Lei Chaohui v. Registration of Persons Tribunal and Others

HCAL 97/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 97 OF 2011

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J U D G M E N T

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1.This is the applicant’s judicial review against the decision (“the Commissioner’s Decision”) of the Commissioner of Registration (“the Commissioner”) to refuse his application for a Hong Kong Permanent Identity Card (“HKPIC”), and the Registration of Persons Tribunal (“the Tribunal”)’s decision (“the Tribunal’s Decision”) to dismiss his appeal against the Commissioner’s Decision.

2.The Tribunal, as usual, takes a neutral stance, while the Commissioner and the Director of Immigration (“the Director”) as the interested party oppose the application.  They are represented by Ms Sara Tong.

THE FACTS

3.The relevant facts can be briefly stated as follows.

4.The applicant’s father is one Mr Lui. 

5.In June 1986, Mr Lui entered Hong Kong to take up residence, and he first registered for and was issued with a Hong Kong identity card in July 1986.

6.In September 1993, Mr Lui was granted unconditional stay in Hong Kong, and in September 1996, he was naturalised as a British Dependent Territory citizen.  He was then issued with a certificate which stated his place and country of birth as: Hong Kong (no proof).

7.The applicant was born in the Mainland.  In March 1999, he came to Hong Kong on the strength of a Two-Way Permit.  He overstayed and on 25 May 1999, he surrendered himself to the Immigration Department (“the Department”) and claimed to have right of abode in Hong Kong.

8.Thereafter, the applicant had made a number of Verification of Eligibility for Permanent Identity Card (“VEPIC”) applications, which for one reason or another, had not been substantively dealt with.

9.Then, after his failure in appealing against the issue of the removal order and an application for extension of stay, the applicant was returned to the Mainland in September 2002.

10.In June 2010, the applicant arrived and entered Hong Kong on the strength of a One-Way Permit and was permitted to remain on time limitation for 7 years.  He was issued a Hong Kong identity card.

11.In September 2010, he again made a formal VEPIC application.

12.The said VEPIC application was refused on 19 November 2010. 

13.On 10 December 2010, the applicant then applied for a HKPIC.

14.By way of the Commissioner’s Decision, this application was refused.

15.The applicant appealed to the Tribunal against the Commissioner’s Decision.  A hearing of the appeal was held before the Tribunal on 19 August 2011. 

16.By way of the Tribunal’s Decision, the appeal was dismissed on 25 October 2011.

17.Application for leave to judicial review the Commissioner’s and the Tribunal’s Decision was made November 2011 by the applicant in person, and leave was granted by this court on 21 November 2011.

18.Later, legal aid was granted to the applicant, and the Form 86A was eventually amended in January 2013.

THIS JUDICIAL REVIEW

The applicant’s grounds of judicial review

19.The applicant’s case that he is a permanent resident of Hong Kong is premised on categories (a) and (b) of paragraph 2 of Schedule 1 (“the Schedule”) of the Immigration Ordinance (Cap 115).  His case is as follows.

20.Paragraph 2 of the Schedule provides that persons falling within the six categories listed thereof would be a permanent resident of Hong Kong. 

21.Under category (a), a person is a permanent resident of Hong Kong if he is “a Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region”. The applicant says Mr Lui (ie, the applicant’s father) belongs to a person under category (a) as Mr Lui was born in Hong Kong.

22.Category (c) says a person is a permanent resident of Hong Kong if he is a “person of Chinese nationality born outside Hong Kong before or after the establishment of [the HKSAR] to a parent who, at the time of birth of that person, was a Citizen falling within category (a) or…” The applicant says he satisfies category (c) because (i) he is a Chinese national born outside Hong Kong, and (ii) he was born to Mr Lui who is a person under category (a).

23.There are no disputes that Mr Lui and the applicant are both Chinese nationals and that the applicant was born outside Hong Kong.  The crucial question in the applicant’s HKPIC application was thus whether Mr Lui was born in Hong Kong.

24.Effectively, both the Commissioner and the Tribunal dismissed the applicant’s HKPIC application on the basis that they were not satisfied on the materials presented before them that Mr Lui was born in Hong Kong and thus fell within paragraph 2(a) of the Schedule.  As such, the applicant also cannot show that he fell under paragraph 2(c) of the Schedule.

25.In this judicial review, Mr Hon for the applicant advances his case on the bases that can be summarised as follows:

(1) The Commissioner and the Tribunal in arriving in their Decisions respectively failed to take into account a relevant factor, which is the “official record” of the Department which stated that the place of the birth of Mr Lui is Hong Kong, and

(2) The Commissioner and the Tribunal’s Decisions are irrational in the public law sense as they contradict the said “official record” of the Department which stated that Mr Lui’s place of birth is Hong Kong.

26.The “official record” referred to by Mr Hon is the Certificate of Registered Particulars of Mr Lui dated 3 September 2009 (“the Certificate”) issued by the Department which stated at item 3(iv) thereof that the place of birth is “Hong Kong”.

27.As Mr Hon has pointed out, the ultimate issue in this judicial review application is whether it is unlawful for the Commissioner and the Tribunal to have arrived in their respective Decision in light of the information contained in the Certificate.

28.In this respect, counsel accepts that the information contained in paragraph 3 of the Certificate was in fact provided by Mr Lui himself.  But he emphasises that in item 3(iii) thereof, where the date of birth was stated, it was marked “unverified”, while in contrast, the place of birth as stated in item 3(iv) was not so qualified.

29.Counsel therefore says the Department’s own document and information (i.e., the Certificate) shows that Mr Lui was born in Hong Kong.  Thus, in coming to the conclusion that they were not satisfied that Mr Lui was born in Hong Kong, the Commissioner and the Tribunal had either failed to take this relevant material into consideration, or if they had so taken this into account, their decision is clearly irrational.

30.With respect, I am unable to accept Mr Hon’s submissions.  My reasons are as follows.

31.As rightly accepted by Mr Hon, the applicant’s grounds of judicial review premised fundamentally on the contention that the information contained in the Certificate regarding Mr Lui’s place of birth has effectively been accepted by the Department as accurate given that it was a document issued by the Department and the reference to the place of birth is unqualified.  

32.It is however clear to me that the mere fact that information is contained in the Certificate and without more cannot be regarded as the Department’s acceptance of Mr Lui’s stated place of birth to be correct.  This is so because:

(1) It is common ground that although Mr Lui has always claimed that his place of birth is Hong Kong, he is unable to provide any birth certificate or relevant travel documents to prove the same in his various and numerous applications made to the Department for identity documents.  The Department also has been unable to find his birth record from the register of births and deaths.

(2) At the same time, the Certificate clearly stated that it was issued pursuant to Mr Lui’s request to certify that, when Mr Lui applied to obtain his Hong Kong identity card in 1986, he himself provided to the Department the information (as set out in paragraph thereof), which included, among others, that the place of birth was Hong Kong.   

(3) In the circumstances, taking the above two observations together, the Certificate does nothing more than to certify that the said information was provided by Mr Lui himself when he applied for the identity card in 1983.

(4) At the same time, the Director’s evidence filed in this application (which is not challenged)[1] shows that such information provided in the applications for Hong Kong identity card would not be and has not been verified by the Department.   Further, the Director’s evidence also shows that the Hong Kong identity card issued to Mr Lui since 1986 (which also has since been replaced a few times over the years), and the British Dependant Territory Passport and the Hong Kong Document of Identity that have been issued to him, all stated effectively that his claimed birth place of Hong Kong has not been verified.

(5) As such, there is nothing before me to support the contention that the place of birth information provided in the Certificate must be taken to have been verified and accepted accurate by the Director or the Department.

(6) In my view, in light of the clear words stated in the Certificate (as mentioned above), the fact that some of the items of information, such as the “place of birth”, are not remarked as “unverified” and without more adds nothing more to show that all such information stated in the Certificate had been verified and accepted as accurate by the Department.

(7) In this respect, it is pertinent to note that a similar argument as the one now advanced by the applicant based on the place of birth information stated in the Certificate was made in Chen Chengzhi v Director of Immigration (unreported, HCAL 40/2005, 13 March 2006).  In that case, the Director refused the applicant’s application for a certificate of entitlement to the Right of Abode in Hong Kong, where the applicant claimed to be a permanent resident of Hong Kong as she was born to the mother (a Chinese national) who was allegedly born in Hong Kong.  The Director (and the Tribunal in that case) dismissed the application as they were not satisfied that the mother was born in Hong Kong.  One of the grounds of the judicial review made against those decisions was that it was irrational for the decision maker to come to that conclusion when the Certificate of the mother stated (without being remarked as “unverified”) that her place of birth was Hong Kong.  Chu J (as she then was) came to the same conclusion that the place of birth stated in the Certificate (even though not remarked as “unverified”) cannot be taken as accepted by the Director to be accurate and rejected this ground of judicial review[2].

33.In the premises, I reject the applicant’s fundamental contention that the place of birth information contained in the Certificate must be regarded as having been accepted as accurate by the Department.  The Certificate therefore cannot be treated as (as contended by the applicant) the Department’s “official record” of Mr Lui’s place of birth.

34.To be fair to Mr Hon, when he appears in court today, he accepts that he cannot push so far as to say that the Certificate’s information has been in fact verified and accepted by the Department as accurate. All he is saying is that the Certificate is a relevant material that the Commissioner and the Tribunal should have taken into account when deciding whether Mr Lui was born in Hong Kong.

35.With this in mind, I now turn to examine more closely the grounds of judicial review as advanced.

36.In relation to this, a few principles must be stated first.

37.First, it must be emphasised that, whether or not Mr Lui was born in Hong Kong is a matter of fact based on the evidence, and the burden is on the applicant in applying for HKPIC to prove it.  See: Regulation 21(1)(a) of the Registration of Persons Regulation (Cap 177A), s 64 of the Immigration Ordinance, and Santosh Thewe v Director of Immigration [2000] 1 HKLRD 717 at 723E per Stock J (as he then was).

38.Second, it is trite that (a) questions of fact are for the decision-maker to whom the legislature has entrusted the fact finding function to make (see Santosh, supra, at 722I) and, (b) the court in judicial review proceedings will not normally interfere with the decision-maker’s assessment of the evidence or finding of facts unless it can be shown that the exercise has been tainted with procedural unfairness, or is unlawful (such as where the decision-maker has failed to take into account relevant matters or has taken into account irrelevant matter, or the finding is based on no evidence at all or is Wednesbury unreasonable (or irrational))[3].

39.The applicant now says, in coming to their decisions, the Commissioner and the Tribunal had failed to take into account the Certificate, which is a relevant material as to whether Mr Lui was born in Hong Kong.

40.I accept for the purpose of argument that the Certificate is a piece of evidence relevant to the question of whether Mr Lui was born in Hong Kong[4]. However, this evidence was in fact not relied on by the applicant in his HKPIC application with the Commissioner or at the hearing before the Tribunal.  Moreover, after seeing all the evidence relied on by the applicant (which did not include the Certificate) to prove that Mr Lui was born in Hong Kong, the Tribunal had asked the applicant as to whether he wanted more time to provide more materials to the Tribunal to prove Mr Lui’s birth place, which was the only crucial matter to be decided in the appeal.  The Tribunal further noted that the Department had previously also asked the applicant to provide more evidence and materials without any success.  The applicant however said it was unnecessary and did not ask for any time (as offered by the Tribunal) to submit any further evidence (such as the Certificate)[5] to prove his case. 

41.In the premises, I cannot see how it can be contended seriously by the applicant in this judicial review that the Tribunal and the Commission are guilty of failing to take into account this relevant piece of evidence, when in fact this was not relied on by the applicant himself. This in particularly must be looked at in the context that it is for the applicant to provide evidence to prove Mr Lui’s place of birth.

42.In any event, it is also trite that the court in judicial review would not generally entertain any arguments not raised before the decision maker or the relevant tribunal, in particular one which is fact sensitive.  See: Re Ng Kin Wo Johnny (unreported, HCAL 114, 115/2010, Lam J) at paragraphs 20-23; Asher v Secretary of State for the Environment [1974] Ch 208, 222D-F, 224H-225B and 228B-E.

43.I do not find any special circumstances in this case to justify a different approach. 

44.I would therefore reject this ground of judicial review on this basis alone. 

45.But there is also another point.

46.In my view, given that the nature of the Certificate is only to confirm that Mr Lui claimed to be born in Hong Kong when he applied for the identity card in 1986 as I concluded above, I am satisfied that even if the Tribunal had taken into account of this material, it would have come to the same conclusion.  This is so because in coming to its conclusion, the Tribunal had clearly looked at and considered Mr Lui’s case that all along he had consistently claimed to be born in Hong Kong in all his applications for various identity documents with the Department (and all this evidence has been extensively set out in the Reasons of the Commissioner’s Decision).  The Tribunal looked at all the documents relied on by Mr Lui (and the applicant) and their case that Mr Lui has consistently claimed to be born in Hong Kong as summarised at paragraphs 49 and 51 of the Tribunal’s Reasons.  After weighing the evidence, the Tribunal rejected that as sufficient proof of Mr Lui’s place of birth to be Hong Kong.

47.In the premises, the Certificate adds nothing more to Mr Lui’s case that he has consistently claimed to be born in Hong Kong.  As stated therein, the Certificate’s reference to the place of birth information is only premised on Mr Lui’s claim made when he applied for the identity card in 1986.  But the fact that Mr Lui claimed to be born in Hong Kong when he submitted his application for identity card in 1986 was already relied on by the applicant before the Commissioner and the Tribunal.  They had taken this part of the evidence into account.  As such, I cannot see how the Certificate would have added any further material weight to the evidence.  I have therefore come to the clear view that even if the Certificate had been submitted to and considered by the Commissioner and the Tribunal, the result would have been the same.  I therefore would have refused to exercise my discretion to grant relief in this judicial review to quash the Decisions and refer the matter back to the Tribunal or Commissioner for fresh determination, as it would serve no useful purpose.

48.For this other reason, I would also reject the applicant’s first ground of judicial review.

49.As to the ground of irrationality, for the same reasons given above, it is also clear to me that the Decisions cannot be said to be irrational even viewed in light of the Certificate.  In my view, after looking at the evidence relied on by the applicant (and Mr Lui) before the Commissioner and the Tribunal, and the fact that Mr Lui could not produce any birth certificate records to show that he was born in Hong Kong, the Decisions are one which are well and reasonably open to the Commissioner and the Tribunal to come to.

50.I therefore also reject this ground.

51.For all the above reasons, I refuse this judicial review application.

52.[After hearing submissions on costs] I further order that costs of this application be to the Commissioner and the Director, but there should only be one set of costs, with certificate for counsel, to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with legal aid regulations.

53.I thank counsel for their assistance in this matter.

Mr Kevin Hon, instructed by Tangs Solicitors, for the applicant

Attendance of 1^st respondent was excused

Ms Sara Tong, instructed by the Department of Justice, for the    2^nd respondent & interested party