Maura Juliet a. Raquiza v. The Director of Immigration
Read the full judgment text of HCAL 20/2006 on BabelCite. This High Court CFI judgment was delivered on 11 July 2006 before Chu J.
Judicial Review – Permanent Residence – Ordinary Residence – Domestic Helper – Basic Law Article 24 – Director of Immigration – Duty to Advise – Whether applicant eligible for permanent residence under Basic Law Art 24(4) and Immigration Ordinance – Applicant not eligible as period as domestic helper excluded and break in residence occurred – Whether Director has duty to inform applicant of entitlement – No general duty on Director to inform or advise – Application for judicial review dismissed – costs order made
Legal issues: Eligibility for permanent residence · Director's duty to inform
Outcome: Application for judicial review dismissed
Cited by 3 cases · Cites 1 case
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HCAL20/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.20 OF 2006 -------------------------- BETWEEN
--------------------- Before : Hon Chu J in Court Date of Hearing : 27 June 2006 Date of Judgment : 11 July 2006 ------------------------ J U D G M E N T ------------------------ 1.The applicant initially applied to quash two decisions of the Director of Immigration (“the Director”). By the first decision dated 4 May 2004, the Director refused to grant her an extension to remain in Hong Kong. By the second decision of 3 June 2004, the Director refused to grant her an employment visa. The applicant challenged the decisions on the basis that they are infringements of her constitutional entitlement under Article 24(2)(4) of the Basic Law and that the Director had acted unfairly and unreasonably. 2.At the hearing of the judicial review application, the applicant did not pursue the challenge to the second decision not to grant an employment visa. She also did not pursue the argument that the Director had acted unreasonably. Factual background 3.The applicant is a Philippine national. She was born in the Philippines on 13 July 1966. She graduated from the Lyceum of the Philippines University in 1987. 4.The applicant first came to Hong Kong on 26 August 1988 on an employment visa to work as a foreign domestic helper. Subsequently, she had worked under three different domestic helper contracts with the Director’s permission. Her permission to remain in Hong Kong had been extended to 27 February 1992. However, on 7 January 1992, her third employment contract was terminated. On 21 January 1992, her condition of stay was varied and she was permitted to remain in Hong Kong as a visitor until 28 January 1992. On 23 January 1992, she signed a new employment contract. On 26 January 1992, she left Hong Kong and returned to the Philippines to await the processing of the new employment contract. 5.On 5 June 1992, the applicant returned to Hong Kong to take up employment as a foreign domestic helper. Thereafter, she had worked under another three domestic helper contracts. Her permission to stay in Hong Kong was extended to 15 July 1997. 6.On 15 October 1996, the applicant married Mr Cheng Chun Shun (“Mr Cheng”), who is a Hong Kong permanent resident. On 14 April 1997, she was allowed to change her immigration status to take up residence in Hong Kong as the dependant of her husband. She was granted permission to remain until 15 March 1998. On 20 March 1998, her stay as a dependant was extended to 15 March 2000. On 27 March 2000, her dependent visa was further extended to 15 March 2003. 7.On 16 May 2001, the applicant applied for unconditional stay by reason of having resided in Hong Kong as a dependant for more than three years. The Director by letter requested the applicant and Mr Cheng to furnish supporting documents and to attend an interview. It is the applicant’s case that she only received the last of the three letters sent by the Director. It is however common ground that neither she nor Mr Cheng turned up for the interview. Consequently, the application was treated as abandoned and was formally closed in August 2002. 8.Meanwhile, it is the applicant’s case that she had a difficult marital relationship with Mr Cheng. Admittedly, Mr Cheng moved out of the matrimonial home and they had lived apart since December 1997. 9.On 15 January 1999, Mr Cheng petitioned for divorce in the Family Court under case no. FCMC505/1999. The ground cited in the Petition was that he and the applicant lived apart since 1 December 1997 and the applicant consented to a divorce. It is however the applicant’s case that she was only aware of the Petition when it was served on her and then they subsequently agreed to a reconciliation. 10.The undisputed fact is that on 19 May 1999, the applicant and Mr Cheng, who was legally represented by Messrs Massie & Clement (“MC”), made a consent application to withdraw the Petition. The consent summons recited two undertakings given by Mr Cheng as follows :
11.On 27 July 1999, upon Mr Cheng’s said undertakings, the Family Court ordered by consent that the Petition be dismissed and the applicant paid $5,000 to Mr Cheng as agreed costs. 12.It is the applicant’s case that thereafter she and Mr Cheng lived together for about a month before Mr Cheng “disappeared again”. She said she could not locate her husband save for a meeting in early 2000. 13.As noted above, the applicant’s permission to remain as a dependant was due to expire on 15 March 2003. Being unable to contact Mr Cheng, the applicant went to MC on 13 March 2003 to seek assistance. 14.On 14 March 2003, with the assistance of MC, the applicant applied for a further extension of her dependent visa. The application was contained in two letters, both dated 14 March 2003. The first was written by MC as solicitors for the applicant. The letter referred to the consent order dated 27 July 1999 and stated that Mr Cheng had undertaken to sponsor the applicant for an extension of her dependent visa. The Director was requested to grant an extension of the applicant’s dependent visa. The second letter was written by the applicant in which she stated :
15.By letter dated 1 April 2003 to MC, the Director requested the applicant to provide documents and information in support of her application to remain without a sponsor. 16.On 16 April 2003, the applicant attended an interview at the Immigration Department, accompanied by a representative from MC. A letter of the same date from MC was produced, in which supporting information and documents were set out. 17.Subsequently, by letter dated 10 May 2003, MC informed the Director that as Mr Cheng had re-appeared and was willing to sponsor the applicant, the applicant was withdrawing her application to sponsor herself and would instead apply for an extension of her dependent visa with Mr Cheng’s sponsorship. 18.At the request of the Director, the applicant and Mr Cheng attended the Immigration Department for interview on 9 June 2003. They were interviewed separately. While Mr Cheng indicated he wanted to reunite with the applicant and would continue to support her stay in Hong Kong, the applicant indicated in a letter of the same date that she wanted to file a divorce and did not want a dependent visa. She requested an one-month extension to enable her to make arrangement in relation to her MPF and to file a divorce. 19.The applicant explained in this application that she came to the decision to divorce Mr Cheng because she was upset by Mr Cheng’s remark just before she was going into the interview room that she was troublesome. The applicant said she felt being insulted and did not believe Mr Cheng genuinely wanted a reconciliation. She accepted that the Immigration Officer had told her that if she divorced her husband, she would have to leave Hong Kong. The applicant also accepted that her letter written on the same date correctly reflected her position at the time. However, she regretted over it soon afterwards. It is because although she did want a divorce, she did not want to leave Hong Kong. 20.Consequent upon her letter written at the interview on 9 June 2003, the applicant was granted an one-month extension of stay until 9 July 2003. 21.On 8 July 2003, the applicant applied for legal aid to commence divorce proceedings. On the same day, she applied for a further extension of stay. In the application form, the reason for extension was stated to be that she had applied for legal aid to commence divorce proceedings. Legal aid was granted in October 2003. On 25 March 2004, the applicant’s divorce petition was filed in the Family Court under case no. FCMC3021/2004. The decree nisi was granted on 20 September 2004. It was made absolute on 24 November 2004. 22.In respect of the applicant’s application for further extension of stay made on 8 July 2003, the Director by letter dated 4 May 2004 informed the applicant that the application was refused. 23.By a letter dated 17 May 2004, Messrs Krishnan & Tsang (“KT”) applied on behalf of the applicant to the Right of Abode Section of the Immigration Department for verification of the eligibility for a permanent identity card (“VEPIC”). KT were the solicitors assigned by the Director of Legal Aid to act for the applicant in the divorce proceedings. 24.By a separate letter also dated 17 May 2004 to the Director, KT requested for an extension of stay to be granted to the applicant in view of her application for VEPIC. On the same day, the applicant also filled out the form for an extension of stay on the ground that she had made an application for VEPIC. 25.By letters dated 19 and 28 May 2004 to the Director, KT made further representations and provided further documents in connection with the applicant’s application for extension of stay. In particular, KT informed the Director that the applicant’s employer relied on the applicant’s knowledge of English and French in handling the customers from West India and the employer was willing to sponsor the applicant to remain in Hong Kong. 26.By letter dated 3 June 2004 to KT, the Director refused the applicant’s request to have her employer as her sponsor and informed her that the decision dated 4 May 2004 refusing to extend her stay remained. The Director however indicated that notwithstanding the expiration of the limit of stay on 9 July 2003, the applicant’s presence in Hong Kong until 3 July 2004 would be tolerated so as to enable her to settle any outstanding personal matters. 27.On 23 June 2004, the applicant’s application for VEPIC was refused. On 2 July 2004, the applicant made an application for a Hong Kong Permanent Identity Card, which was refused by the Commissioner of Registration on the same day. 28.On 3 July 2004, the applicant appealed against the refusal to the Registration of Persons Tribunal. She also applied unsuccessfully for legal aid to judicially review the refusal. Her appeal against the refusal of legal aid was dismissed on 5 November 2004. On 15 March 2005, the applicant abandoned the appeal to the Registration of Persons Tribunal upon the pro bono legal advice provided under the Bar Free Legal Advice Services Scheme. 29.Acting on the same advice, the applicant made a fresh application for legal aid to judicially review the Director’s two decisions dated 4 May and 3 June 2004, the decisions challenged in these proceedings. On the strength of counsel opinion obtained pursuant to section 9 of the Legal Aid Ordinance, Cap. 91, the Director of Legal Aid refused to grant legal aid to the applicant. On 12 October 2005, the applicant successfully appealed to the Registrar against the refusal of legal aid. On 16 November 2005, legal aid certificate was granted and counsel was assigned on 5 December 2005. 30.On 20 February 2006, the applicant commenced these proceedings. On 6 March 2006, the court granted leave to apply for judicial review with the application for extension of time to make the application being reserved to the substantive hearing. Mr Chow SC who appeared for the Director at the hearing had not made separate submissions against extending the time for judicial review. The Director’s decisions 31.The only decision of the Director under challenge at the substantive hearing was communicated by the Director’s letter dated 4 May 2004. The relevant part of it stated :
Grounds for judicial review 32.In respect of this decision, the applicant raised three challenges in the Form 86A. They are :
33.At the hearing, Mr Tang indicated that he did not seek to argue the last ground. Instead, he would combine the first two grounds and challenge the decision as being unfair. 34.The thrust of Mr Tang’s argument runs as follows :
35.As identified by Mr Chow SC, the applicant’s challenge is based on two fundamental contentions, namely :
36.It is therefore necessary to examine these contentions in turn. The applicant’s eligibility to permanent residence 37.On the first question of the applicant’s entitlement or eligibility to become a Hong Kong permanent resident, the relevant legal provisions are Article 24(4) of the Basic Law and section 2(4) and paragraphs 1(4)(b), 2(d) and 3(2) of Schedule 1 to the Immigration Ordinance. 38.Article 24(4) of the Basic Law provides :
39.Similarly, paragraph 2(d) of Schedule 1 to the Immigration Ordinance provides that Hong Kong permanent residents include :
40.Hence, for a non-Chinese national like the applicant, he may be eligible to become a permanent resident if he has entered Hong Kong lawfully and has ordinarily resided in Hong Kong for a continuous period of not less than seven years, and if he has taken Hong Kong as his place of permanent residence. 41.Paragraph 1(4)(b) of Schedule 1 to the Immigration Ordinance stipulates that for the purpose of calculating the continuous period of seven years of ordinary residence required under paragraph 2(d), the seven years must come immediately before the date when the person applies to the Director for the status of a permanent resident. 42.In Fateh Muhammad v. Commissioner of Registration & Another (2001) 4HKCFAR 278, 285, the Court of Final Appeal held that the seven continuous years required under Article 24(4) of the Basic Law must come immediately before the time when an application for Hong Kong permanent resident status is made in reliance on those seven continuous years. The constitutionality of paragraph 1(4)(b) was upheld by the Court of Final Appeal. 43.As to what may be treated as ordinarily resident in Hong Kong, section 2(4) of the Immigration Ordinance provides that in certain situations, a person shall not be treated as ordinarily resident in Hong Kong. Subsection (a)(vi) is directly relevant to the present application. It reads :
44.As to establishing permanent residence, paragraph 3(2) of Schedule 1 to the Immigration Ordinance provides :
45.In the case of the applicant, she has been present in Hong Kong since 26 August 1998, save for the period from 27 January to 4 June 1992 during which she was in the Philippines awaiting the processing of her employment contract. Apart from the short period from 21 to 26 January 1992 when she was permitted to remain as a visitor, her presence in Hong Kong until 14 April 1997 was on account of her employment as a foreign domestic helper. Since 14 April 1997, she remained in Hong Kong under a dependent visa which was last extended to 15 March 2003. Between then and 9 July 2003, the applicant was permitted to remain in Hong Kong to finalize her personal matters, including her divorce with Mr Cheng. After 9 July 2003, the applicant no longer has the Director’s permission to remain and her presence in Hong Kong is only “tolerated” by the Director. 46.Two issues arises out of the applicant’s reliance upon Article 24(4) of the Basic Law and paragraph 2(d) of Schedule 1 to the Immigration Ordinance. They are :
47.On the first issue, Mr Tang argues that when the applicant departed from Hong Kong on 26 January 1992, she had already secured an employment contract and she had intended to return to Hong Kong to work under the contract once the processing was completed. It is said that there is a close nexus between the periods so that her absence from 27 January to 4 June 1992 does not amount to a break in the continuity of residence. Reliance is placed on the case of Shah v. Barnet London Borough Council [1983] 1 All ER 226, 235e-236b. 48.This submission has ignored the plain fact that the applicant only had permission to remain in Hong Kong until 28 January 1992. For the period that she was in the Philippines waiting for the processing of her new employment contract, she did not have the Director’s permission to land or to stay in Hong Kong. Hence, not only was she not physically present in Hong Kong for approximately four months in 1992, but she also could not have remained in Hong Kong during the period. There can be no doubt that the applicant left Hong Kong on 26 January 1992 because her permission to stay was due to end two days later. That being the case, the period of her absence from Hong Kong until 5 June 1992 cannot be treated as ordinary residence : see the judgments of the Court of Appeal in Sun Jie also known as Sun Alex J. v. Registration of Persons Tribunal & Others,(unreported) CACV320/2004, 22 December 2005 at paras.8-11 and 21 June 2006. 49.As Mr Chow SC rightly submits, the period in question was over four months and cannot be said to be de minimus : see the majority’s view in Prem Singh v. Director of Immigration (2003) 6 HKCFAR 26, 53H-54C. 50.In the circumstances, the period between 27 January and 4 June 1992 when the applicant was not in Hong Kong cannot be counted when calculating the applicant’s years of ordinary residence. 51.Turning to the second issue, Mr Tang has advanced several arguments in support of his submission that the applicant’s stay as a foreign domestic helper can be taken into account when calculating her period of continuous ordinary residence. Firstly, he points out that while section 2(4)(b) expressly provides that any period “whether before or after the commencement of this Ordinance, of imprisonment or detention pursuant to the sentence or order of any court”, section 2(4)(a)(vi) does not contain these words. He therefore argues that section 2(4)(a)(vi) does not apply to the period before 1 July 1997, the date on which the subsection was added. Hence, the period of stay as a foreign domestic helper before 1 July 1997 can be counted towards ordinary residence. 52.Secondly, Mr Tang states that in his experience dealing with immigration cases, it is his understanding that, and he has come across cases in which, periods of presence as a domestic helper before 1 July 1997 qualify as ordinary residence. He takes the view that it is for the Director to put in evidence to say that the settled policy is to apply section 2(4)(a)(vi) to the period before 1 July 1997. Mr Tang further draws assistance from section 2(4)(a)(ix) of the Immigration Ordinance, which provides that a holder of a prescribed Central People’s Government travel document is not to be treated as ordinarily resident in Hong Kong. He argues that if this exception also applies to residence during the pre-1 July 1997 period, then employees of state enterprises who came to Hong Kong to work on the strength of such travel document will never be able to acquire permanent residence in Hong Kong, which however is contrary to what his understanding and knowledge. 53.As a starting point, the application and scope of section 2(4)(a)(vi) of the Immigration Ordinance is a matter of statutory construction. The policy, practice or understanding of the Director is not determinative of the issue. Hence, there is no need to have evidence from the Director as to how the subsection has been understood or applied by the Immigration Department. 54.Further, in ascertaining the statutory intention, it is instructive to note the legislative history of section 2(4)(a). The subsection was amended in 1997 by Ordinance No.122 of 1997. Before this amendment, section 2(4)(a) of the Immigration Ordinance began with these words :
55.By section 2(2)(a) and (d) of Ordinance No.122 of 1997, the words underlined were deleted and subsections (v) to (viii) were added to section 2(4)(a) of the Immigration Ordinance. Consequently, section 2(4)(a)(vi) now reads :
56.Thus understood, the absence of words importing a temporal limit in section 2(4)(a) of the Immigration Ordinance cannot be read as indicating that the legislature intends the subsection to apply only to periods of stay after the amendment. 57.In Huang Bingzhi v. Immigration Tribunal, (unreported) HCAL1718/2000, the applicant was a Chinese citizen who came from Guangdong to Hong Kong in 1992 as a contract worker under a Government importation of labour scheme. Yeung J (as he then was) rejected his counsel’s argument that section 2(4)(a)(v) of the Immigration Ordinance should not apply to his stay in Hong Kong before 1 July 1997 because the subsection was only added by Ordinance No.122 of 1997. Similar to section 2(4)(a)(vi), section 2(4)(a)(v) provides that ordinary residence does not include any period of stay while employed as a contract worker, who is from outside Hong Kong, under a Government importation of labour scheme. 58.The applicant’s appeal to the Court of Appeal was dismissed : CACV357/2001. Mayo VP (giving the judgment of the Court) held that at paras 12, 14-16 :
59.Although the case of Huang Bingzhi turns on another subsection in section 2(4)(a) of the Immigration Ordinance, as Mr Chow SC rightly points out, subsections (v) to (viii) were added to section 2(4)(a) as one package and should receive a similar interpretation. The decision on the construction of section 2(4)(a)(v) in the case of Huang Bingzhi should therefore apply to section 2(4)(a)(vi). 60.Mr Tang argues that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. In my view, this common law rule of construction has no application. This is because prior to the amendment to Schedule 1 to the Immigration Ordinance pursuant to section 5 of Ordinance No.122 of 1997, a non-Chinese national could not acquire permanent residence even though he had continuously ordinarily resided in Hong Kong for seven years or more. Accordingly, when section 2(4)(a) was amended by section 2 of Ordinance No.122 of 1997, there was no question of impairment of existing or accrued right. To extend the application of section 2(4)(a)(vi) to periods of stay as foreign domestic helper before 1 July 1997 does not in any way offend against the above rule and the spirit of construction. It follows that any period whether before or after 1 July 1997 in which a person remained in Hong Kong as a foreign domestic helper cannot be treated as ordinary residence for the purposes of the Immigration Ordinance. 61.As to the reference to holders of prescribed Central People’s Government travel document, counsel’s understanding and knowledge of the application of the law is immaterial. What is of significance, however, is to note that section 2(4)(a)(ix) dealing with holders of prescribed Central People’s Government travel document was only added in 2002 by Ordinance No.31 of 2002. It is therefore possible that such holders might acquire permanent residence prior to the amendment. 62.This also explains why in the case of Sun Jie also known as Sun, Alex J. v. Registration of Persons Tribunal & Others, (unreported) CACV320/2004, 22 December 2005 and 21 June 2006, there was no issue as to whether the period of the applicant’s stay as a holder of a prescribed Central People’s Government travel document, could be properly taken into account in calculating the length of his ordinary residence : see Cheung J’s judgment in HCAL186/2002 at paras 21, 25-26. 63.Hence, the period in which the applicant remained in Hong Kong as a foreign domestic helper cannot be treated as ordinary residence in Hong Kong. It follows that the earliest date from which the applicant’s residence in Hong Kong can be treated as ordinary residence is 14 April 1997, when she was permitted to remain as a dependant of Mr Cheng. By 9 July 2003 when the permission to remain in Hong Kong expired, the period of ordinary residence was only six years and a little over two months, some nine months short of the seven years requirement. 64.Accordingly, the applicant cannot claim to have a constitutional entitlement or be said to be eligible to become a Hong Kong permanent resident by the time her permission of stay expired on 9 July 2003. The basic and fundamental contention on which the applicant builds her case is thus unsustainable. That would have been sufficient to dispose of this application. For completeness sake, I will also briefly deal with the other contention. The Director’s duty to inform, alert or advise 65.The applicant argues that the Director comes under a duty to inform, alert or advise a person who as ordinarily resident in Hong Kong for a continuous period of seven years or more and is thus eligible to become a permanent resident. I do not agree there exists such a general duty. 66.As a matter of legal principle, it is clear from paragraph 3(2) of Schedule 1 to the Immigration Ordinance that a person does not have the status of a permanent resident until he has applied to the Director and the application has been approved by the Director. It is therefore incorrect to say that a person by the mere fact of having ordinarily resided in Hong Kong continuously for seven years or more, has acquired a constitutional entitlement or right to be a permanent resident. On the contrary, he acquires no such right until he applies and obtains the Director’s approval to a permanent resident : Prem Singh v. Director of Immigration (2003) 6 HKCFAR 26 at 49H–50A. 67.The case of Somporn Yoothip v. Secretary for Security & Another, (unreported) HCAL122/2004, 25 January 2006, which Mr Tang relies on, must be understood in its factual context. There, the applicant had on a number of occasions went to the Immigration Offices and applied for replacement of her identity card due to defacement or loss. By the time of her second such visit, she had already been ordinarily resident in Hong Kong for more than seven years and could have successfully applied for VEPIC. The applicant made her application on Form ROP1 which can be used for applying for an identity card as well as for a permanent identity card. Chung J found as a fact that the applicant was not aware of the need to declare to the Director her intention to take Hong Kong as her place of permanent residence or the need to make an application as required by paragraph 3(2) of Schedule 1 to the Immigration Ordinance. In the circumstances, the issue posed by Chung J, so far as is relevant, is whether the law should permit a person’s potential constitutional right to wither away because of his ignorance of the relevant legal requirement(s) of Article 24(4) of Basic Law. Chung J concluded as the applicant had by her ROP1 provided all the salient facts to the registration officer, the latter should have acted in a manner which would promote (rather than frustrate) the purpose of Article 24(4) of the Basic Law and he should have processed the application as an application for permanent identity card. 68.I do not read Somporn Yoothip’s case as establishing a general duty on the Director to inform, alert or advise an immigrant of the potential right for VEPIC. 69.Unlike the applicant in Sompson Yoothip’s case, the present applicant had not prior to 9 July 2003, taken any step which could be regarded or understood by the Director as intending to seek permanent residence. On the contrary, she had by her letter dated 9 June 2003 indicated that she did not want a dependant visa and she merely sought a limited extension for finalizing her personal affairs. Thus, even if she had at any time before 9 July 2003 ordinarily resident in Hong Kong continuously for seven years or more, which I do not accept, she could not contend that the Director had acted unfairly or unreasonably in failing to inform, alert or advise her of the need to seek VEPIC. 70.That aside, I also consider there is no proper basis for importing onto the Director a general duty to inform or advise. While there are many immigrants who wish to become permanent residents of Hong Kong, there are equally others who do not desire this, notwithstanding they have ordinarily resident in Hong Kong for seven years or more. Whether to apply under paragraph 3(2) of Schedule 1 to the Immigration Ordinance is ultimately a matter of choice and personal decision for the individuals. Thus viewed, there is no compelling reason to place the Director under such an onerous duty to inform, alert or advise the many applicants who attend the immigration offices on a day-to-day basis for a variety of purposes. 71.In short, I do not accept that the Director, generally or in the context of this case, has the duty contended by the applicant. Conclusions 72.For the above reasons and analysis, the application for judicial review fails. Accordingly, I dismiss the application. Applying the normal rule of costs follow event, I make an order nisi that the applicant pays the costs of the respondent, to be taxed if not agreed. The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.
Mr Stephen Tang, instructed by Messrs Littlewoods, assigned by the Director of Legal Aid, for the Applicant Mr Anderson Chow SC, instructed by the Department of Justice, for the Respondent. Appeal dismissed: see CACV272/2006 dated 3 August 2007 |
Cases cited in this judgment