WANG WENXIANG AND ANOTHER v. REGISTRATION OF PERSONS TRIBUNAL

HCAL 177/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 177 OF 2013

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JUDGMENT
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A. INTRODUCTION

1.  This is the applicants’ judicial review challenging the decision (“the Decision”) of the Registration of Persons Tribunal (“the Tribunal”) dated 16 September 2013. By way of the Decision, the Tribunal dismissed the applicants’ appeals against the decisions of the Commissioner of Registration (“the Commissioner”) not to issue Hong Kong permanent identity cards (“HKPIC”) to them.

B. BACKGROUND

2.  The 1^st applicant was born on 5 April 1957 in the Mainland. She married her husband, Mr Siu Pui Shan (“Mr Siu PS”), in the Mainland on 25 February 1981. They have two sons and both of them were born in the Mainland:

(1) The elder son is Xiao Weinan (“Xiao”) and was born on 7 January 1982. He was granted an entry visa to take up residence in Hong Kong under the Quality Migrant Admission Scheme on 25 August 2009.

(2) The younger son is the 2^nd applicant, who was born on 28 August 1988.

3.  In 1994, Mr Siu PS entered Hong Kong on a one-way permit (“OWP”) and was issued with a HKPIC in 2001. Since 1999, he has been operating a mining business in Australia.

4.  On 17 January 2003, the 1^st applicant and the 2^nd applicant (then aged 14) came to Hong Kong on the strength of OWPs and were granted seven-year unconditional stay in Hong Kong. On 27 January 2003, each of them was granted a Hong Kong identity card (“HKIC”) and a Hong Kong Document of Identity for Visa Purposes (“HK D/I”).[1]

5.  Shortly thereafter, the 2^nd applicant left Hong Kong and returned to the Mainland to continue his secondary schooling.

6.  Sometime in 2003, Mr Siu PS moved to Australia to attend to his mining business. The 1^st applicant followed her husband to Australia to take care of him. The 2^nd applicant later also joined their parents and completed his secondary and tertiary education in Australia. On graduation in 2012, he returned to Hong Kong and has lived with his parents ever since.

7.  Between 2009 and 2013, Mr Siu PS purchased three properties in Hong Kong, one in 2009 (as a residence for him, the 1^st applicant, Xiao, and the 2^nd applicant), one in 2010 (for Xiao who had just gotten married), and one in 2013 (as an investment).

8.  On 18 January 2010, the applicants applied to the Immigration Department (“ImmD”) for Verification of Eligibility for Permanent Identity Card (“1^st VEPIC Applications”), claiming to be a Hong Kong permanent resident under paragraph 2(b) of the Schedule to the Immigration Ordinance (Cap 115) (“IO”) and that each had been ordinarily resident in Hong Kong for seven years since 17 January 2003.

9.  In assessing the applicants’ VEPIC Applications, the ImmD noticed that since their arrival in Hong Kong on the strength of an OWP in January 2003, the applicants had only entered Hong Kong intermittently on the strength of their HK D/I, HKIC, People’s Republic of China passport, and Australian passport and stayed in Hong Kong for short durations upon each arrival. From January 2003 to January 2010 (which is the relevant period under their 1^st VEPIC Applications), the 1^st applicant and the 2^nd applicant only stayed in Hong Kong for about 9% and 3% of the time respectively. The ImmD also found that during the same period, there was no indication that the applicants’ principal family members had maintained habitual residence in Hong Kong. In the circumstances, the ImmD considered that the applicants had failed to satisfy the seven-year continuous ordinary residence requirement. By two letters dated 14 and 15 April 2010, the ImmD informed the 2^nd applicant and the 1^st applicant respectively that their VEPIC Applications were refused because they had not been ordinarily resident in Hong Kong for a continuous period of not less than seven years.

10.  On 9 June 2010, the applicants applied for HKPICs. The Commissioner rejected their applications on the same day on the basis that there was insufficient evidence to prove that they had the right of abode in Hong Kong.

11.  On 28 June 2010, the applicants lodged notices of appeal ROPT 38 & 39/2010 (collectively, the “Earlier Appeals”) to the Tribunal (differently constituted from the present one). By a decision (“the Earlier Decision”) dated 30 March 2011, the Tribunal dismissed the Earlier Appeals. The Tribunal ruled that they had failed to prove that they had ordinarily resided in Hong Kong during the period from 17 January 2003 to 17 January 2010, despite the finding in paragraph 15 of its decision that “so far as [the 1^st applicant] is concerned, the fact that the family home was only purchased in 2009 and that she had spent more time (still only 113 days) in HK tend to indicate that she had a change of heart to reside ordinarily in HK as her elder son had completed his education and moved to live in HK” (emphasis added).

12.  The applicants did not challenge the Earlier Decision by way of any application for judicial review. However, about four months after the Earlier Decision, on 30 July 2011, the applicants submitted fresh applications for Verification of Eligibility for Permanent Identity Card (“2^nd VEPIC Applications”), claiming a longer period of ordinary residence than with the earlier application, namely from 17 January 2003 to 30 July 2011.

13.  For the 2^nd VEPIC Applications, having regard to the applicants’ respective circumstances and with reference to section 2(6) of the IO, the ImmD considered that neither had maintained seven-year continuous ordinary residence in Hong Kong during the said period. The 1^st applicant only stayed in Hong Kong for a total of 241 days during the period from 17 January 2003 to 27 January 2010, while the 2^nd applicant only 78 days during the same period. During their lengthy and frequent absences, they were mostly residing in Australia where they lived as a household. By a letter dated 27 September 2011, the ImmD notified the applicants’ solicitors that the applicants’ claim to have the status of permanent resident of the HKSAR could not be established.

14.  On 12 March 2012, the applicants applied to the ImmD for HKPICs. The Commissioner rejected the applications on the same day. On 11 April 2012, the applicants again lodged notices of appeal under ROPT 50 & 51/2012 to the Tribunal. By way of the Decision, these appeals were dismissed on 16 September 2013 on the following two alternative grounds:

(1) The Tribunal was bound by the determination of a differently constituted Tribunal panel on 30 March 2011 (ie, the Earlier Decision) that from 2003 to 2010, the applicants were not ordinarily resident and thus had no right of abode in Hong Kong.[2]

(2) Alternatively and in any event, after considering all the evidence afresh and independently, the Tribunal found on the facts that the applicants were not ordinarily resident in Hong Kong from 2003 to at least 2009.[3]

15.The applicants now seek to challenge both grounds of the Decision.

C. THIS JUDICIAL REVIEW

C1. Grounds of judicial review

16.  The broad grounds relied upon by the applicants in support of the judicial review and advanced at the hearing are twofold, namely that:

(1) the Tribunal failed to take into account all relevant considerations; and

(2) the Tribunal took into account irrelevant considerations.

17.  Before elaborating on these two grounds, it is convenient to first set out the legal framework relevant to this application.

C2. The relevant statutory provisions

18.  Section 3D(1) of the Registration of Persons Ordinance (“ROPO”) provides for the Registration of Persons Tribunal’s jurisdiction as follows:

“The Tribunal shall have jurisdiction to hear and decide any appeal by a person who is aggrieved by a decision of a registration officer not to issue a permanent identity card to that person, or to declare a permanent identity card issued to him to be invalid.”

19.  Section 3D(4) further stipulates that:

“An appeal under subsection (1) may only be brought by a person on the ground that on the facts of his case he enjoys the right of abode in Hong Kong and shall succeed if, and only if, the Tribunal determines that he has that right.”

20.  It is common ground that a permanent resident of Hong Kong shall have the right of abode in Hong Kong. For the present purposes, the relevant statutory provisions relating to a claim for the right of abode in Hong Kong are as follows.

21.  Article 24(2) of the Basic Law (“BL”) which states that:

“…

The permanent residents of the Hong Kong Special Administrative Region shall be:

…

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;

…

The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.”

22.  The applicants also relied on paragraph 2(b) of Schedule 1 to the IO, which mirrors the above category of “permanent residents”.

23.  Thus, under both Article 24(2) of the Basic Law and paragraph 2(b) of Schedule 1 to the IO, a person who has ordinarily resided in Hong Kong for a continuous period of not less than seven years shall become a permanent resident of Hong Kong. For convenience, I would call this residence requirement “the seven-year ordinary residence requirement”.

24.  In considering whether a person has met the seven-year ordinary residence requirement, section 2(6) of the IO is relevant, which reads as follows:

“For the purposes of this Ordinance, a person does not cease to be ordinarily resident in Hong Kong if he is temporarily absent from Hong Kong. The circumstances of the person and the absence are relevant in determining whether a person has ceased to be ordinarily resident in Hong Kong. The circumstances may include-

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

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

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

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

25.  Having set out the above, I will now deal with each of the applicants’ grounds of judicial review in turn.

C3. Ground 1: failure to take into account relevant considerations

26.  In support of this ground of judicial review, Mr Fung SC (leading Mr Kwok Sui Hay and Mr David Chen) for the applicants raises five contentions. Each of them will be examined.

27.  Mr Fung first contends that the Tribunal failed to take into account, sufficiently or at all, the immigration status of the applicants as holders of OWPs when they entered Hong Kong in January 2003. Leading counsel submits in his skeleton that the applicant’s immigration status as OWP holders is of decisive weight in the determination of their ordinary residence in Hong Kong.[4]

28.  At the hearing, Mr Fung clarifies that it is not the applicants’ case that the fact that they held OWPs is conclusive on the question of whether they met the ordinary residence requirement under BL 24(2)(2). Instead, leading counsel says what the applicants are contending is only that the OWP is an important piece of evidence giving rise to a rebuttable presumption that the holders have the intention to settle in Hong Kong.

29.  With respect to Mr Fung, I am unable to accept his contention.

30.  First, the case based on the OWP now advanced in this court (by a new team of counsel) was not the one raised before the Tribunal. As recorded in paragraph 4(e)(iv) of the Revised Submissions of the applicants’ then counsel and also as confirmed in the first and second affirmations of the applicants’ solicitor,[5] the case raised before the Tribunal was as follows:

“The present law and policy of the government governing One Way China Exit Permit (OWCEP) holder is that once the OWCEP holder entered Hong Kong and given unconditional stay in Hong Kong for 7 years, it doesn’t matter how long and how frequent the OWCEP is absent from Hong Kong, upon 7 years of stay, he is entitledto VEPIC. There is no requirement of OWCEP holder to stay in Hong Kong physically for a mandatory period.”

31.  Properly understood, the applicants’ case before the Tribunal was essentially that, independent of the time they have actually resided in Hong Kong, OWP holders would be automatically or necessarily entitled to Hong Kong permanent resident status after the expiration of the seven-year unconditional stay granted to them by the ImmD. Thus, insofar as it is now contended that the grant of an OWP gives rise to a rebuttable presumption of a continuing intention to settle in Hong Kong, and that this is a significant factual matter that the Tribunal should take into account in assessing the totality of the evidence, this is a fact-sensitive contention which the Commissioner and the Tribunal were given no opportunity to address in the appeals. In the premises, it would be inappropriate for the court to allow the applicants to now run this argument at the judicial review stage.

32.  Faced with this, Mr Fung argues that although the applicants’ then counsel put the case too high, that does not relieve the Tribunal from taking the right approach in assessing the matter. He cites Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at paragraphs 45, 52 to 55 and invites this court, having regard to the Tribunal’s duty to determine the issue of permanent resident status which (says Mr Fung) is a question of sufficient gravity, to subject the Tribunal’s Decision to “rigorous examination and anxious scrutiny to ensure that the … high standards of fairness have been met”.

33.  With respect to Mr Fung, I do not think his submission assists him. In Prabakar, supra, the context in imposing the high standards of fairness concerns the Secretary for Security’s determination of the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. The special nature of the case warranting the imposition of the aforesaid standards for fairness is highlighted by the former Chief Justice Li in the judgmentat paragraph44:

“Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary for Security in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”

34.  However, in the present case, although the Tribunal’s duty concerns determination in relation to the right of abode, it is very different from the case where the life and limb of an applicant are in jeopardy thereby justifying the need to subject the Tribunal to the intensity of review as contended by the applicants.

35.  For these reasons, I cannot accept the submissions that there is a higher duty imposed on the Tribunal to even consider factually sensitive matter in a manner which was not relied on by the applicants themselves in the appeals.

36.  Mr Fung’s second contention made in support of the first ground of judicial review is that the Tribunal committed an error of law in having completely overlooked the principle of law that a person may at any given moment have more than one ordinary place of residence. In support of this principle, leading counsel refers me to the Court of Appeal’s decision in Sun Jie v Registration of Persons Tribunal (unreported, CACV 320/2004, 22 December 2005) at paragraph 10 where Rogers VP said:

“… [O]rdinary 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. It is possible that a person may have two places in which he can be ordinarily resident at the same time. That is not common but it is certainly possible. 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.”

37.  Relying on the above dicta, the applicants submit that it is not only perfectly possible, but well recognised as a principle of law, for the applicants to retain ordinary residence status both in Hong Kong and Australia. On this basis, the fact (as concluded by the Tribunal) that the applicants “did intend to and did settle in Australia” (says Mr Fung) in no way precludes the applicant from also maintaining a place of residence in Hong Kong.

38.  I agree with Mr Chan, counsel for the Commissioner, that the applicants’ said contention is unsustainable.

39.  At paragraph 51 of its Decision, the Tribunal expressly recognised the above-mentioned paragraph in Sun Jie, supra, and pointed out rightly that “ordinary residence must entail presence in that place”. In fact, in contrast to the case now advanced, the applicants’ own case before the Tribunal was not that they were ordinarily resident in both Australia and Hong Kong. Their contention was simply that their absence from Hong Kong (when they were living in Australia) were not such as to amount to a break in ordinary residence.[6]

40.  But more fundamentally, in my view, what the Tribunal determined was that, based on the evidence before the Tribunal, the applicants as a matter of fact did not have the intention to settle in Hong Kong from 2003 to at least 2009 but instead only had the intention to and did settle in Australia. In so deciding, the Tribunal did not proceed on the basis that, merely because the applicants had settled in Australia, the applicants were as matter of law or logic precluded from also achieving ordinary residence in Hong Kong. All that the Tribunal decided, as it is entitled to in the light of all the evidence before it, was to look at the totality of the evidence before it (which included matters such as the time and place the applicants had spent when they were in Hong Kong, and the purposes of their stay in Hong Kong, together with the fact that at the same time they had been spending much longer time in Australia) and come to the factual conclusion that the applicants had not been ordinarily resident in Hong Kong for the relevant period.[7] In other words, the Tribunal did not reject the applicants’ case of ordinary residence on the basis that they could not have more than one place of ordinary residence. There is therefore no error of law committed by the Tribunal as contended by the applicants in coming to this conclusion.

41.  I therefore also reject the applicants’ second contention.

42.  Mr Fung’s third contention is that the Tribunal failed to take into account the fact that the applicants would not have needed to apply for HKIDs if they had been in Hong Kong simply for transit “en route” to Australia and some other places. He submits that the applicants would have been exempted under Regulation 25(d) of the Registration of Persons Regulation (Cap 177A) (“ROPR”) from applying for the issue of an identity card if they were “bona fide traveler[s] in transit through Hong Kong”. In other words, Mr Fung is saying that the Tribunal should have taken into account the fact that the applicants had applied for and obtained HKIDs, which supports the intention to settle in Hong Kong.

43.  The relevant legal principles concerning the ground of failure to take into account relevant considerations were recently summarised in BH v Director of Immigration, HCAL 105/2014 (14 April 2015) by Chow J at paragraphs 63 to 65 as follows:

“63. Third, ‘in proceedings for judicial review, the ground of failure to take into account a relevant consideration can only be made out if the decision-maker has failed to take into account a consideration which he is bound to take into account in making that decision’: see Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, at 339A-B per Litton PJ, citing with approval the decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. Also in Lau Kong Yung v Director of Immigration, at 332G-H, Li CJ stated that ‘for impugning a decision one is concerned with what the decision maker is bound to consider’.

64. Fourth, it is important to distinguish between three different categories of consideration: (i) those clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had, (ii) those clearly identified by the relevant legislation as considerations to which regard must not be had, and (iii) those to which the decision maker may have regard if, in its judgment and discretion, it thinks it right to do so: see Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, at 439 per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037. In relation to the third category of consideration, what is and what is not a relevant consideration for a public decision-maker to have in mind is, absent a statutory code of compulsory considerations, for the decision-maker, not the court, to decide: R (AL Rawl) v Foreign Secretary [2008] QB 289, at paragraph 131 per Laws JA.

65. Fifth, in relation to the third category of consideration and to the extent that the Director has decided to take into account any particular factor as being relevant to the exercise of his discretion, the weight that should be given to that factor is likewise a matter for the Director, not for the court: see Qamar Zaman v Department of Immigration, HCAL 145/2002 (13 June 2003), at paragraphs 17 and 18 per Hartmann J (as he then was).”

44.  Viewed against the above principles, I am also unable to accept Mr Fung’s third contention.

45.  First, there is no suggestion that the need or otherwise for the applicants to apply for HKIDs is a mandatory consideration that the Tribunal was bound to take account of. Neither, in my view, can such a suggestion be acceptable. Regulation 25 of the ROPR cited by the applicants only sets out the instances in which one is not required to register or apply for the issue of an identity card or for the renewal of an identity card under the ROPO. It does not actually go as far as suggesting expressly or impliedly that those instances are the considerations the Tribunal is bound to take into account in deciding the key question of whether the applicants have the right of abode or were ordinarily resident in Hong Kong throughout the relevant period.

46.  Thus, whether or not the need or otherwise to apply for HKIDs is a relevant consideration for the Tribunal to have in mind is only for the Tribunal as the decision-maker to decide. There being no contention that the Tribunal was Wednesbury unreasonable in this respect, the applicants’ contention must also be rejected on this basis.

47.  Second and in any event, it must further be noted that the applicants in the appeals did not rely on the fact that they had obtained HKIDs to support their case of ordinary residence.[8] As such, it is not open to the applicants to now complain in this application that the Tribunal had wrongly failed to take this factual matter into account in its decision. This contention should be rejected on this basis also.

48.  Mr Fung’s fourth contention is that the Tribunal failed to take sufficiently into account the following two groups of evidence presented by the applicants in relation to their ordinary residence in Hong Kong:-

(1) Evidence given by Mr Siu PS and Xiao to the effect that they reside in Hong Kong and treat Hong Kong as their permanent residence.

(2) The applicants’ own statements to prove their intentions to treat Hong Kong as their ordinary and permanent residence.

49.  Concerning the first group of evidence, the Tribunal commented at paragraph 46 of the Decision that it is “… nothing new in terms of substance”and “… is new only in the sense that they [Mr Siu PS and Xiao] did not give evidence in the Previous Appeals”.[9] The applicants now submit that the Tribunal was wrong to have dismissed the evidence, which is plainly relevant to the applicants’ ordinary residence because according to section 2(6) of the IO, one of the matters to be taken into account in determining a person’s ordinary residence is “the whereabouts of the principal members of his family”.

50.  As for the second group, the Tribunal commented at paragraph 47 of its Decision that they should “treat such evidence with circumspection”. Further, at paragraph 48(b) of its Decision,[10] the Tribunal noted that:

“[The second item] is self-serving only. We have to assess the evidence objectively to find out what the subjective intention was. As Rogers VP said at §8(e) of Sun Jie v Registration of Persons Tribunal, CACV 320/2004,

‘… 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 that period…’

Thus, little regard, if any, shall we pay to [the second item].”

51.  The applicants complain that their professed intention to treat Hong Kong as their ordinary and permanent residence is plainly a relevant matter to be taken into account when deciding their ordinary residence. While they accept that such statements may be argued to be self-serving, the applicants say that the Tribunal should nevertheless have taken the same into account. The fact of their relevance is underscored by paragraph 3(1)(b) of Schedule 1 to the IO which requires a person claiming to be a permanent resident under paragraph 2(d) of Schedule 1 to make a declaration that he has taken Hong Kong as his place of permanent residence.

52.  I am unable to accept these submissions.

53.  It is clear from the Decision (as quoted above) that the Tribunal did address the evidence in question but did not attach much weight to it in support of the applicants’ substantive case on ordinary residence. Thus, as submitted by Mr Chan, the applicants’ present complaints are in essence no more than a challenge to the Tribunal’s assessment of or giving of weight to the evidence.

54.  However, it is trite that the proper role of this court sitting in judicial review is not to sit on appeal from the Tribunal’s determination or decision but only to play a supervisory role. This means that this court is not concerned with the merits of the decision, but rather the legality of the decision as well as the fairness of the decision-making process: Mumtaz Hussain v The Chief Executive in Council (unreported, HCAL 163/2002, 18 November 2003) at paragraph 8, per A Cheung J (as he then was)).

55.  In discharge of this role, the court would not look into or interfere the Tribunal’s weighing exercise of the evidence unless there is any error of law.

56.  As the substance of the applicants’ fourth contention is focused on challenging the Tribunal’s weighing exercise of the evidence and the eventual merits of the Decision (but manifest irrationality or Wednesbury unreasonableness is not alleged at all in the applicants’ Form 86), judicial review is not the proper venue to consider it. On this basis, I also reject this contention.

57.  At the hearing, Mr Fung further complains that the Tribunal did not take into account the 1^st applicant’s evidence to the effect that the companies of which she is one of the beneficial owners carried on substantive business in Hong Kong. Leading counsel submits that this statement is plainly relevant when the Tribunal is considering one of the IO section 2(6) factors, namely “employment by a Hong Kong based company”. However, in my view, the Tribunal did look at this statement, but did not accept it in effectively finding this part of the evidence unreliable. Thus, the Tribunal said at in paragraph 48(e) of the Decision that it was of the view that her evidence was “evasive, full of inconsistencies and not credible” (for the detailed reasons set out in paragraph 48(e)(i) and (ii) of its Decision). This is a conclusion the Tribunal as the fact-finder was fully and reasonably entitled to form. Mr Fung’s latest complaint is thus again in substance a complaint about the Tribunal’s assessment of the evidence. For the same reasons I have given above, I would similarly reject Mr Fung’s arguments.

58.  Mr Fung’s final contention made in support of the first ground of judicial review is that the Tribunal, contrary to section 2(6) of the IO, failed to consider the applicants’ reasons for staying in Australia (being working and/or studying) in deciding the issue of ordinary residence. Mr Fung suggests that the Tribunal’s failure is shown in paragraph 54 of its Decision where the Tribunal expressed that “[n]or do we accept working and/or study as such valid explanations”.

59.  However, the Tribunal’s expression above was taken out of context by the applicants. One should read paragraph 54 in its entirety and together with the other relevant paragraphs of the Decision as follows:

“51. It is trite that the general rule is that ‘ordinary residence must entail presence in that place’: see Sun Jie v Registration of Persons Tribunal, supra at §10 per Roger VP.

52. Against this general rule, Mr Raymond Chau, Counsel for the Appellants, submitted that so long as there was valid explanation for the absence from Hong Kong, the absence should not be regarded as breaking any ordinary residence. He drew on Lau San Ching v Liu, Apollonia (1995) 5 HKPLR 23. In that case, Mr Lau was found to be ordinarily resident in Hong Kong despite his absence from Hong Kong for 10 years, during which he was involuntarily imprisoned in the PRC. Based on this, Mr Chau contended that so long as there are valid explanations for the absence, the Appellants should be regarded as ordinarily resident in Hong Kong. In the present Appeals, he submitted that the valid explanations were (1) the Appellants had to work in Australia for the family’s business; and (2) the Appellants had to study in Australia.

53. Lau San Ching, supra is of no assistance to the Appellants. First, Mr Lau San Ching was found to have been ordinarily resident in Hong Kong before he was involuntarily imprisoned in the PRC. Second, the case does not go so far as to say that working and/or study were such valid explanations for the absence.

54. Nor do we accept working and/or study as such valid explanations. Indeed, there are no decided cases for such a bold proposition that a person who has been long absent from Hong Kong would still be regarded as ordinarily resident in Hong Kong if the reasons for the absence were work and/or study. After all, one has to look at all the relevant circumstances to make an objective assessment. There is no rigid formula. Nor is it appropriate to put forward any such rigid formula or one-size-fits-all policy. An approach of overall assessment of all the relevant circumstances is in fact reflected in section 2(6) of the IO, which states that:

‘…’

55. Adopting such overall approach, and having considered all the evidence afresh (and we repeat paragraphs 46 and 48 above in respect of the analysis of certain material evidence), we cannot but come to the same factual findings as succinctly summarised in paragraph 8 of the determination in the Previous Appeals (as set out in paragraph 42 above).”

60.  As recorded in paragraph 52 of the Decision, the relevant submission of the applicants’ then counsel was notably that the applicants should be regarded as ordinarily resident in Hong Kong so long as there are “valid explanations” for their absence, namely to work and/or study in Australia in this case. What the Tribunal then said at paragraph 54 of the Decision was in response to this proposition that work and/or study must amount to “valid explanations” since there are no decided cases for such a bold proposition that a person who has been long absent from Hong Kong would still be regarded as ordinarily resident in Hong Kong as long as the reasons for the absence were work and/or study. The Tribunal then (rightly so in my view) suggested that one must instead adopt an overall approach and look at all relevant circumstances (including those factors stated in section 2(6) of the IO) to make an objective assessment, rather than purely looking for the explanations of absence such as work and/or study of the applicants. Putting the Tribunal’s expression quoted by the applicants in such proper context, that could not be taken to have imposed any “categorical restriction” to the effect that work and/or study could never be valid reasons for absence from Hong Kong or relevant factors when the Tribunal is considering section 2(6) of the IO or whether the applicants have fulfilled the seven-year ordinary residence requirement.

61.  Further, as recorded in paragraph 55 of Tribunal’s Decision, it was only after adopting the overall approach and having considered all the evidence afresh that the Tribunal cannot but come to the factual findings same as those in the Earlier Decision by the differently constituted Tribunal. For the foregoing reasons, the applicants fail to show this court how the Tribunal had failed to consider the applicants’ working and/or studying in Australia in determining the issue of ordinary residence.

62.  I therefore do not agree with the fifth contention.

63.  As I have rejected all the contentions made in support of it, I would dismiss the first ground of judicial review.

C4. Ground 2: taking into account irrelevant considerations

64.  Under this ground, Mr Fung’s principal argument is that the Tribunal erred in concluding that it was bound by the Earlier Decision under a modified doctrine of res judicata as explained in the Decision.

65.  However, as mentioned above, the Tribunal in the Decision had, separately and without having regard to the Earlier Decision, alternatively and independently looked at and assessed afresh the evidence in its entirety and found that the applicants had not acquired seven years continuous ordinary residence in Hong Kong. See paragraphs 50-57 of the Decision.

66.  For the reasons I have stated above, the Tribunal’s said findings made independent of the Earlier Decision cannot be successfully challenged on any of the grounds advanced by the applicants in this judicial review.

67.  On this basis alone, the Tribunal’s decision in dismissing the applicants’ appeals should stand whether or not the Tribunal is also correct in its conclusion based alternatively on the res judicata ground.

68.  It is therefore strictly speaking unnecessary for me to decide this ground of challenge.

69.  However, as this ground has been fully argued before me, for completeness, I would briefly deal with them as follows.

70.  In support of this ground, Mr Fung has mounted two principal complaints.

71.  The primary complaint can be summarised as follows:

(1) The Earlier Decision concerned the applicants’ ordinary residence over the period of 17 January 2003 to 17 January 2010 (“the Earlier Period”). The applicants accept that the Tribunal’s determination in the Earlier Decision that the applicants were not ordinarily resident in Hong Kong over the Earlier Period is final under section 3D(6) of the ROPO.

(2) The proceedings before the Tribunal which culminated in the Decision, however, concerned a wholly different issue, namely the different and extended period of 17 January 2003 to 30 July 2011 (“the Extended Period”). No determination had previously been made in respect of the applicants’ ordinary residency over the Extended Period assessed as a whole.

(3) The applicants therefore did not in the appeals seek another determination from the Tribunal in respect of their ordinary residency over the Earlier Period.

(4) Accordingly, the Tribunal is in no way bound by the Earlier Decision because the issue is the applicants’ ordinary residence over the Extended Period, not the Earlier Period. Even though it is conceded that there are substantial overlaps between the Earlier Period and the Extended Period, the overlapped period cannot be looked at in isolation but the whole Extended Period must be looked at afresh. The Tribunal misled itself in not only taking into account but considering itself bound by the outcome and decisions in the previous appeals.

72.  I do not think that the applicants’ submissions assist them in the present case.

73.  It is clear that what the Tribunal did under this ground is that it concluded that (a) the applicants are bound by the Earlier Decision’s factual finding that they were not ordinary resident from 2003 to 2010 (ie, the Earlier Period), (b) the applicants therefore could not then establish the seven years continuous ordinary residence only with the additional one and a half years (ie, from January 2010 to July 2011) counting from and coupling with the Earlier Period.

74.  Given that the Tribunal’s above conclusion (a) is clearly correct as the finding in the Earlier Decision is conclusive and binding on the applicants (as I think fairly accepted by Mr Fung),[11] I cannot see how it can be said that its conclusion (b) is wrong in law. It is clearly open to the Tribunal to conclude that, where the applicants had already been conclusively found not to be ordinary residents for the first seven years out of a nine and a half years period, they could not establish the necessary seven-year continuous ordinary residence with the remaining one and a half years.

75.  This complaint is in my view without merits.

76.  Another complaint made by Mr Fung in support of this second ground of judicial review is that the Tribunal took into account irrelevant matters in concluding (at paragraphs 44-49 of the Decision) that the applicants were bound by the Earlier Decision because there were no additional new material facts or evidence to justify allowing them to re-open the issues under the Earlier Period. Leading counsel’s arguments run as follows:

(1) The applicants correctly adduced evidence from the landlords of the family residential accommodation to demonstrate their habitual residence in Hong Kong: see paragraph 44(2) of the Decision.

(2) However, the Tribunal concluded at paragraph 48(a) of its Decision that such evidence “does not show any habitual residence as alleged. Evidence in this regard shows only that a room or portion of an area (about 60 sq ft) of a flat unit was leased to the [applicants] or their family for storage, and they would stay in such a tiny area when they came to Hong Kong… Further, the so-called leases were not that formal. In particular, [Ms Siu] did not receive regular rents from Mr Siu PS for a 60 sq ft room she leased to Mr Siu PS.”

(3) The Tribunal’s conclusion does not withstand scrutiny on an application for judicial review since the size of the applicants’ residence, whether or not a formal lease was entered into, and whether the landlord received regular rent is an irrelevant matter in determining the applicants’ ordinary residence. Testing the above proposition by applying the Tribunal’s logic, immigrants to Hong Kong who live rent-free in small flats would never be able to achieve permanent resident status in Hong Kong.

77.  With respect, I cannot accept these submissions.

78.  Paragraphs 44(2) and 48(a) of the Decision must be read in their proper context. For that purpose, it is necessary to set out paragraphs 42 to 48(a) as well as follows:

“VI. The Previous Appeals binding upon us

42. The underlying facts for the Previous Appeals were succinctly summarized in paragraph 8 of the determination dated 30 March 2011:

‘The underlying facts relevant to both appeals are that Mr. Siu PS (the father) is a businessman whose commercial activities basically relate to mining activities in Australia. He has set up a company in Hong Kong but most of his business activities are based in Australia. He had to be in Australia in person during the past years with little time left for Hong Kong. As the wife of Mr. Siu PS, WANG had to spend most of her time in Australia over the past years to take care of her husband’s personal life as well as assisting him in his business activities, particularly the financial aspects. Their 2 sons were full time students in Australia. As the mother she also had to be in Australia most of the time to take care of their livelihood. She acquired an Australian Passport just for convenience and was ready and willing to give it up for the sake of obtaining ROB in HK…’

43. In paragraph 15 of the Previous Appeals, the Tribunal also noted that ‘So far as WANG is concerned, the fact that the family home was only purchased in 2009 and that she had spent more time (still only 113 days) in HK tend to indicate that she had a change of heart to reside ordinarily in HK as her elder son had completed his education and moved to live in HK.’

44. In the Appellants’ Skeleton Submissions in response to our directions, Mr Chau listed in §3 of his Skeleton Submissions six pieces of purportedly new evidence not available in the Previous Appeals, namely:

(1) ‘Evidence given by the father of the family Siu Pui Shan and the elder son Siu Wainan, principle [sic] members of the family, show that they resided in Hong Kong and treat Hong Kong as their permanent residence, regardless of the fact that they spent most of their time overseas hence COR cannot rely on their whereabouts [to] reject the appellants’ VEPIC applications’;

(2) ‘Evidence given by the landlords of the family dwellings to prove habitual residence in Hong Kong throughout all the material times’;

(3) ‘The appellants’ own statements to prove their intentions to treat Hong Kong as their ordinary and permanent residence’;

(4) ‘Land search records to show the ownership of the six properties mentioned in the appellants’ statements…’;

(5) ‘Company search results and statutory documents of the three companies employed by the appellants to carry on business in Hong Kong’; and

(6) ‘Some information and print out extracted from the Hong Kong Government website evidencing current policy and understanding governing the meaning of “ordinarily resident” of Hong Kong as the respondent put it in his own words’.

For convenience, we shall refer to the above as ‘Evidence (1)’, ‘Evidence (2)’ and so on.

45. At the hearing, the above six pieces of evidence were fleshed by a bundle of documents prepared by the Appellants and the statements of respectively Mr Xiao WN, Mr Siu PS, Ms Siu Oi Fung, Ms Wang, Mr Siu WY and Mr Chan Siu Sun adopted as their evidence in examination-in-chief.

46. In our view, having considered the father’s and Mr Xiao WN’s evidence, Evidence (1) is nothing new in terms of substance. Their evidence is new only in the sense that they did not give evidence in the Previous Appeals.

47. Evidence (2) – (6) are ‘facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him’. We should treat such evidence with circumspection.

48. Further,

(a) Having heard the evidence, Evidence (2) does not show any habitual residence as alleged. Evidence in this regard shows only that a room or a portion of an area (about 60 sq ft) of a flat unit was leased to the Appellants or their family for storage, and they would stay in such a tiny area when they came to Hong Kong, for a short while each time as shown by their movement records produced by the ImmD. Further, the so-called leases were not that formal. In particular, Ms Siu Oi Fung (Mr Siu PS’s sister) did not receive regular rents from Mr Siu PS for a 60 sq ft room she leased to Mr Siu PS. In our view, the Appellants have failed to show habitual residence in those leased areas.

…”

79.  In this part of the Decision, the Tribunal was considering whether the matters raised by the applicants’ counsel amounted to new materials not available in the Earlier Appeals to justify the Tribunal to allow the applicants to reopen the finding in the Earlier Decision. One of these matters was “Evidence (2)” as identified at paragraph 44(2).

80.  The Tribunal then effectively went on to determine, among the others, at paragraph 48(a) that this purported new Evidence (2) did not support the issue of habitual residence as suggested by the applicants. In doing so, it looked at, among others, the size of the room said to be used by the applicants as a residence when they were in Hong Kong.

81.  Mr Fung now contends that the consideration of the size of the room by the Tribunal under this issue is “irrelevant” since, as a matter of logic, it cannot be right to suggest generally that immigrants to Hong Kong who live rent-free in small flats would never be able to achieve permanent resident status.

82.  However, reading paragraph 48(a) properly, the Tribunal did not only look at the size of and the rent-free nature of the flat in coming to the conclusion that there was no habitual residence. It had looked at those factors together with the other evidence in that case, such as the facts that there was no formal lease agreement, part of the room was used for storage and that the applicants had stayed there only for short intervals. As such, it cannot be taken to mean, as Mr Fung seeks to argue, that the Tribunal was suggesting generally that immigrants to Hong Kong who live rent-free in small flats would never be able to achieve permanent resident status. In the premises, the applicants’ second complaint is similarly without merits.

83.  I would therefore also dismiss the applicants’ second ground of judicial review.

D. CONCLUSION

84.  For the above reasons, the applicants have failed in all their grounds of judicial review. I would dismiss this application.

85.  I would further make an order nisi that the applicants shall pay the Commissioner’s costs, to be taxed if not agreed. The order shall become absolute 14 days from today, unless any of the parties applies to vary it by summons.