Commissioner of Registration v. Registration of Persons Tribunal

HCAL 39/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 39 OF 2005

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BETWEEN

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Before: Hon Reyes J in Court

Date of Hearing: 25 January 2007

Date of Judgment: 25 January 2007

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J U D G M E N T

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I. INTRODUCTION

1.On 27 January 2005 the Tribunal found that Mr. Bruce was a Hong Kong permanent resident.  The Tribunal held that Mr. Bruce was entitled to be issued with a Hong Kong permanent identity card.  The Tribunal accordingly allowed Mr. Bruce’s appeal against the Commissioner’s decision of 17 October 2003 not to issue a permanent identity card to Mr. Bruce.

2.The Commissioner applies for judicial review of the Tribunal’s decision.  In particular, the Commissioner says:-

(1) Under the Immigration Ordinance (Cap. 115) (IO), to qualify for permanent residence, a non-Chinese national such as Mr. Bruce must show that he has ordinarily resided here for a relevant period of 7 years.  Mr. Bruce could not at law have been ordinarily resident in Hong Kong for the relevant period of 7 years.

(2) Even if Mr. Bruce could be regarded as having been ordinarily resident here at the outset of the relevant 7 year period, he ceased to be so in light of long absences from the HKSAR.  Mr. Bruce cannot have been regarded as merely temporarily absent from Hong Kong.

(3) There was no evidence that Mr. Bruce had taken Hong Kong as his place of permanent residence at any time before or after the establishment of the HKSAR.

II. BACKGROUND

3.In March 1950 Mr. Bruce was born in the UK to a British father and a German mother.  He claimed both British and German citizenship.

4.In 1972 he married a German wife.  He had 3 children by his German wife.

5.Between 1978 and 1986 he worked for a German company in Saudi Arabia and Germany.

6.On 11 November 1987 he entered Hong Kong on a British passport.  He was granted permission to stay for 6 months until 11 May 1988.

7.On 19 November 1987 his permission to stay was extended to 11 May 1991 and he was allowed to take up employment.

8.On 20 November 1987 a Hong Kong identity card was issued to Mr. Bruce.  The card bore a “C” code denoting that Mr. Bruce was subject to conditions of stay.

9.Between 1987 and 1989 Mr. Bruce worked for a German conpany in Hong Kong.

10.In November 1989 Mr. Bruce bought a property on Lamma Island.  He lived there with Ms. Estacion (formerly his Filipino domestic helper) as man and wife.  He had 2 children by Ms. Estacion.

11.On 4 April 1991 Mr. Bruce’s permission to stay was extended to 11 May 1994.

12.Mr. Bruce lost contact with his German wife (from whom he had already long been estranged) in 1993.

13.On 26 April 1994 Mr. Bruce’s permission to stay in Hong Kong was extended to 11 May 1997.

14.On 4 April 1995 Mr. Bruce renounced his British citizenship.

15.On 6 April 1995 Ms. Estacion left Hong Kong with her 2 sons to live in the Philippines.  Mr. Bruce also moved to Manila with his family.

16.On 11 October 1995 Mr. Bruce used his British passport for the last time to leave Hong Kong.

17.On 30 October 1995 Mr. Bruce obtained a German passport.  He returned to Hong Kong on 26 November 1995 using that German passport.  He was given permission to stay as a visitor for 1 month.

18.On 25 April 1997 Mr. Bruce was granted immigrant status in the Philippines.  That status was converted to permanent residence by Philippine law.

19.On 29 April 2003 Mr. Bruce filed an Application for Verification of Eligibility for Permanent Identity Card with the Hong Kong Immigration Department.

20.The Commissioner refused the application on 30 May 2003. 

21.There was (the Commissioner said) no indication that Mr. Bruce had ordinarily resided in Hong Kong for a continuous period of at least 7 years before the date of his application.  The Commissioner thought that Mr. Bruce’s claim to permanent resident status under IO Schedule 1, §2(d) had thus not been established.

22.The Commissioner also looked into whether Mr. Bruce could be regarded as a Hong Kong permanent resident before 1 July 1997 in accordance with transitionally applicable criteria in IO Schedule 1, §6(1).  The Commissioner, however, concluded that Mr. Bruce did not fall within any category mentioned in §6(1).

23.On 17 October 2003 Mr. Bruce formally applied for a Hong Kong permanent identity card.  The application was refused on the same day.

24.On 20 October 2003 Mr. Bruce appealed to the Tribunal.  The appeal was heard on 30 December 2004.  Mr. Bruce succeeded on appeal.

25.By e-mail dated 5 January 2007 Mr. Bruce indicated that he was unlikely to attend the judicial review before me.  The e-mail stated that Mr. Bruce’s absence would be due to having to leave Hong Kong on 6 January 2007 to fulfil “domestic parental obligations”.

26.Note that between 1996 and 2003 Mr. Bruce travelled to and from Hong Kong on numerous occasions.

III. DISCUSSION

A.      Could Mr. Bruce have been “ordinarily resident” here continuously for 7 years as a matter of law?

27.Under Basic Law Article 24 and IO Schedule 1, §2(d), non-Chinese nationals who have:-

(1) entered Hong Kong with a valid travel document;

(2) ordinarily resided here for a continuous period of not less than 7 years; and,

(3) taken Hong Kong as their place of permanent residence before or after the establishment of the HKSAR,

qualify as Hong Kong permanent residents.

28.It is not disputed that Mr. Bruce came to Hong Kong on a valid travel document.  The real question is whether he can be said to have ordinarily resided here for a continuous period of at least 7 years.

29.The effect of IO Schedule 1, §1(4)(b) is that a non-Chinese national seeking to establish permanent residence must show at least 7 years’ continuous ordinary residence in Hong Kong immediately before the date when he applies to the Director of Immigration for permanent resident status.

30.Since Mr. Bruce applied to verify his eligibility for a permanent identity card on 29 April 2003, he therefore had to show continuous ordinary residence here from 29 April 1996 to 29 April 2003.

31.The difficulty is that, having renounced his British citizenship, since 26 November 1995 Mr. Bruce has been travelling back and forth from Hong Kong as a German citizen on a German passport. 

32.That means that, since 26 November 1995, on each occasion when Mr. Bruce entered Hong Kong, he did so as a visitor with permission to stay for only a limited period of time (usually 1 month).

33.Thus, since 26 November 1995, as a visitor with a limit of stay, whenever Mr. Bruce left Hong Kong, the remaining period of his permission to stay would have expired.  See IO s. 11(10).

34.It follows that, since November 1995, during any period of absence from Hong Kong, his limit of stay having expired upon departure from the HKSAR, Mr. Bruce would have had no lawful permission to enter or reside here. 

35.Mr. Bruce cannot then have been ordinarily resident in Hong Kong at the time of his often lengthy absences from here.  This is clear from Sun Jie aka Sun, Alex J v. Registration of Persons Tribunal andothers, CACV 320/2004, 22 December 2005. 

36.In Sun Rogers VP (wih whom Le Pichon JA and Sakhrani J agreed) pointed out (at §9) that “it is impossible for somebody to be ordinarily resident in a place when he cannot be resident there”.

37.Rogers VP reiterated (at §10):-

“[O]rdinary residence must entail presence in that place [where a person claims to reside] and if a person cannot lawfully be in that place he cannot reside there, still less can he be ordinarily resident there.”

38.Mr. Bruce being frequently absent from Hong Kong during the 7 years immediately before 29 April 2003, he cannot be regarded as having been ordinarily resident here on a continuous basis over those 7 years.

39.Although it noted that after 26 November 1995 Mr. Bruce could only enter Hong Kong as a visitor, the Tribunal did not consider the implications of such status on whether Mr. Bruce could still be regarded as ordinary resident during his periods of absence from the HKSAR.

40.The Tribunal said (at Reasons for Decision §§21-22):-

“When the Appellant [Mr. Bruce] first travel[l]ed back from the UK to Hong Kong on 26th November 1995, in the absence of his former British Passport ..., being returned to the German Consulate at the time, he was only permitted to remain as a visitor in Hong Kong for the duration of 1 month, with the presentation of the new German Passport...  Records do show in light of the Appellant’s change of status, he was only granted permission to stay in Hong Kong as a visitor, ranging from the duration of 1 month during the earlier period from 1995 to 1998 ..., which was subsequently extended to 3 months, commencing from 28th March 1999 onwards ....

It was the case of the Appellant that when he first landed at Kai Tak Airport on 26th November 1995, he did make enquiries with the Immigration officials there regarding the recent change of status, only to be told that he could no longer have the UK ‘C’ status transferred to his New German Passport ...  Thereafter, upon clearance, he was only granted conditional stay as a visitor, to which he thought was the end of the matter and that he must leave Hong Kong at the expiry of the 1-month period.  Out of desperation, the Appellant did seek advice from his fellow-countrymen and a lawyer on an informal basis, all of whom shared this view.  This was basically the reason that accounts for his move to the Philippines.  It was the Appellant’s contention that there were previously no such brochures, or printed pamphlets, as readily available at present time that could have enabled him to make reference to, regarding the issues of the right of abode, or Permanent Residence.  Only upon his return to Hong Kong in or about April 2003 was he made aware of the first time that he was entitled to apply for Permanent Resident status.”

41.The Tribunal appears to have assumed, contrary to Sun, that (despite his visitor status) Mr. Bruce could still be ordinarily resident in the HKSAR even when absent from here for significant periods in any year.  That assumption runs contrary to the dicta from Sun already quoted.

42.The Tribunal thus fell into an error of law.  The error vitiates its conclusion that Mr. Bruce met the criteria of permanent residence in the Basic Law and IO.

43.For the sake of completeness, Mr. Daniel Wan (appearing for the Commissioner) also took me through IO Schedule 3, §3(1) and Schedule 1, §6.  This was to demonstrate that neither provision was relevant here.  I am satisfied that is the case.

B. Could Mr. Bruce have been regarded as only being temporarily absent from Hong Kong?

44.Assume the conclusion in the preceding section of this Judgment is wrong.  Assume instead that Mr. Bruce may be treated as having been ordinarily resident here in (say) April 1996. 

45.The question is whether Mr. Bruce ceased to be ordinarily resident as a result of his absences from Hong Kong between April 1996 and April 2003.

46.IO s. 2(6) provides that a person does not cease to be ordinarily resident merely because he is temporarily absent from here.  The section states:-

“The circumstances of the person and the absence are relevant in determining whether a person has ceased to be ordinarily resident in Hong Kong.  The circumstances may include:-

(a)     the reason, duration and frequency of any absence from Hong Kong;

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

(c)     employment by a Hong Kong-based company; and,

(d)     the whereabouts of the principal members of his family (spouse and minor children).”

47.On the effect of Mr. Bruce’s absence on any ordinary residence by him, the Tribunal stated (at Reasons §§34-38):-

“Moreover, the Tribunal is of the view that the Appellant has never abandoned Hong Kong as his Permanent Residence.  His frequent returns from the Philippines to Hong Kong, for all these years, from end of 1995 to 2003, albeit of short durations only, attributable to the restrictions so imposed on him, has, undoubtedly, demonstrated his love and affection of the place, which, in the circumstances, has amounted to a sufficient degree of continuity to be properly described as settled as in R v. BarnetLondon Borough Council ex parted Shah [1983] 2 AC 309.

Still further, we are of the firm belief that had it not been the visitor status so imposed on him dated back in November 1995, the Appellant and his family would have continued to stay in Hong Kong for the whole time.  It is also understandable that as the circumstances called for principal members of the family of the Appellant, consisting of the Common-law Wife [Ms. Estacion], his 3rd and 4th Son [Mr. Bruce’s children by Ms. Estacion], being dependants only, would have, no other alternative, but to leave for the Philippines after the husband and father losing his resident status in Hong Kong.

Furthermore, over the years, the Appellant has never sold, or rented out, the [Lamma] Property but has simply kept and maintained it.  This shows all the more that the Appellant wants to retain the Property, with a view to facilitating his stay in Hong Kong as his permanent home.  His motive is further supported by his foreign-currency deposit account with the Standard Chartered Bank in Hong Kong.

It is worthy of mentioning that although we have drawn to the attention ... that the Appellant was a frequent trave[l]er to other parts of Asia, including, Japan, Taiwan, and more particularly, Thailand, we opine that this fact does not in any way preclude him from establishing Hong Kong to be his permanent home, as he only stayed in those countries for a very short span of time and that he merely went there for pleasure and/or transit and/or looking for business opportunities.

On the whole, we accept that the Appellant has a just cause for his absence from Hong Kong during the period from the end of 1995 to the time of the application of [a Hong Kong permanent identity card] in or about April 2003 and that he has not ceased to be an ordinarily resident in Hong Kong.  We also accept that the Appellant has never treated the Philippines as his permanent home but as a mere temporary residence.”

48.Mr. Wan says the Tribunal’s reasoning is contradictory.  I agree. 

49.Mr. Bruce plainly left Hong Kong to live in the Philippines because his permissions to stay were limited to 1 month or so at any given time.  Mr. Bruce has himself said that was why he left Hong Kong.

50.Mr. Bruce could thus not have regarded his absences from the HKSAR as merely temporary breaks in a continuing period of ordinary residence here. 

51.What Mr. Bruce might have intended or done if a limit of stay had not been imposed, is pure hypothesis.  It is irrelevant to consider (as the Tribunal attempted to do) what would have been Mr. Bruce’s intention under a “no limit” of stay scenario, because such scenario never happened.  Mr. Bruce simply left because he believed, rightly, that he could not remain or reside here beyond limits of stay imposed on him as a visitor.

52.Insofar as the Tribunal placed weight on Mr. Bruce’s likely intention if he had been under no limit of stay, the Tribunal’s reasoning was wrong.

C. Could Mr. Bruce be said to have taken Hong Kong as his permanent residence?

53.In Prem Singh v. Director of Immigration (2003) 6 HKCFAR 26 (at §64), Ribeiro PJ stated the following test for permanent residence:-

“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.  This means that the applicant must show that his residence here is intended to be more than ordinary residence and that he intends and has taken action to make Hong Kong, and Hong Kong alone, his place of permanent residence ...”

54.Mr. Wan submits that it is not clear how the Tribunal applied the test in Prem Singh.  It is not apparent (Mr. Wan says) what evidence the Tribunal relied on to reach its conclusion that Mr. Bruce had taken active steps to make Hong Kong (and Hong Kong alone) his permanent residence.

55.I agree that the Tribunal’s decision is unsatisfactory in the respect identified by Mr. Wan. 

56.The Tribunal mentions that Mr. Bruce was a frequent traveller to Hong Kong.  It refers to his Lamma home and to his having a foreign currency deposit account here.  Those seem to be the sole factors upon which the Tribunal relied.

57.But precisely how do those factors qualify as steps to make Hong Kong (and Hong Kong alone) one’s permanent residence? 

58.On the face of it, mere frequent travel in and out of here cannot show an intention to make Hong Kong a permanent residence.

59.The Lamma property was purchased in 1989 and has not been sold or rented since then.  The property is obviously a pertinent factor in the determination of permanent residence.  But it is not obvious why and how the Tribunal regarded this circumstance as balancing Mr. Bruce’s departure with his family from Hong Kong to Manila.

60.As for keeping a bank account, that is of some significance.  But, given the relative ease with which a bank account may be opened by anyone (whether resident here or not), it would not by itself normally be sufficient evidence of the permanence requirement in Prem.

61.Looking at the 3 factors specifically identified by the Tribunal individually and as a whole, they would seem to be slender premises on which to hold that the test in Prem had been met.

62.The Tribunal’s decision does not deal with the queries just raised.  The reasoning in the Tribunal’s decision is thus (I think) insufficiently articulated and so flawed.

IV. CONCLUSION

63.The 3 grounds discussed in Sections III. A to III. C of this Judgment individually and collectively constitute grounds for quashing the Tribunal’s decision as unreasonable.

64.As a result, the judicial review is allowed.  The Tribunal’s decision is quashed.  I shall hear counsel on costs and any consequential orders.

Mr Daniel Wan, instructed by the Department of Justice, for the Applicant

Respondent in person, absent