Gutierrez Josephine B. v. Commissioner of Registration and Another

HCAL 136/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 136 OF 2010

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BETWEEN

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AND

HCAL 137/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 137 OF 2010

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BETWEEN

Before: Hon Lam J in Court

Date of Hearing: 26 October 2011

Date of Judgment: 10 November 2011

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J U D G M E N T

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1.These Applicants are mother and child and they apply by judicial review to challenge the refusals of the Commissioner to issue permanent identity cards to them. Their appeals to the Registration of Persons Tribunal were dismissed on 31 May 2010. The mother is a Philippine national and she has been working in Hong Kong as a foreign domestic helper since 1991. Her application involves a challenge to the constitutionality of Section 2(4)(a)(vi) of the Immigration Ordinance [“the Impugned Provision”]. For reasons explained below, the validity of her claims also has bearing on the application of the child. The child was born in Hong Kong on 1 December 1996 and he is now almost 15 years old.

2.In the test case of Valiejos Evangeline B v Commissioner of Registration HCAL 124 of 2010, this court ruled in the judgment of 30 September 2011 that the Impugned Provision is inconsistent with Article 24(2)(4) of the Basic Law. For all intents and purposes, that judgment disposed of this issue in the present proceedings.

3.The remaining issues in respect of the mother’s case are,

(a)   Whether the Tribunal was correct in concluding that the mother did not satisfy the ordinary residence requirement;

(b)   Whether the Tribunal was correct in concluding that the mother did not satisfy the permanence requirement.

4.The same issues are pertinent to the child’s case because the Tribunal held at para.73 of its Decision that,

“… the Tribunal accepted the principle that an infant of tender age was not capable of forming an intention on his place of permanent residence and whether his residence amounted to ordinary residence should be viewed against his mother’s residence because she lived with him at all material time.”

5.Ms Li SC challenged this approach to be wrong in law.

6.Another issue arising in the child’s case (but not in the mother’s case) is the finding of the Tribunal at para.79 of the Decision,

“Apparently, when the [child] left Hong Kong on 31 March 2004, his prior stay in Hong Kong could not be treated as a period continuous to the period when he stayed in Hong Kong on the strength of a new visitor visa. The latest visitor visa granted to the [child] prior to the date of submitting the VEPIC application was 17 April 2004. So in any event, the [child] could not satisfy the requirement of ordinary residence in Hong Kong for at least 7 continuous years prior to his VEPIC application.”

This has to be understood in light of the Tribunal’s reference to the movement records of the child at para.77 and to the effect of Section 11(10) of the Immigration Ordinance at para.78.

7.Ms Li also challenged this finding as wrong in law.

8.The backgrounds in respect of the mother and child are set out in the Agreed Facts adopted by the parties before the Tribunal. I annex the Agreed Facts to this judgment. The relevant VEPIC applications were filed on behalf of the mother on 21 December 2006 and on behalf of the son on 20 December 2006 respectively. Insofar as there are other facts or evidence relevant to each remaining issue, I will refer to the same in my discussion on each issue.

The role of the court

9.Before I embark on the consideration of the grounds of challenge raised by Ms Li, it is necessary to set out clearly the role of the court in the exercise of its judicial review jurisdiction concerning decisions of the Commissioner and/or the Director of Immigration in immigration matters. These public officials are given the primary duty in assessing whether an applicant satisfies the requirement of the law in applications relating to verification for eligibility to permanent identity card. 

10.In Ng Ka Ling[1] at p.36 to 37, the Court of Final Appeal held that a scheme for the verification of a person’s claim to be permanent resident by the Director is constitutional.  The following dicta also confirmed that the primary decision maker in the process of verification is the Director, not the court,

“In holding the scheme … to be constitutional as it is directed towards verification, we have taken into account that the Director must operate it lawfully in a fair and reasonable manner and that there are safeguards to which its operation is subject.”

11.This is reiterated in Prem Singh[2]  by Ribeiro PJ at paras. 56 to 58.  At para.58, His Lordship said,

“Accordingly, a non-Chinese person claiming the right to permanent resident status and hence a right of abode, must apply to the Director for his claim to be verified. In accordance with BL art.24(2)(4), the Director is entitled to seek evidence which would establish that the applicant satisfies the entry, seven year and permanence requirements …”

12.In making decisions in the verification process, the Director (and Tribunal in hearing appeals) bears primary responsibility as in the case of the Secretary for Security in processing a claim under the United Nations Convention Against Torture. Thus, in this respect, the observation by Chief Justice Li as to the role of the court in the latter context in Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at para.45 is equally apposite in the present context,

“It is for the [Director] to make such a determination. The courts should not usurp that official’s responsibility. But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required standards of fairness have been met. … If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

13.In the recent judgment in TK v Michael Jenkins HCAL 126 of 2010, 21 October 2011, this court discussed the role of the court in a judicial review in the context of a CAT claim at paras.26 to 29. I have referred counsel to this judgment at the hearing on 26 October and neither Ms Li nor Lord Pannick QC contended that a different approach should be adopted in the present context.

14.Hence, though it is ultimately for the court to decide what is the law pertaining to the ordinary residence and the permanence requirements, the primary decision maker who makes the relevant finding of facts and applies the facts to the law is the Director (and on appeal, the Tribunal). In respect of matters which fall within the primary remit of the Director, the court would only intervene on traditional judicial review grounds though examining the primary decisions with anxious scrutiny given the fundamental nature of the right being involved.

15.As explained in TK v Michael Jenkins, under this approach, insofar as the application of the relevant legal principle involves value judgments, the court would not disturb such value judgments on the part of the primary decision maker unless it is shown to be unreasonable on the enhanced Wednesbury standard. To the same effect is the judgment of Moses LJ in R (Davies) v Revenue and Customs Commissioners [2010] STC 860 at para.15 cited by Lord Pannick.

The mother’s failure to satisfy the permanence requirement

16.The Tribunal referred to the judgment of Ribeiro PJ in Prem Singh as to the law on the permanence requirement. It summarized the relevant test at para.44 of the Decision,

“The permanence requirement therefore includes both a subjective and an objective element. The appellants had to prove that during the relevant period up to the time of submitting the VEPIC application they had satisfied the permanence requirement by proving that (a) they intended to reside permanently in the HKSAR and (b) they had taken action with a view to residing permanently in the HKSAR and nowhere else.”

17.The Tribunal also referred to Paragraph 3(1)(a) of the Schedule to the Immigration Ordinance and took the matters set out in that provision into account in assessing whether the mother satisfied the permanence requirement.

18.After referring to the evidence and the facts, the tribunal examined various specific matters,

(a)   The Tribunal paid special regard to the answers given by the mother to the Director and came to the conclusion that she maintained a strong tie and connection with the Philippines (para.57);

(b)   The Tribunal explained how it weighed the evidence as regards the religious activities of the mother and said, “… Such activities might throw some light on her quality of life during her leisure time; it did not support her claim of ‘ordinarily resident’ in Hong Kong conclusively” (para.58);

(c)   The Tribunal rejected the mother’s reliance on her taking out a Lifetime Protection Plus policy with the HSBC in respect of the permanence requirement because the policy was taken out in about July 2008, one and half year after she filed her application (para.59);

(d)   After reiterating the test for the permanence requirement (paras.60 and 61), the Tribunal concluded at para.62,

“Having carefully considered the evidence submitted by both sides, in particular, the Agreed Facts A, the First Affidavit, the exhibits annexed with the Summary of Case and the 3 affirmations filed by the Respondent, the Tribunal could not conclude that the [mother] had taken any steps with a view to residing permanently in Hong Kong or that the [mother’s] presence in Hong Kong amounted to ‘ordinarily resident’ here and her presence in Hong Kong was voluntarily and for settled purpose. …”

19.The main attack advanced by Ms Li in her oral submissions at the hearing was that the Tribunal failed to make the relevant finding of facts and to give adequate reasons for its conclusions. Counsel submitted that it is impossible to discern how the Tribunal had applied the facts to the Shah test[3], in particular the Tribunal did not address why it concluded that the mother did not adopt Hong Kong as her abode voluntarily and for settled purpose.

20.In respect of the conclusion of the Tribunal on the permanence requirement, Ms Li submitted that the Tribunal failed to take the following relevant matters into account or failed to attach sufficient weight to them. Ms Li also submitted that the Tribunal’s determination in this regard is irrational and/or biased.

“(1) She has been in Hong Kong for almost 19 years and has taken Hong Kong as her place of permanent residence and has completely integrated into the local society;

(2) She does not have a “home” in the Philippines. Her husband and she have been separated since 1992 and he is now living with another woman in the Philippines with whom he has two children;

(3) Her children from her marriage with her husband in the Philippines are all grown up and having their own lives. Two of her other children Ceasar and Marc John are currently working in Hong Kong as FDHs;

(4) Her mother is in the Philippines and is being supported by her other children;

(5) She does not own any land or property in the Philippines. All of her assets are located in Hong Kong. In particular, she has taken out a Lifetime Protection Plus policy with the HSBC that requires instalment payments up to the age of 65;

(6) Her future lies in Hong Kong. She plans to continue to live and work in Hong Kong to save for her old age, and to support Master Gutierrez until he is old enough to stand on his own;

(7) She enjoys a cordial relationship with her current employers’ family. Her employers are kind, understanding and supportive to her. They treat her and her son as part of their family;

(8) Her son has developed a close bond with her employer’s son Zachary, who is seven years old, and who often introduces her son to his friends as “brother”. Her employer’s family also welcome Marc and Ceasar to visit;

(9) She has developed her social circle in Hong Kong. She is an active member of the Kowloon Filipino Baptist Church. She was baptized into the Baptist faith in February 2003 and worships there every Sunday. She also takes part in the choir during services and is involved in sharing the gospel of Christ with new people in the church. Over the years, her involvement in the Church has grown, and she has participated in many activities, fundraising events and ongoing training and education organized by the Church.”

21.Ms Li also referred to the de-registration of the mother as a voter in the Philippines. At para.52 of the Decision, the Tribunal alluded to this. It cannot have any relevance to this application because she only did so after she filed her VEPIC application.

22.This court invited parties to focus on the permanence requirement at the oral hearing because if the mother failed to persuade this court to intervene the Tribunal’s decision on that requirement her application for judicial review cannot succeed.

23.Despite that, in view of Ms Li’s submissions, I will say a few words on the ordinary residence aspect. To be fair to the Tribunal, it did refer to the Shah test extensively at para.32 of the Decision. However, the Tribunal also referred to the submissions of the parties on the Australian case of Clarke v Clarke [1964] VR 773. At para.37 of the Decision, the Tribunal appears to accept the approach of Smith J in that case to be persuasive.

24.The way in which the Tribunal dealt with the issue of ordinary residence indicated that it placed substantial weight on the connection maintained by the mother with her home country. In so doing, the Tribunal was obviously influenced by the dicta in Clarke relied upon by counsel for the Commissioner (cited at para.35 of the Decision).

25.Unfortunately, it seems that neither party referred the Tribunal to the observations of Lord Scarman in Ex p Shah at p.342 E to H including His Lordship’s remarks on Clarke[4]. Though His Lordship said that the case was correctly decided on its facts, insofar as the approach adopted in it was inconsistent with the principles of law set out in the earlier authorities His Lordship would have rejected the same.

26.Bearing in mind the different context in which the issue arose in Clarke and the caution of Lord Scarman, I do not think it is helpful for reference to be made to that case in the present context. Though I have not heard submissions from Lord Pannick in this regard (and no reference was made to this aspect of the decision of the Tribunal in the skeleton submissions), it is difficult to escape from the impression that the Tribunal had been led astray by its reliance on Clarke from applying the Shah test properly.

27.Coming back to the permanence requirement, the Tribunal correctly directed itself to the test laid down in Prem Singh. The Tribunal was correct in identifying that there are both subjective and objective aspects in the test. Given that the requirement must be satisfied before the filing of the application according to Fateh Muhammad [5], the Tribunal was correct in rejecting any reliance on the insurance policy.   

28.At para.62 of the Decision, the Tribunal specifically stated it was not satisfied that the mother had taken any steps with a view to residing permanently in Hong Kong. As submitted by Lord Pannick, this referred to the objective aspect of the test. In this connection, it is perhaps helpful to recap what Ribeiro PJ said at paras.64 and 66 of Prem Singh[6],

“64. 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. The nature of the permanence requirement may be illuminated by contrasting the ‘taking of Hong Kong as a person’s place of permanent residence’ with merely ordinary residence in Hong Kong.” (my emphasis)

“66. The permanence requirement in BL art.24(2)(4) demands more in at least two respects. The intention must be to reside, and the steps taken by the applicant must be with a view to residing, in Hong Kong permanently or indefinitely, rather than for a limited period. Such intention and conduct must also be addressed to Hong Kong alone as the applicant’s only place of permanent residence. …” (my emphasis)

29.The following propositions can be derived,

(a)   As submitted by Lord Pannick, the contrast made between the permanence requirement and the ordinary residence requirement shows that, in general, actions or conducts which are referable to ordinary residence are not per se sufficient in meeting the permanence requirement. Otherwise, His Lordship would not describe the permanence requirement as demanding more;

(b)   Having said so, it does not mean that actions or conducts referable to ordinary residence would not be relevant at all. I can readily envisage that there are cases where the concrete step relied upon by an applicant has to be considered in light of other actions or conducts for the purpose of assessing the intention of the applicant behind such step;

(c)   But there has to be some objective concrete steps taken by an applicant for the purpose of making Hong Kong his or her only permanent residence;

(d)   Such steps must be addressed to the taking up of Hong Kong, and Hong Kong only, as permanent residence. Thus, steps taken to sever one’s link with his or her country of origin are not enough.

30.There is a distinction between severing link with one’s country of origin and the making of Hong Kong as one’s permanent residence. Before one can make a place his or her only permanent residence, he or she must take some concrete steps turning such aspiration into a realistic proposition in terms of long term livelihood at that place. This can either be achieved by one’s independent means or the sponsorship of other persons.

31.If an applicant can produce evidence of such concrete step, then the evidence as to the severance of link with the country of origin would be relevant in making good a case of taking Hong Kong as the only place of permanent residence. But an applicant cannot rely on the latter without the proof of the former.

32.Paragraph 3(1) of Schedule I to the Immigration Ordinance requires an applicant to furnish certain information to the Director when he or she makes an application for verification of eligibility.  In the judgment of 30 September 2011 in HCAL 124 of 2010, this court observed at para.115 that whilst the information provided is relevant it may not be determinative. Neither Ms Li nor Lord Pannick argued against that proposition at the hearing on 26^th October.

33.I have considered the list of matters Ms Li relied upon in conjunction with the Affidavit of the mother filed in ROPT No.175 of 2008 on 7 April 2010. Applying the enhanced Wednesbury test, I am unable to say that the conclusion of the Tribunal is irrational or unreasonable. Nor do I see how the Tribunal can be criticized for failing to take relevant matters into account. As Lord Pannick submitted, most of the matters referred to in that list were matters referable to the ordinary residence of the mother. The only exception is the insurance policy, which for good reason, the Tribunal ruled to be irrelevant for the purpose of this VEPIC application[7]. As regards other matters on the list, none of them can really be regarded as concrete step towards taking Hong Kong as the only permanent residence of the mother.

34.Some of the matters in the list deal with the mother’s link with the Philippines. As explained above, those matters cannot be a substitute for evidence as to concrete steps taken towards making Hong Kong as her permanent residence.  The other matters in the list deal with the mother’s (and her son’s) social connections in Hong Kong. But such social connections lack the requisite quality: they cannot be regarded as steps turning an aspiration to have Hong Kong as her permanent residence into a realistic proposition in terms of long term livelihood. 

35.This is self-evident from the list. The only item I need to comment on is her relationship with her current employer’s family. The mother’s own affidavit stated that she worked for this employer for nearly two years since 2008. In other words, when she submitted her application for verification on 21 December 2006, she was working for another employer. That previous employment, according to the Agreed Facts, was terminated on 26 April 2008. She signed a FDH employment contract with the new employer on 25 April 2008 and permission was granted by the Director for her to work for this new employer on 26 June 2008. Thus, her relationship with the family of this new employer cannot assist her in the present application.

36.In any event, unlike the successful applicant in HCAL 124 of 2010, there is no evidence to suggest that the employer would sponsor her livelihood in Hong Kong in support of her application for permanent residence.

37.Turning to Ms Li’s contention as to inadequacy of reasons, I have referred to the legal requirement as to the Tribunal’s duty to give reasons in my judgment in the Domingo case, HCAL 127 & 128 of 2010, 3 November 2011, paras.16 and 17 and the judgment in TK v Michael Jenkins HCAL 126 of 2010, 21 October 2011, paras.88 to 90.

38.Further, the adequacy of reasons has to be considered against the arguments advanced before the Tribunal. In the written submissions placed before the Tribunal, counsel for the mother relied on the same matters (now relied upon by Ms Li) to contend that she had satisfied the permanence requirement. The Tribunal applied the correct test and asked itself the right question: whether the mother had taken any steps with a view to residing permanently in Hong Kong. It answered in the negative. Though it had not set out the list of the matters item by item, it is clear from a fair reading of the Decision that it very much had such list in mind when it made the determination. The fact that it chose to refer to some more pertinent items only cannot reasonably justify an inference that it had neglected other items which, as explained above, are of no real assistance to the case of the mother. 

39.Given the self-evident irrelevance of the other items, I am of the view that the Tribunal has given adequate reasons for its decision in holding that the mother did not satisfy the permanence requirement.

40.Therefore the challenge by the mother fails.

Permanence requirement in respect of the son

41.The Tribunal accepted the submission of the Commissioner based on In re P (GE) (an infant) [1965] 1 Ch 568 and applied it in Para.73 of its Decision.

42.That case concerned a wardship application. In modern parlance, it is a child abduction case. The child in question was brought by his parents into England in 1957.  After living in England for several years, the father separated with the mother. The child lived with the mother though arrangement was made so that he saw his father regularly. Without the consent or prior notice to the mother, the father took the child to Israel in November 1962. The mother commenced wardship proceedings in the English court. At first instance, the judge held that the court had no jurisdiction because the child was not physically present in England and he was an alien. On appeal, the Court of Appeal held that the English court had jurisdiction over a child ordinarily resident within England though he was neither a British subject nor physically present when the proceedings were taken out. 

43.The three members of the Court of Appeal reached the conclusion that the child was ordinarily resident in England on different bases. The Tribunal alluded to the judgment of Lord Denning MR which provided support for its approach.

44.More recent authorities can be found in the context of cases decided under the Hague Convention on Child Abduction. In Re B [1993] 1 FLR 993, Waite J held at p.995,

“The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.”

45.This is a rule based on common sense. As a matter of law, the parents of a child have the power to determine where a child should live and at the same time have the duty of taking care of and maintaining the child. Conversely, a child usually has no independent means to provide for himself and cannot determine for himself where he would reside contrary to the wishes of his parents. Thus, there have been cases decided under the Convention where the court sent a child back to his country of habitual residence even though the child objected. It is therefore impossible to apply the concept of ordinary residence to a child without having regard to the position of the parents. Under the Shah test, in assessing whether a child is staying at a place voluntarily and for a settled purpose, one must have regard to the situation of his parents.

46.I see no reason why these considerations should not be applied in the context of Article 24(2)(4). By the same token, as a matter of common sense, the same consideration applies in the context of the permanence requirement. This is implicitly recognized in Paragraph 3(1)(b) of Schedule 1 to the Immigration Ordinance. 

47.The rule has since been applied in many cases, including cases in Hong Kong, see for example N v O [1999]1 HKLRD 68. I referred this case to the parties at the hearing. In my experience in hearing Convention applications, the court in that context always applied the approach that the habitual residence of a child depends upon the intention of his or her primary carer. There are cases where the habitual residence of a child was held to be different from that of the primary carer, but that still depends on the intention of the primary carer. I discussed those cases in my judgment in LCHY v CWF [2003] 3 HKC 508 at paras.29 to 38. I did not refer parties to that judgment as I did not recollect its potential relevance before the hearing.

48.I have considered whether I should invite further submissions on that case. In view of what I shall say below, I decide that it is not necessary and I should not delay in giving judgment in view of the general public importance of other issues decided in these cases.

49.The reason for taking this course is that, as I have indicated at the hearing, the crucial issue in these cases is the permanence requirement. As regards the approach in assessing whether a child satisfies this requirement, as submitted by Ms Li, a child of tender age would not have the ability to satisfy the objective aspect in terms of taking concrete steps to make Hong Kong his permanent residence. He must depend on his parents. Thus, in a case like the present where the mother (being the sole carer of the child) cannot satisfy this aspect of the permanence requirement, it is unlikely that her child could satisfy the same.

50.Ms Li submitted it is wrong to adopt this approach as if it is a rule of law applicable in all cases and one must have regard to the facts of the case. I agree it is necessary to have regard to the individual facts of the case. But I do not think the Tribunal adopted such an inflexible approach. The Tribunal carefully said at para.73 that the intent for permanent residence and the ordinary residence for a child “should be viewed against his mother’s residence because she lived with him at all material time”. Then at para.74 the Tribunal referred to the lack of association with the child’s father. The Tribunal said, “It was therefore sensible to take the [son’s] ordinary residence and permanence issues as his mother’s.” At para.75, the Tribunal referred to the evidence before it, thus having regard to the facts of these cases.

51.In her skeleton submissions, at Ms Li referred to the following matters to contend that the son had satisfied the permanence requirement. These are the same matters as set out in counsel’s submissions placed before the Tribunal.

“(1) The root of Master Gutierrez is in Hong Kong. He was born in Hong Kong and grows up here. He does not have a home in the Philippines or anywhere else. Hong Kong is his home and he wants to live here and be taken care of by Madam Gutierrez who works here;

(2) He has completely integrated into the local society. All of his friends are in Hong Kong. The employer's son treats him like brother. He speaks, reads and writes fluent English. He also speaks some Mandarin and Cantonese. He was baptized at the Kowloon Filipina Baptist Church in July 2008;

(3) He feels like an “alien” in the Philippines. He only speaks very little Tagalog. He does not have any friends there. No one would become his caretaker in the Philippines;

(4) Although Master Gutierrez holds a Philippine passport, whenever he visits the Philippines, he is required to pay airport tax like a foreigner;

(5) His half-brothers Ceasar and Marc John, to whom he is particularly close, are currently working in Hong Kong as FDHs. Ceasar came to Hong Kong about 14 months ago while Marc has been here more than four and a half years already. Both Ceasar and Marc John are working in Discovery Bay. They go to church together on Sundays;

(6) In Master Gutierrez’s spare time, he goes swimming and plays tennis in the Residents Club. In 2006, He took a swimming course in Discovery Bay. He also participated in the tree-planting activities Madam Gutierrez referred to in her affidavit in support of his appeal. He also enjoys participating in various activities in Hong Kong such as football, rugby and enrolling in interest course such as "Basics of Flying";

(7) He is sometimes taught by Madam Gutierrez, Ceasar and Marc John and is also receiving free mathematics and piano lessons from a retired teacher and a friend of Madam Gutierrez. ”

52.It is clear from these submissions that the son did not and could not assert that he had independent means from the mother to satisfy the objective element in the permanence requirement. Nor is there any suggestion that the mother intended to leave the son in the care of somebody’s else (and that such person was willing to take up such responsibility and had the means to do so).

53.Given this court’s conclusion on the necessary ingredient in the permanence requirement in the mother’s case, none of the matters relied upon in respect of son’s case establishes that requisite concrete step had been taken by the son or by the mother on his behalf. On this ground alone, the son’s challenge to the decision of the Tribunal fails.

The gaps in the son’s continuous presence in Hong Kong[8]

54.Not being a Chinese citizen, and none of his parents satisfied the criteria in Article 24(2)(4), the son cannot acquire Hong Kong permanent resident status by birth in Hong Kong pursuant to Article 24(2)(1) and (2)(5). He therefore has to rely on Article 24(2)(4).

55.After his birth on 1 December 1996, the son was granted permission to remain in Hong Kong on visitor condition on 12 December 1996. He got a Philippine passport on 26 March 1997. He left Hong Kong for the Philippines on 30 August 1997.

56.Focusing on the seven years immediately prior to his application for verification on 20 December 2006 (viz. starting from 20 December 1999), there were three occasions when the son was away from Hong Kong. The details were set out at para.77 of the Decision. On each occasion, upon his return, he was given permission to enter and remain in Hong Kong on visitor condition.

57.At paras.78 to 80, the Tribunal considered the implication of such absence in the light of Section 11(10) of the Immigration Ordinance. That sub-section provides,

“Any permission given to a person to land or remain in Hong Kong shall, if in force on the day that person departs from Hong Kong, expire immediately after his departure.”

58.At para.79 of the Decision, the Tribunal analysed the effect of this provision in relation to the son’s departure and return to Hong Kong in 2004 as follows,

“… when the [son] left Hong Kong on 31 March 2004, his prior stay in Hong Kong could not be treated as a period continuous to the period when he stayed in Hong Kong on the strength of a new visitor visa ….”

59.This should be read together with the earlier reference by the Tribunal at para.34 of the Decision to the judgment of Appeal Committee in Sun Jie v Registration of Persons Tribunal FAMV 20 of 2006.

60.With the break in the continuity in 2004, the Tribunal held that the son’s continuous ordinary residence in Hong Kong immediately before his verification application could only have commenced from 31 March 2004. Thus he could not meet the seven year requirement.

61.Plainly, in so holding, the Tribunal accepted the argument at para.29 of the written submissions of the Commissioner. The relevant analysis are as follows,

“(1) Ordinary residence entails presence m a place a person can lawfully remain. If he cannot lawfully reside in a place by reason of his having no permission to stay, he cannot be treated as ordinarily resident there. Thus where a person who has been ordinarily resident in Hong Kong leaves and by his departure from Hong Kong the remaining period of his permission to stay expired by operation of s.11 (10) of the Ordinance, the period of absence from Hong Kong cannot be treated as ordinary residence: see Sun Jie v Registration of Persons Tribunal, FAMV 20/2006 (unrep., 28 September 2006) §4, CACV 320/2004 (unrep., 13 December 2005) §§8-11; applied in Commissioner of Registration v Registration of Persons Tribunal, HCAL 39/2005 (unrep., 25 January 2007) §§31-41.

(2) In the present case, the Son has been permitted to remain in Hong Kong as a visitor subject to time limitation. Section 11(10) of the Ordinance provides that:-

“Any permission given to a person to land or remain in Hong Kong shall, if in force on the day that person departs from Hong Kong, expire immediately after his departure.”

In other words, every time the Son departed from Hong Kong, his permission to remain expired immediately. Thereafter he had no right to remain in Hong Kong until he presented for arrival clearance and was granted afresh permission to remain on visitor condition upon fulfilment of relevant immigration requirements. The subsequent permission was not a continuation of the previous permission to remain (which had already expired), but was fresh permission based on the Son having satisfied the relevant immigration requirements at the time of arrival in Hong Kong. Thus his periods of absence could not amount to residence, still less ordinary residence, in Hong Kong.

(3) Section 2(6) of the Ordinance (175 Skel §52) has no application. It presupposes that a person is ordinarily resident in Hong Kong, such that his temporary physical absence may in some circumstances still be regarded as ordinary residence. But that very premise is absent here, for according to Sun Jie, the Son’s period of absence from Hong Kong (when he had no permission to remain here) cannot be regarded as ordinary residence.

(4) The Son’s periods of absence from Hong Kong cannot be regarded as de minimis: see Prem Singh §§75-76.”

62.Sun Jie v Registration of Persons Tribunal concerns an applicant who came from the Mainland and worked in Hong Kong for 6 odd years. Upon the end of his employment, his limit of stay also expired. He therefore left Hong Kong at the end of 1999. But he continued to keep a rented flat here. He returned to Hong Kong as a visitor in March 2000, stayed for 2 days and then went to the Republic of Nauru. He somehow got a Nauru passport and returned to Hong Kong on 1 April 2000. Upon arrival, he was allowed to enter and remain as a visitor until 2 May 2000. Before the expiry of that period, he got married with a Hong Kong resident and applied to change of his status from visitor to a dependent of his wife. Pending the processing of that application, he was granted extensions of stay. The application for change of status was refused. After that he applied for verification in February 2001. That application was rejected on the ground that his departure at the end of 1999 broke the continuity of his ordinary residence in Hong Kong.

63.In the Court of Appeal (CACV 320 of 2004, 22 December 2005), Rogers VP referred to five propositions put forward by counsel which His Lordship accepted as correct. For present purposes, it is only necessary to refer to the following propositions,

“(b) Where a person who is ordinarily resident in Hong Kong leaves Hong Kong temporarily he may be treated as still remaining ordinarily resident so long as such absence is during a valid limit of stay which has not expired.

(c) Where a person who has been ordinarily resident in Hong Kong leaves because his permission to stay ends the period of absence from Hong Kong cannot be treated as ordinary residence.

(d) The provisions of section 2(6) of the [Immigration Ordinance] must be read with the foregoing propositions in mind, thus the ‘circumstances of the person’ which the subsection makes relevant will include the question of whether the person was entitled to be in Hong Kong during that period of absence.

(e) The common law concept of ordinary residence is not a purely subjective matter. It is also necessary to see what has happened as a matter of objective fact during the period and this includes whether a person would be entitled to remain.”

64.At para.9, His Lordship had the following observations,

“Although I have no doubt that these propositions are correct, it seems to me that this case is governed by one very simple proposition namely that it is impossible for somebody to be ordinarily resident in a place when he cannot be resident there.”

65.Mr Sun sought leave to appeal and his application was rejected by the Appeal Committee of the Court of Final Appeal. In the Determination, Chan PJ said,

“3. The main ground of appeal is that the Court of Appeal had misinterpreted the term ‘ordinary residence’ in the Immigration Ordinance, Cap.115…in holding that absence from Hong Kong for a period during which the applicant did not have permission to stay in Hong Kong had broken the continuity of his ordinary residence for the purpose of acquiring permanent residence in Hong Kong. It is submitted that this interpretation prevents the applicant, a law abiding non-resident, from accumulating the requisite period of residence and leaves him at the mercy of the Immigration Officer.

4. We do not think this is reasonably arguable ground of appeal. The applicant was given permission to remain and hence to acquire ordinary residence in Hong Kong on the basis of his employment. When his employment was terminated, he no longer had any permission to remain and his ordinary residence also came to an end. In order to succeed, the applicant has to show that he falls within s.2(6) of the Ordinance. It is clear that he does not. His absence was not a merely temporary hiatus in a continuous period of ordinary residence. This is because when he returned, he was permitted to remain on a completely different basis which the Registration of Persons has found to be false. There was no continuity between his residence here as an employee and his presence as a visitor permitted to remain as a result of his false representations.”

66.The false representation was his false claims to the Immigration officers in 2000 that he had never entered Hong Kong before April 2000, see para.4 of the judgment of the Court of Appeal.

67.In Commissioner of Registration v Registration of Persons Tribunal HCAL 39 of 2005, 25 Jan 2007, Reyes J applied Sun Jie in the context of a person who tried to advance a case of continuous ordinary residence based on his different periods of stay in Hong Kong under visitor visa notwithstanding breaks in between. His Lordship considered the implication of reading Sun Jie with Section 11(10) of the Immigration Ordinance. At para.34, Reyes J said,

“It follows that … 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.”

68.The son is in the same position. During the three occasions when he left Hong Kong, his previous permission to stay expired. Thus, for those periods when he was outside Hong Kong, he did not have any lawful right to remain in Hong Kong. When he came back on each occasion, the Director would give him a fresh permission to enter and to remain for a limited period, which were extended from time to time till his next departure. But the Director was not under any legal duty to give him such permission. Thus, there were breaks in the continuity of his presence in Hong Kong. 

69.Ms Li sought to meet this analysis by reference to the following,

(a)   The decision of the Court of Final Appeal in Gurung Bahadur v Director of Immigration (2002) HKCFAR 480;

(b)   Section 2(6) of the Immigration Ordinance;

(c)   Two dicta of Lord Scarman in Ex p Shah[9].

70.Gurung Bahadur v Director of Immigration (2002) HKCFAR 480 concerned a Nepali who had changed his status from a visitor to a dependant of his wife, a Hong Kong permanent resident. He was given a limit of stay and at the time of the incident, the limit had not yet expired. He left Hong Kong in October 1997 and returned on 4 November 1997. The Director refused to permit him to enter and made a removal order against him. He applied for judicial review on the basis of his right as a non-permanent resident under Article 31 of the Basic Law: the freedom to travel and to enter or leave Hong Kong.

71.His challenge succeeded. However, it is important to understand that he was able to assert the right under Article 31 to prevail over the effect of Section 11(10) of the Immigration Ordinance because of his status as dependant with an unexpired limit of stay. This is obvious from the following paragraphs in the judgment of Li CJ in the Court of Final Appeal,

“40. Section 11(10) itself is not unconstitutional. It is its application to a non-permanent resident, whose permitted limit of stay has not expired, which is inconsistent with his rights under art.31 of the Basic Law. Section 11(10) continues validly to apply to persons who are not non-permanent residents with an unexpired limit of stay, for example, to visitors.

41. As with any person, including a permanent resident who enjoys the right of abode, a non-permanent resident with an unexpired permitted limit of stay may be examined by immigration officials under s.4 of the Ordinance. But he does not require permission to land under s.7 because the previous permission with the unexpired limit of stay remains effective. As pointed out by Mr Pannick, such a non-permanent resident in effect would enjoy an important element of the right of abode. See ss.2A(1)(a) and 7(1). But this is only one of the elements of the right of abode and is enjoyed by such a non-permanent resident during and only during the unexpired permitted limit of stay. There is nothing surprising in this result. It follows from his rights to travel and to enter guaranteed by art.31. These rights in the new order were created by the Basic Law.

42. It must be emphasized that this judgment only concerns a non-permanent resident in a position like the respondent, whose permitted limit of stay has not expired. A person whose limit of stay has expired would cease to be a non-permanent resident and would be in a very different position. …”

72.Thus, the case does not assist a person whose limit of stay expired upon his departure from Hong Kong. That would be the position of a visitor. As observed by the Chief Justice, a visitor is not a non-permanent resident and in respect of him Section 11(10) applies in full force. The situation of a visitor is governed by Sun Jie.

73.Though multiple journey visas were issued to the son, his status remains that of a visitor. On each occasion when he returned to Hong Kong a fresh permission to land and remain in Hong Kong as visitor for a limited period was granted by the Director. There was no application for the change of his status from that of a visitor to a dependant. Therefore, Section 11(10) applies to him and he is caught by Sun Jie.

74.Ms Li’s reliance on Section 2(6) of the Immigration Ordinance and Ex p Shah  cannot take the argument further because they had been duly considered by the Court of Appeal in Sun Jie. In that case, counsel for Mr Sun relied heavily on Ex p Shah (as shown in the judgment at first instance[10] and para.7 of the judgment of Rogers VP). At para.10 of the judgment of the Court of Appeal, Rogers VP explained why Ex p Shah could not help Mr Sun,

“As explained in the Shah case ordinary residence has to be understood in its natural meaning. As is acknowledged in the reported cases, a person who is ordinarily resident in a particular place is, of course, at liberty to travel and move from place to place. Such a person will remain ordinarily resident in his place of ordinary residence even when he is away. … Despite all that, ordinary residence must entail presence in that place and if a person cannot lawfully be in that place he cannot reside there, still less can he be ordinarily resident there.”

And at para.11, after referring to the facts of the case,

“… A person cannot be in any better position to claim to be ordinarily resident because he is not physically in a place where, if he were present, his residence would not be treated as being ordinary residence.”

75.Section 2(6) was dealt with at proposition (d) set out at para.8 of the judgment of the Court of Appeal. In other words, during a period of absence where a person has no right to be in Hong Kong (and as such his return to Hong Kong would have to be subject to a fresh permission from the Director to enter and remain), for the purpose of that section the person cannot be regarded as temporarily absent. This was also the reason why the Appeal Committee held that there was a break in the continuity of residence in the case of Mr Sun, see para.4 of the Determination.

76.I am bound by the decision of the Court of Appeal and the Determination of the Appeal Committee in Sun Jie. And I do not think Sun Jie is in any way inconsistent with Ex p Shah. In Ex p Shah the House of Lords dealt with students holding student visas, permitting them to stay in the UK for the course of his study. Thus, the students were in a similar position as Mr Gurung Bahadur. Lord Scarman did not address the issue of gaps of absence during which a person has no permission to remain. Had His Lordship been asked to consider this issue, what he said at p.348D by way of rider indicates that he would probably give the same answer as the Court of Appeal and the Appeal Committee in Sun Jie. The rider is,

“…unless it be that of one who has no right to be here, in which event presence in the UK is unlawful …”

77.Therefore, the Tribunal is correct in holding that the son did not have seven year continuous ordinary residence in Hong Kong immediately before his application on 20 December 2006.

78.In the circumstances, the son’s challenge must also fail on this alternative ground.

Results

79.Both applications for judicial review are dismissed with costs, such costs are to be taxed if not agreed.

Ms Gladys Li, SC, Mr Kwok Sui Hay and Ms Jocelyn S.L. Leung, instructed by Messrs Barnes & Daly (D.L.A.), for the Applicants

Mr Lord Pannick, QC, Mr Anderson Chow, SC and Ms Eva Sit, instructed by Department of Justice, for the 1^st Respondent

Annex I

Appellant: Ms. GUTIERREZ Josephine B

Agreed Facts

The Appellant's Personal and Family Background

1. Ms. GUTTIERREZ Josephine B also known as GUTIERREZ Josephine Balando (“Ms GUTIERREZ”) was born in the Philippines on 23 September 1963.

2. Ms GUTIERREZ is a Philippine national.

3. She married Mr. GUTIERREZ Marcial B. (“Mr. GUTIERREZ”) in the Philippines in 1977 but they have since separated.

4. Ms GUTIERREZ has four children born of Mr. GUTIERREZ, all of whom reside in the Philippines, namely:-

(i) Michael Ceasar B. GUTIERREZ, the first child, was born in the Philippines on 15 January 1980, aged 31;

(ii) Marc Jonh B. GUTIERREZ, the second child, was born in the Philippines on 19 April 1983, aged 26;

(iii) Marvin B. GUTIERREZ, the third child, was born in the Philippines on 9 April 1986, aged 23; and

(iv) Marcial B. GUTIERREZ JR., the fourth child, was born in the Philippines on 27 August 1987, aged 22.

5. Ms GUTIERREZ has a fifth child, Joseph James GUTIERREZ (“Joseph”), who was born out of the wedlock in Hong Kong on 1 December 1996. Joseph is now 13 years old and resides in Hong Kong with Ms GUTIERREZ.

The Appellant’s Employment History in Hong Kong

First Employment

6. On 22 March 1991, Ms GUTIERREZ signed an employment contract to work as a foreign domestic helper (“FDH”) in Hong Kong for Ms SIU Mun Yee (“Ms SIU”).

7. On 18 April 1991, Hong Kong Immigration Department (“ImmD”) received Ms GUTIERREZ’s application for a Hong Kong entry visa to work as an FDH for Ms SIU.

8. On 6 June 1991, Ms GUTIERREZ’s FDH visa application was approved and she was issued with a visa for employment with Ms SIU for twelve months.

9. In about July 1991, Ms GUTIERREZ arrived in Hong Kong to take up her employment with Ms SIU. Her permission to remain to work for Ms SIU as an FDH was subsequently extended upon application until 23 July 1993 or two weeks after termination of contract, whichever was earlier.

10. In August 1991, Ms GUTIERREZ registered for and was issued a Hong Kong Identity Card (“HKIC”) no. XXXXXXX(X). A replacement HKIC no. XXXXXXX(X) was issued to her on 28 October 1991 upon reporting loss.

11. Ms GUTIERREZ’s employment contract with Ms SIU was terminated on 6 September 1992.

12. On 15 September 1992, Ms GUTIERREZ applied to ImmD for extension of stay to enable her to settle her labour case against Ms SIU.

13. On 1 October 1992, Ms GUTIERREZ’s condition as an FDH in Hong Kong was varied. She was granted permission to remain on visitor condition until 17 November 1992 to facilitate her attending a conciliation meeting arranged by the Labour Department.

Second Employment

14. On 2 November 1992, Ms GUTIERREZ applied to ImmD for change of employer (“C/E”)to work for Mr. John HORWOOD (“Mr. HORWOOD”).

15. On 2 November 1992, Ms GUTlERREZ was granted extension of stay on visitor condition until 8 December 1992.

16. On 11 November 1992, Ms GUTIERREZ signed an employment contract with Mr. HORWOOD to work as an FDH in Hong Kong.

17. On 29 January 1993, Ms GUTIERREZ was granted extension of stay on visitor condition until 19 February 1993 to facilitate the finalization of the formalities of the C/E application.

18. On 16 February 1993, Ms GUTIERREZ’s C/E application was approved, and she was granted permission to take up her employment as an FDH in Hong Kong for Mr. HORWOOD until 16 February 1994 or two weeks after termination of contract, whichever was earlier.

19. Ms GUTIERREZ’s employment with Mr. HORWOOD was terminated on 12 October 1993.

20. On 12 October 1993, Ms GUTIERREZ’s condition of stay in Hong Kong was varied. She was granted permission to remain on visitor condition until 19 October 1993 to facilitate her departure arrangements.

Third Employment

21. On 18 October 1993, Ms GUTIERREZ applied to ImmD for C/E to work for Mr. Christopher ROCK (“Mr. ROCK”). She was granted extension of stay on visitor condition until 18 December 1993.

22. On 6 December 1993, Ms GUTIERREZ signed an employment contract with Mr. ROCK to work as an FDH in Hong Kong.

23. On 11 December 1993, Ms GUTIERREZ’s C/E application was approved, she was granted permission to take up employment as an FDH in Hong Kong for Mr. ROCK until 11 December 1994 or two weeks after termination of contract, whichever was earlier.

24. On 16 December 1994, Ms GUTIERREZ was granted extension of stay to continue her employment as an FDH in Hong Kong with Mr. ROCK until 11 December 1995 or two weeks after the termination of contract, whichever was earlier.

25. On 31 January 1995, Ms GUTIERREZ’s employment with Mr. ROCK was terminated.

Fourth Employment

26. On 24 February 1995, Ms GUTIERREZ’s condition of stay in Hong Kong was varied. She was granted permission to remain on visitor condition until 7 March 1995 to facilitate settlement of her labour case against Mr. ROCK.

27. After her labour case was settled on 28 February 1995, Ms GUTIERREZ applied for C/E to work for Mr. YUE James Kuo Wei (“Mr. YUE”). On 7 March 1995, Ms GUTIERREZ was granted an extension of stay on visitor condition until 7 April 1995 to process the C/E application.

28. On 4 April 1995, Ms GUTIERREZ withdrew the C/E application to work for Mr. YUE and applied to work for Mr. LUI Shui Hing Peter (“Mr. LUI”) instead. She was granted extension of stay on the same day on visitor condition until 18 April 1995 to process the C/E application.

29. On 8 April 1995, Ms GUTIERREZ signed an employment contract with Mr. LUI to work as an FDH in Hong Kong.

30. On 19 April 1995, Ms GUTIERREZ was granted permission to work as an FDH in Hong Kong for Mr. LUI until 12 March 1996 or two weeks after termination of contract, whichever was earlier.

31. On 5 March 1996, Ms GUTIERREZ was granted an extension of stay to continue her employment as an FDH in Hong Kong for Mr. LUI until 19 April 1997 or two weeks after termination of contract, whichever was earlier.

32. On 23 April 1996, Ms GUTIERREZ’s employment with Mr. LUI was terminated.

Permission to Remain in Hong Kong on Visitor Condition

33. On 6 May 1996, Ms GUTIERREZ applied to ImmD for an extension of stay in order to look for a new employer in Hong Kong.

34. On 22 May 1996, Ms GUTIERREZ’s application was refused and she was reminded that her permission to remain in Hong Kong only lasted up to 7 May 1996, but her voluntary departure on or before 29 May 1996 would be facilitated.

35. On 31 May 1996, Ms GUTIERREZ applied to ImmD for an extension of stay in order to file a labour claim against Mr. LUI.

36. On 3 June 1996, Ms GUTIERREZ was granted an extension of stay on visitor condition until 2 July 1996 which upon applications was further extended until 12 August 1996 to facilitate settlement of her labour case.

37. On 12 August 1996, Ms GUTIERREZ applied for extension of stay for the reasons that she had her passport taken from her as she was indebted to finance companies and that she wanted to look for a new employer. The application was refused and she was reminded that her permission to remain in Hong Kong only lasted up to 12 August 1996.

38. On 19 August 1996, Ms GUTIERREZ applied for extension of stay in order to process her C/E application to work for Mr. FUNG Chi Sing Tonly (“Mr. Fung”), and she was called up to attend ImmD for an interview with required documents on 5 September 1996.

39. On 5 September 1996, Ms GUTIERREZ was unable to produce the specified documents from Mr. FUNG as required and her application was therefore cancelled. Ms GUTIERREZ was granted extension of stay on visitor condition until 12 September 1996 and was required to leave Hong Kong on or before that day.

40. Since September 1996, Ms GUTIERREZ submitted applications for extension of stay for various reasons including application for C/Ein Hong Kong, objection lodged to the Chief Secretary under section 53 of the Ordinance against ImmD’s refusal to her C/E application, arrangement of someone to take her son (Joseph) back to the Philippines, and to pursue her labour claim against Mr. LUI; she was granted permissions to remain in Hong Kong on visitor condition until the latest 28 June 1997.

Fifth Employment

41. On 3 June 1997, Ms GUTIERREZ was informed that ImmD was prepared to reverse its previous decision and approve her application for C/E. On 19 June 1997, Ms GUTIERREZ was granted permission to remain in Hong Kong to work as an FDH for Mr. Howard Lee SELLARS Jr. (“Mr. SELLARS”) until 19 June 1998 or two weeks after the termination of contract, whichever was earlier.

42. By subsequent contract renewals and extensions of stay, Ms GUTIERREZ was granted permission to work as an FDH for Mr. SELLARS until 19 June 2003 or two weeks after termination of contract, whichever was earlier.

43. Ms GUTIERREZ was released by Mr. SELLARS on 10 June 2003.

Sixth Employment

44. On 3 June 2003, Ms GUTIERREZ signed an employment contract with Mr. Peter Michael CHADWICK (“Mr. CHADWICK”) to work as an FDH in Hong Kong.

45. On 4 July 2003, Ms GUTIERREZ was granted permission to remain in Hong Kong as an FDH to work for Mr. CHADWICK until 4 July 2005 or two weeks after termination of contract, whichever was earlier.

46. By replacement of HKIC on 18 March 2004, Ms GUTIERREZ was issued with a SMART HKIC no. XXXXXXX(X).

47. On 4 July 2005, Ms GUTIERREZ was released from contract by Mr. CHADWICK.

Seventh Employment

48. On 28 June 2005, Ms GUTIERREZ signed an employment contract with Mr. Jason WILLINGHAM (“Mr. WILLINGHAM”) to work as an FDH in Hong Kong.

49. On 28 July 2005, Ms GUTIERREZ was granted permission to remain in Hong Kong as an FDH to work for Mr. WILLINGHAM until 28 July 2006 or two weeks after termination of contract, whichever was earlier.

50. On 1 August 2005, Ms GUTIERREZ departed Hong Kong. On 12 August 2005, Ms GUTIERREZ entered Hong Kong on the strength of a re-entry visa and was permitted to remain in Hong Kong as an FDH to work for Mr. WILLINGHAM until 28 July 2007 or two weeks after termination of contract, whichever was earlier.

51. Upon subsequent contract renewal and extension of stay, Ms GUTIERREZ was granted permission to remain in Hong Kong as an FDH to work for Mr. WILLINGHAM until 28 July 2008 or two weeks after termination of contract, whichever was earlier.

52. Ms GUTIERREZ’s employment with Mr. WILLINGHAM was terminated on 26 April 2008.

Eighth Employment

53. On 25 April 2008, Ms GUTIERREZ signed an employment contract with Mr. Randal Arthur LEONARD (“Mr. LEONARD”) to work as an FDH in Hong Kong.

54. On 26 June 2008, Ms GUTIERREZ was granted permission to remain in Hong Kong as an FDH to work for Mr. LEONARD until 26 June 2009 or two weeks after termination of contract, whichever was earlier.

The Appellant's Reported Connection in Hong Kong and the Philippines

55. During Ms GUTIERREZ’s employment as an FDH in Hong Kong, she has been staying in her employers’ respective residence.

56. Ms GUTIERREZ’s widowed mother, aged 70, resides in the Philippines. 

57. Ms GUTIERREZ’s fifth child, Joseph, who was born in Hong Kong on 1 December 1996, was all along given permission to remain on visitor condition during his presence in Hong Kong, and has been staying with Ms GUTIERREZ at her employers' respective residences.

Application for Verification of Eligibility for Permanent Identity Card (“VEPIC”)

58. On 21 December 2006, ImmD received the VEPIC application from Ms GUTIERREZ. She laid claim to the permanent resident status of the Hong Kong Special Administrative Region (“HKSAR”) under paragraph 2(f) of schedule 1 to the Immigration Ordinance, Chapter 115 (“the Schedule” and “the Ordinance” respectively).

59. By a letter of 4 June 2007, ImmD informed Ms GUTIERREZ that her VEPIC application was refused on the ground that-

(i) paragraph 2(f) of the Schedule was not applicable to her as she was born in the Philippines and is a Philippine citizen at birth;

(ii) she was unable to fulfill the residence requirement for permanent resident status of the HKSAR under paragraph 2(d) of the Schedule; and

(iii) she was not eligible for permanent resident status of the HKSAR under other provisions of the Schedule.

Application for Hong Kong permanent identity card (“HKPIC”)

60. On 24 September 2008, Ms GUTIERREZ applied for registration of a HKPIC. On the same day, the HKPIC application was refused because there was insufficient evidence to show that Ms GUTIERREZ had the right of abode in Hong Kong.

Appeal to the Registration of Persons (“ROP”) Tribunal

61.    On 3 October 2008, The ROP Tribunal received from Ms GUTIERREZ’s Solicitors an appeal lodged by Ms GUTIERREZ against the decision of the Commissioner not to issue a HKPIC to her on 24 September 2008.

Dated the 9^th day of April 2010.

Annex II

Appellant: Master GUTIERREZ Joseph James

Agreed Facts

The Appellant’s Personal and Family Background

1. Master GUTIERREZ Joseph James (“Master GUTIERREZ”) was born in Hong Kong on 1 December 1996.

2. Master GUTIERREZ is a Philippine national.

3. His mother, Ms GUTIERREZ Josephine Balando (“Ms GUTIERREZ”), is a Philippine national. She has been working as a foreign domestic helper in Hong Kong since 23 July 1991.

4. When Master GUTIERREZ was born on 1 December 1996, Ms GUTIERREZ was remaining in Hong Kong on visitor status.

5. Master GUTIERREZ’s father is said to be a U.S. citizen. Ms GUTIERREZ was not married to him and she had no contact with him.

Remaining in Hong Kong on Visitor Condition

6. On 12 December 1996, Master GUTIERREZ was granted permission to remain on visitor condition until 16 December 1996.

7. With subsequent extensions of stay granted from December 1996 to June 1997, Master GUTIERREZ’s permission to stay in Hong Kong on visitor status was extended until 30 August 1997.

8. Master GUTIERREZ was issued with a Philippine passport on 26 March 1997.

9. On 30 August 1997, Master GUTIERREZ left Hong Kong for the Philippines.

10. On 10 January 1998, Master GUTIERREZ arrived in Hong Kong and was permitted to remain in Hong Kong on visitor condition until 13 February 1998.

11. With subsequent extensions of stay granted in February 1998, Master GUTIERREZ’s permission to stay in Hong Kong on visitor condition was extended until 13 March 1998.

12. On 3 April 1998, Master GUTIERREZ was granted permission to stay in Hong Kong on visitor condition until 19 June 1998 which was coterminous with Ms GUTIERREZ’s stay as FDH in Hong Kong.

13. With an extension of stay granted on 6 July 1998, Master GUTIERREZ’s permission to stay in Hong Kong on visitor condition was extended until 19 June 1999.

14. Apart from several absences from Hong Kong without permission to stay, Master GUTIERREZ was granted permission to stay in Hong Kong on visitor status until 11 May 2007 upon subsequent applications for extension of stay or arrivals in Hong Kong.

The Appellant’s Application for Verification of Eligibility for Permanent Identity Card (“VEPIC”)

15. On 20 December 2006, ImmD received the VEPIC application from Master GUTIERREZ. Master GUTIERREZ laid claim to the permanent resident status of the Hong Kong Special Administrative Region (“HKSAR”) under paragraph 2(f) of Schedule 1 to the Immigration Ordinance, Chapter 115 (“the Schedule”).

16. By a letter of 25 September 2008, ImmD informed the Solicitors that the VEPIC application of Master GUTIERREZ was refused.

The Appellant’s Application for Hong Kong permanent identity card (“HKPIC”)

17. On 16 October 2008, Master GUTIERREZ applied for registration of a juvenile HKPIC under the guardianship of Ms GUTIERREZ. On the same day, the HKPIC application was refused because there was insufficient evidence to show that Master GUTIERREZ had the right of abode in Hong Kong.

The Appellant’s Appeal to the Registration of Persons (“ROP”) Tribunal

18. On 17 October 2008, the ROP Tribunal received from the Solicitors an appeal lodged by Ms GUTIERREZ against the decision of the Commissioner not to issue a HKPIC to Master GUTIERREZ.

Dated the 9^th day of April 2010

Please refer to CACV22/2012 for the relevant appeal(s) to the Court of Appeal.