer, Rabat [1991] Imm AR 162 (at pp. 166-7);

(d) Mohammed Fazor Ali v. Secretary of State for the Home Department [1988] Imm AR 274 (at p. 282);

(e) Re K(H) (an infant) [1967] 1 All ER 226 (at p. 233);

(f) A-G of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629.

49.A number of propositions can be deduced from these authorities:-

(1) while an applicant is expected to make the application factually clear, he is not expect to know the applicable legal route.  It is the duty of the immigration officer receiving the application to respond to it and to categorize it legally so that the appropriate principle or rule is applied;

(2) only an express requirement that prescribed forms must be used will defeat an “informal” application;

(3) while the immigration officer is not under a duty to conduct a roving expedition to see if an application is eligible, the court recognized a duty on his part to be alert to how the application might fit into one or more avenues of application;

(4) the duty referred to in sub-para. (3) above stems from an elementary duty of fairness which is owed in immigration entry situations to allow a would-be entrant to make out a case for entry or an illegal immigrant to make out a case for remaining;

(5) treating an application on an incorrect basis in law or fact will mean it remains outstanding before the decision maker.

50.Based on the matters set out above, in short I agree with the applicant’s argument referred to under the heading “The Applicant’s Case”.  The respondents’ argument, on the other hand, is too narrow and compartmentalized and I disagree with it.

51.The factual basis has been adequately made clear by the applicant in the ROP1 and the records kept by the registration and/or immigration authorities.  The applicant’s lack of education and reason for not taking Hong Kong as her home (see para. 17 and 37(e) to (g) above) should also be apparent to the registration officer. It is the duty of the registration officer (who was also an immigration officer), when he became aware (or ought reasonably to be aware) of these facts, to act in a manner which would promote (rather than frustrate) the purpose of Art. 24(4), Basic Law.  Without criticising Wong (who after all was posted as a registration officer without being instructed about this duty), merely giving the applicant a brief advice is inadequate in the circumstances.

52.Wong should have referred the matter to the Director as an application made pursuant to Art. 24(4), Basic Law.  Further, insofar as his act therefore also amounted to a refusal to issue a permanent identity card, he should have acted in accordance with s. 3D(2), Cap. 177.

53.I should mention that the applicant has very properly not suggested that the administrative inadequacies are deliberate.  There is no proper basis for any such suggestion.

Conclusion

54.This application is granted.  If necessary I shall hear the parties on the precise form of order to be made.  For the time being, I propose to make an order in terms of para. 6 of the relief sought in the Form 86A.

Costs Order Nisi

55.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application be paid by the respondents to the applicant to be taxed if not agreed.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Philip Dykes, SC instructed by Messrs Barnes & Daly, assigned by Director of Legal Aid, for the Applicant

Mr William Marshall, SC instructed by Secretary for Justice, for the Respondents