Mohammad Hasham v. Registration of Persons Tribunal and Another

HCAL154/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 154 OF 2005

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BETWEEN

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Coram:  Hon Lam J in Court

Dates of Hearing:  7 December 2005 and 17 January 2006

Date of Judgment:  17 January 2006

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J U D G M E N T

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1.In this case the Applicant seeks to apply for leave for judicial review regarding the decision of the Registration of Persons Tribunal of 2 November 2005.  By that decision, the Tribunal refused the Applicant’s application for issuance of a permanent identity card confirming his status as a permanent resident. 

2.In order to establish such a status, the Applicant has to show that he has been ordinarily resided in Hong Kong for at least seven years.  The history of the matter is that the Applicant arrived in Hong Kong on 30 May 1997, initially as a visitor.  A subsequent extension of stay was granted to him.  I will not go into the details.  They are set out in full in the Summary of Facts placed before the Tribunal which is now exhibited as MH1 to the supplemental affirmation of the Applicant filed on 13 December 2005.

3.On 14 May 2003, the immigration authority refused to grant him further stay or extend permission to allow him to stay in Hong Kong.  There has been an appeal against that decision but the appeal was unsuccessful.  As at 14 May 2003, the Applicant has not achieved seven years’ ordinary residence in Hong Kong. 

4.However, the Applicant in the present proceedings seeks to rely on the fact that he was tolerated to remain in Hong Kong up to today, pending the progress of his appeal and the present application.  In particular, the Applicant relies on a series of toleration letters issued by the Immigration Department.  What the letters said - and it is a standard form letter - and I will quote from a letter dated 25 May 2004, which is Exhibit MH1 to the first affirmation of the Applicant, filed on 28 November.  The Director said in that letter: 

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“The Applicant’s application is under processing.  Whilst not prepared to grant him an extension of stay, the Director will not insist upon his departure from Hong Kong and will tolerate his presence in Hong Kong pending determination of the application, provided there being no adverse record against the Applicant.”

5.The Director continued to say:

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“Please note that this is not to be construed as approval of your client’s application for extension of stay, nor has any permission to remain been given by the Director.  The limit of stay of your client has expired and has not been extended and no permission to remain in the Hong Kong SAR since expiry of his limit of stay has been given.”

6.It has been established by authorities that, for the purpose of the Immigration Ordinance, there is a distinction between permission and sufferance.  Toleration letters in terms similar to those issued to the Applicant have consistently been regarded by the Court not as permission to stay in Hong Kong but rather as a kind of sufferance (See the Court of Appeal decision in Lai Yau Chik v Director of Immigration [2002] 2 HKC 546, and this has been applied in the subsequent case of 李呈娜對入境事務處處長 HCA 2214/2002, decision of Deputy Judge Cheung (as he then was) on 16 September 2002).

7.In the circumstances, it is quite clear to me that as from 14 May 2003, the continued presence of the Applicant in Hong Kong cannot be regarded as lawful in the sense that his physical presence can constitute ordinary residence here.  Therefore, there is no legal basis to justify the Applicant’s claim that he is entitled to a permanent identity card.  I would therefore refuse the application. 

Mr John Hemmings, instructed by Messrs Massie & Clement, for the Applicant