Gutierrez Joseph James, A Minor v. Commissioner of Registration and Another

CACV 22/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 22 OF 2012

(ON APPEAL FROM HCAL NO. 137 OF 2010)

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BETWEEN

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D E C I S I O N

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Hon Stock VP (giving the Decision of the Court):

1.By our judgment dated 7 June 2013, we dismissed an appeal from the decision of Lam J who had dismissed applications for judicial review challenging a decision of the Commissioner to refuse the applicant (Joseph Gutierrez) a permanent identity card and the decision of the Registration of Persons Tribunal to reject his appeal from the Commissioner’s decision.

2.There is now before us a notice of motion dated 14 August 2013 which seeks leave to appeal to the Court of Final Appeal pursuant to the provisions of s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 on the basis of three questions which are suggested to be questions of great general or public importance:

“(a) For the purpose of qualifying as a HKSAR permanent resident under Article 24(2)(4) of the Basic Law of the HKSAR (“the Basic Law”), what must a child or young adult applicant who is a non-Chinese national born in Hong Kong and whose application is made before he or she reaches the age of 21 establish, either on his own or by a parent or legal guardian on his or her behalf, to satisfy the requirement under Article 24(2)(4) of “having taken Hong Kong as [his or her] place of permanent residence.”

(b) For the purpose of Article 24 and Article 31 of the Basic Law, whether and under what circumstances a person given permission to remain in Hong Kong as a visitor may become or be recognized as a non-permanent resident of the HKSAR to enjoy the freedom to travel and to enter and leave the HKSAR.

(c) Following a finding of an error of law on the part of an inferior tribunal, whether a court exercising its supervisory jurisdiction in an application for judicial review is entitled to decline to remit the case to the inferior tribunal for reconsideration by the inferior tribunal upon the correct approach identified by the court and instead to dismiss the application for judicial review.”

3.By consent, the application is determined on the basis of written submissions.

4.It is not in our judgment appropriate to grant leave in relation to the first question because as is evident from the nature of the issue itself as well as from the judgment of the Court of Final Appeal in Prem Singh v Director of Immigration (2003) 6 HKCFAR 26, the issue is peculiarly fact sensitive.

5.We note from the written arguments advanced on behalf of the applicant that it is intended to request the Court of Final Appeal to revisit its discussion of the “permanence requirement” in Prem Singh.  We ourselves see no reasonable basis for such an invitation but, in any event, whether to accept that invitation is quintessentially a matter for Court of Final Appeal and not for this Court.

6.As for question (b) the answer is that a person who enjoys the immigration status of a mere visitor cannot be a non- permanent resident of the HKSAR.

7.We think, with respect, that the answer to the third question is that the discretion of the supervisory court to refuse relief is well-established and requires no reference to the Court of Final Appeal.

8.Further, there is no basis upon which we are minded to grant leave on the “or otherwise” limb of the statutory provision.

9.Accordingly, the application for leave is refused and we make an order nisi that the costs of the application be to the respondent, with legal aid taxation of the applicant’s costs. 

Ms Gladys Li SC and Mr P Y Lo, instructed by Daly & Associates, for the Applicant/Appellant

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

Please refer to FACV2/2014 for the relevant appeal(s) to the Court of Final Appeal.