Commissioner of Registration v. Registration of Persons Tribunal and Another

HCAL 136 of 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 136 OF 2013

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JUDGMENT

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A. INTRODUCTION

1.This is the Commissioner’s application for judicial review, challenging the decision (“the Decision”) of the Registration of Persons Tribunal (“the Tribunal”) made on 10 June 2013.

2.By way of the Decision, the Tribunal allowed the appeal from the 2^nd respondent (“James”) against the Commissioner’s decision made on 20 December 2011 refusing to issue a Hong Kong permanent identity card (“HKPIC”) to James.  In substance, the Tribunal therefore decided that James is a permanent resident of Hong Kong.

3.Leave to apply for judicial review was granted by the court on 19 September 2013.  Since then, James (acting through his mother (“Ms Chan”)) was served with all the court papers and notified of the proceedings including this hearing.  Ms Chan by email and letter has indicated that they have filed all their evidence for this case and do not intend to appear at the hearing of this judicial review.

4.In these circumstances, I am prepared to proceed with the hearing in the absence of James (acting through Ms Chan).

5.The Tribunal as usual takes a neutral stance to this application and has not taken any steps herein.

B.   BACKGROUND

B1.   James’ application before the Commissioner

6.James was born in the United Kingdom on 17 March 2002.  He acquired British nationality at birth and is a UK citizen.

7.James’ father (“Mr McAllister”) was born in the Malta. He acquired British nationality at birth and is a UK citizen.

8.Ms Chan was born in Hong Kong and is of Chinese descent.  She holds a HKPIC.

9.Ms Chan married Mr McAllister in April 1993 in the UK.  In October 1994, she acquired British citizenship by registration under s 4(2) of the British Nationality Act 1981.  In order to acquire such registration for British citizenship under the Act, Ms Chan was required to fulfil the required duration of residence.  She has since been a holder of a British citizen passport.

10.Mr McAllister has been employed by the UK Foreign and Commonwealth Office since October 1992 and has been assigned with various overseas diplomatic postings outside the UK.

11.James has 3 elder siblings who have all acquired British citizenship and also have the right of abode in Hong Kong with their eligibility for HKPIC verified.  Those siblings acquired the right of the abode under circumstances different from James’, which are irrelevant to the present application.

12.From July 2001 to August 2004, James’ parents were residing in the UK and it was during this time when James was born there.

13.On 24 February 2004, Ms Chan made an application on behalf of James to the Hong Kong Immigration Department for Verification of Eligibility for Permanent Identity Card (“VEPIC”).  This was rejected by the Immigration Department on 30 April 2004.  She made a 2^nd VEPIC application for James on 3 August 2009.  This was again rejected.

14.On 20 December 2011, Ms Chan on behalf of James applied to the Immigration Department for a HKPIC.  The Commissioner refused the application on the same day, on the ground that there was insufficient evidence to show that James has the right of abode in Hong Kong.

15.Ms Chan on behalf of James appealed the Commissioner’s said decision to the Tribunal.  As mentioned above, by way of the Decision, the Tribunal allowed the appeal.

B2.   The appeal

16.The principal issue before the Tribunal is whether James is a permanent resident of Hong Kong.

17.Whether someone is a permanent resident of Hong Kong is prescribed exhaustively by paragraph 2 of Schedule 1 to the Immigration Ordinance (Cap 115) (“the IO”).  Relevant to his application is paragraph 2(a) to (c) which provide as follows:

“2. A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region –

(a) A Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region.

(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.

(c) A person of Chinese nationality born outside Hong Kong before or after the establishment of the Hong Kong Special Administrative Region to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b).

……” (emphasis added)

18.James relies on paragraph 2(c) of Schedule 1 to claim that he is a permanent resident of Hong Kong.

19.There is no dispute that James was:

(1)   born outside Hong Kong;

(2)   to a parent (ie, Ms Chan) who, at the time of his birth, was a Chinese citizen and was born in Hong Kong.

20.The issue before the Tribunal is thus whether James is “a person of Chinese nationality” as required under paragraph 2(c) of Schedule 1.

21.Paragraph 1(1) of Schedule 1 defines “Chinese citizen” as a person of Chinese nationality under the Nationality Law of the People’s Republic of China (“the Nationality Law”) as implemented in Hong Kong and interpreted in accordance with Explanations of Some Questions by the Standing Committee of the National People’s Congress concerning the Implementation of the Nationality Law in Hong Kong (“the Explanations”).

22.Paragraph 1 of the Explanations provides for two categories of people who are regarded as Chinese citizen: (1) Hong Kong residents of Chinese descent and born in the Chinese Territories (including Hong Kong), or (2) people who satisfy the criteria in the Nationality Law for having Chinese nationality.

23.Since James was born in the UK, it is common ground that he does not belong to the first category under paragraph 1 of the Explanations.  The question is thus whether he is a Chinese national under the second category, namely whether the criteria for being a Chinese national under the Nationality Law is satisfied.

24.For this purpose, Article 5 (“Article 5”) of the Nationality Law is applicable, which provides:

“父母雙方或一方為中國公民，本人出生在外國，具有中國國藉；但父母雙方或一方為中國公民並定居在外國，本人出生時即具有外國國藉的，不具有中國國藉。”

(English translation)

“Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality.” (emphasis added)

25.Thus, under Article 5, James would not be a Chinese national if:

(1)   he has “acquired foreign nationality at birth”, and

(2)   his Chinese national parent (namely Ms Chan) has “settled abroad” (定居在外國).

26.As James has acquired foreign nationality at birth, the only question for the Tribunal’s determination at the appeal is whether Ms Chan has “settled abroad” (定居在外國) within the meaning of Article 5 when James was born (see paragraph 27 of the Decision).

B3.   The Decision

27.The onus is on James to show in the appeal that he enjoys the right of abode in Hong Kong.  See regulation 21(2) of the Registration of Persons Regulations (Cap 177A).

28.The Tribunal sets out James’ case on this question at paragraphs 9-15 of the Decision as follows:

“9. [Ms Chan] submitted that her husband … is a British diplomat … employed by the UK Foreign and Commonwealth Office since October 1990. [James’] father had been posted to Belgrade, Riyadh, Taipei, Caracas, and the current posting is in Seoul.

10. Since [Ms Chan’s] marriage in 1993, she had followed her husband’s postings and she acquired British citizenship by registration in 1994 in order to accompany [James’] father on diplomatic posting overseas as it was a requirement for her to obtain diplomatic status.

11. The McAllister children accompanied their parents on those postings and their home is whether [James’] father worked at the time.

…

13. [Ms Chan] submitted that [James’] older siblings Susie went to boarding school in the UK in September 2007, Kathryn in September 2008, and Patrick in 2010, when they reached secondary school age but they travelled back home to Venezuela and South Korea during their school holidays while [James] continues to stay with his parents. [Ms Chan] submitted that the family has not settled in the UK.

14. [Ms Chan] also submitted that while [James] was born in the UK during a period when [his] father was posted back to the UK, he has since lived in Venezuela and South Korea with his parents and also returned many times to visit his extended family in Hong Kong. [Ms Chan] believed that but for the different location of [James’] birth, [he] is in the same position as his elder brother Patrick, who was born in Taiwan while [James’] father was on another posting and who has obtain[ed] the right to hold an HKPIC.

15. Lastly, [Ms Chan] submitted that she still considers Hong Kong to be her permanent place of settlement and a home for her family in the future.”

29.The Tribunal also sets out the Commissioner’s case at paragraph 31 as follows:

“The [Commissioner] submitted that having considered the totality of the relevant factors, [Ms Chan] had settled abroad at the time of [James’] birth on 17 March 2002 because: (a) she married [James’] father in the UK on 23 April 1993; (b) she registered as a British citizen on 24 October 1994; (c) she resided in the UK from July 2001 to August 2004; and (d) she only made sporadic visits to Hong Kong. The [Commissioner] submitted that [Ms Chan] has since her marriage in the UK in April 1993 ceased her ordinary residence in Hong Kong. And, on or before her registration as a British citizen in October 1994, [Ms Chan] had become settled abroad. Further, it was only due to [James’] father’s postings that [Ms Chan] and their children having been living away from the UK. Having regard to the circumstances, the [Commissioner] submitted that on a balance of probabilities [Ms Chan] had settled abroad at the time of the birth of [James] in 2002, or even much earlier, ie at the time of [Ms Chan’s] marriage in 1993 and upon her acquisition of British citizenship in 1994.” (emphasis added)

30.The Nationality Law does not define the term “settled abroad” (定居在外國).  At the hearing of the appeal, the Commissioner refers the Tribunal to, inter alia, the interpretation of Article 5 by the learned authors in the Chinese text known as Interpretation of the Laws of the People’s Republic of China – Encyclopaedia of Decided Cases (1993 ed) edited by Cai Chen and Xiao Yang (蔡誠、蕭揚主編《中華人民共和國百法釋解 – 案例全書》) (“the Interpretations”) as follows:-

“[釋解] 本條是關於確定中國公民在外國所生子女國籍的規定。按本條前半部份規定，凡中國人，不論他是中國男性公民還是女性公民，他在外國所生的子女都當然具有中國的出生國籍。這條規定與前條規定一樣採取了血統主義原則賦予中國人親子女的中國國籍。但在本條後半部份又對這項原則規定了一個例外，即，出生者的父母都定居在外國，或者是其父或其母一方定居在外國（按外國法律規定取得在該外國的永久居留權），其本人出生時按外國法律規定已經取得了外國國籍的，即取得了出生地國家的國籍或取得了其外國父或母的國籍，就不得具有中國國籍。因為父母在外國定居會使出生者與外國的實際聯繫更密切，服從外國國籍對其更有利。若出生者的父母無任何一方定居在外國，他所具有的外國國籍對中國是無效的，他只能具有中國國籍。”

(English translation)

“[Explanation] This Article is the provision about ascertaining the nationality of children born to Chinese nationals abroad. As stipulated in the first half of the Article, a child born to a Chinese national abroad, irrespective a male or female national, shall have Chinese nationality. Both this Article and the previous Article similarly adopt the principle of jus sanguinis to confer Chinese nationality to the natural children of Chinese nationals. However, the latter half of this Article provides an exception to this principle, namely a person whose both parents have settled abroad or either his father or mother has settled abroad (having obtained permanent right of abode in the said foreign country in accordance with the laws and regulations of that foreign country) and the person has acquired foreign nationality at birth, that is acquiring the nationality of the country of his birthplace or acquiring the foreign nationality of one of his parents who is a foreign national, he shall not have Chinese nationality. This is because with the parents settling abroad, the person would maintain a closer actual contact with the foreign country and it would be in his better interest to adhere to his foreign nationality... If neither of his parents has settled abroad, his foreign nationality shall not be recognized by China, and he can only have Chinese nationality.” (emphasis added)

31.The Tribunal accepts at paragraph 39 of the Decision that the Interpretations are interpretations of the laws of the People’s Republic of China, acknowledged to be authoritative and had been referred to by Hong Kong courts[1]. At paragraph 40 of the Decision, the Tribunal also notes that based on the Interpretations, a person has “settled abroad” if that person “has permanent right of abode in the foreign country in accordance with the law of that foreign country”.

32.However, the Tribunal also refers to two additional documents at paragraph 41 of the Decision:-

“41. This Tribunal also noted the following:

(a) 國務院僑務辦公室2005年11月8日頒布的《關於對華僑定義中「定居」的解釋（試行）》(the Explanation Issued by the Overseas Chinese Affairs Office of the State Council on the meaning of ‘settled’ in the definition of Overseas Chinese (for trial implementation) on 8 November 2005) (‘2005 Notice’) in which it provided that:

(i) ‘定居是指中國公民已取得住在國長期或者永久居留權’ (‘ ‘settled’ means that a Chinese citizen has already obtained from the country where he/she is living a long term or permanent right of abode’);

(ii) ‘中國公民雖未取得住在國長期或者永久居留權，但已取得住在國連續5年（含5年）以上合法居留資格，並在國外居住，視為定居’ (‘ ‘settled’ means that a Chinese citizen who has not obtained long term or permanent right of abode but has already obtained from the country where he/she is living a legal resident qualification continuously for more than 5 years (including 5 years), and he/she is living abroad’).

(b) The 2005 Notice was superseded by 國務院僑務辦公室《關於界定華僑外籍華人歸僑僑眷身份的規定》(國僑發 [2009] 5號) Notice Issued by the Overseas Chinese Affairs Office of the State Council on the Definition of Overseas Chinese, Foreign National Chinese, Returned Overseas Chinese and Relatives of Overseas Chinese status provision (Guo Qiao Fa [2009] No 5) (‘2009 Notice’) issued on 29 April 2009 in which it provides that:

(i) ‘ ‘定居’ 是指中國公民已取得住在國長期或者永久居留權，並已在住在國連續居留兩年，兩年內累計居留不少於18個月’ (‘ ‘settled’ means that a Chinese citizen has already obtained from the country where he/she is living a long term or permanent right of abode, and has lived in that country not less than 18 months accumulatively in two years’);

(ii) ‘中國公民雖未取得住在國長期或者永久居留權，但已取得住在國連續5年以上（含5年）合法居留資格，5年內在住在國累計居留不少於30個月，視為華僑’ (‘ ‘Overseas Chinese’ means that a Chinese citizen who has not obtained long term or permanent right of abode but has already obtained from the country where he/she is living a legal resident qualification continuously for more than 5 years (including 5 years), and he/she is living in that country not less than 30 months accumulatively in 5 years’).

As the 2009 Notice was issued before the Notice of Appeal was filed, it would be applicable to [James].”

33.The Tribunal then finds at paragraph 45 of the Decision:-

“While the Interpretations in 1993 interpreted ‘定居在外國’ (settled abroad) as ‘按外國法律規定取得在該外國的永久居留權’ (having permanent right of abode in the foreign country in accordance with the law of this foreign country), if the meaning ‘定居’ (settled) of the 2009 Notice applies, [Ms Chan] would not be considered as having ‘settled’ in the UK at the time of birth of [James], as although she [was] registered as a British citizen on 24 October 1994 and she resided in the UK from July 2001 to August 2004, she had not lived in the UK for 18 months accumulatively in two years at the time of birth of [James] since her registration as a British citizen but probably at most 11 months.” (emphasis added)

34.Thus, relying on what it understands as the meaning of “settled” of the 2009 Notice, the Tribunal concludes at paragraph 47 of the Decision that Ms Chan has not settled abroad (定居在外國) at the time of birth of James, and therefore finds that James has the right of abode in Hong Kong under paragraph 2(c) of the Schedule and is entitled to a HKPIC.

35.It is however pertinent to note that the 2005 and 2009 Notices have never been submitted by either party to the appeal, nor drawn to the parties’ attention by the Tribunal at any time prior to the handing down of the Decision.

C.   THIS JUDICIAL REVIEW

36.The Commissioner raises two grounds of judicial review.

37.The first ground is that the Decision is tainted with procedural unfairness.

38.Mr Chang for the Commissioner submits that this is so as the Tribunal relied on and applied the 2009 Notice in construing the meaning of “settled abroad” (定居在外國) under Article 5 without giving the parties (in particular the Commissioner) any opportunity to make any representations on its applicability, relevance in the appeal or proper construction.  It is particularly so when the 2009 Notice formed the main (even if not the only) reason in allowing the appeal (see above).  The Decision is therefore unlawful.

39.I accept Mr Chang’s submissions.

40.It is well established that a decision making body should not see relevant materials without giving those affected a chance to, if they wish, comment on it and respond to it.  This is premised on a party’s right to be heard.

41.Thus, in R v London Borough of Camden ex parte Paddock (transcript, 8 September 1994), Sedley J (as he then was) said at page 8:

“The principle that a decision-making body should not see relevant material without giving those affected a chance to comment on it and, if they wish, to controvert it, is fundamental to the principle of law (which governs public administration as much as it does adjudication) that to act in good faith and listen fairly to both sides is ‘a duty lying upon everyone who decides anything’ (Board of Education v Rice [1911] AC 179, per Lord Loreburn LC). It is neither technical nor unduly onerous for the decision-makers in every branch of public life to understand and work by this principle, and to appreciate that it means in turn that they should not receive relevant material from outside sources without the knowledge of those affected.”

42.Similarly, Sedley LJ also stated in R (Ramda) v Secretary of State for the Home Department [2002] EWHC 1278 (Admin) at paragraph 25:

“… [the decision-maker] must not rely on potentially influential material which is withheld from the individual affected. This is a simple corollary of Lord Loreburn’s axiom that the duty to listen fairly to both sides lies upon everyone who decides anything (Board of Education v Rice [1911] AC 179) and of Lord Denning’s dictum that if the right to be heard is to be worth anything it must carry a right in the accused man to know the case against him (Kanda v Government of Malaya [1962] AC 322).”

43.It is clear from the Decision that the 2009 Notice and the 2005 Notice are relevant materials that the Tribunal has taken into account in arriving at the Decision.  Applying the above principle, it is clear to me that, the Tribunal’s failure to afford the parties (in particular the Commissioner) any chance to comment on these Notices amounts to a breach of natural justice and to depriving the parties (in particular the Commissioner) a fair opportunity to be heard.

44.The Decision is therefore tainted with material procedural unfairness and should be quashed on this ground alone.

45.The Commissioner also relies on the ground of Wednesbury unreasonableness, irrationality and/or error of fact and law in support of this judicial review.

46.This ground is based on the Commissioner’s submissions on why the interpretations given by the Tribunal on the 2009 Notice are wrong or irrelevant to the interpretation of Article 5.  In support of these submissions, Mr Chang effectively raises arguments which the Commissioner would have raised before the Tribunal if she had been referred to the 2009 Notice (see paragraphs 35-38 of Mr Chang’s skeleton).  Alternatively, Mr Chang also asks this court to come to certain conclusions on the evidence even if the 2009 Notice is relevant and applicable to say why Ms Chan had settled aboard at the time of James’ birth (see paragraph 39 of his skeleton).

47.Suffice for me to say that it is inappropriate for this court in judicial review to deal with these submissions or come to the conclusions as invited by the Commissioner on the interpretation and effect of the 2009 Notice.  These should be matters for the Tribunal to reconsider when the appeal is remitted to it.

48.I therefore would not deal with this ground of judicial review.

D.   CONCLUSION

49.For the above reasons, I would allow this judicial review on the ground of procedural unfairness.  I further order that the appeal be remitted back to a differently constituted Tribunal for reconsideration.

50.The Commissioner does not ask for costs.  I therefore further order that there be no order as to costs of this application.

51.I thank counsel for his assistance.

Mr Jonathan Chang, instructed by Department of Justice, for the applicant

The 1^st respondent, attendance be excused

The 2^nd respondent, in person, absent