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)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Stock VP:

Introduction

1. The appellant was born in Hong Kong on 1 December 1996.  He has since lived with his mother in Hong Kong, subject to a few short breaks in the Philippines.  He is a Philippine national as is his mother.  She has at all material times been in Hong Kong working under a series of contracts as a foreign domestic helper.

2. The child’s father is a US citizen.  He is not a resident of Hong Kong and the mother and child have no contact with him, so his residential status is irrelevant to these proceedings.

3. In December 2006 the mother sought verification of her claim to be a Hong Kong permanent resident but her application was rejected.  She applied for a permanent identity card.  That application was rejected in 2008.  She appealed that decision to the Registration of Persons Tribunal.  Her appeal was dismissed on 31 May 2010.

4. In December 2006, she also sought verification on behalf of Joseph, the appellant, then aged 10 years, for verification of his claim to be a permanent resident.  That application was also rejected.  An application was nonetheless made for a permanent identity card which application was in turn rejected by the Commissioner of Registration on 16 October 2008.  Joseph’s appeal to the Tribunal was likewise rejected on 31 May 2010.

5. In December 2010 notices of application for leave to apply for judicial review were filed by the mother and by Joseph, through his mother as next friend; whereby it was sought to challenge the decisions of the Commissioner refusing to issue to each a permanent identity card and the decisions of the Tribunal rejecting the appeals.

6. Following the grant of leave, the applications were heard by Lam J. By a judgment dated 10 November 2011, he dismissed their applications.

7. This is an appeal from that judgment but only in so far as he found against the application mounted on behalf of Joseph.  Following the decision of the Court of Final Appeal in Vallejos v Commissioner of Registration[1], which upheld the constitutionality of section 2(4)(a)(vi) of the Immigration Ordinance, Cap 115 (‘the Ordinance’) which prevented persons not of Chinese nationality who were in Hong Kong for employment as foreign domestic helpers from acquiring Hong Kong permanent resident status, the mother abandoned her appeal and it has been dismissed.

The grounds of appeal

8. The Commissioner rejected the boy’s application for an identity card upon the same basis as the Director had decided against his claim for permanent resident status, namely, that he had been in breach of a condition of stay that he should not become a student at a school whilst in Hong Kong.  For the purpose of this appeal, that issue has fallen away although the Respondent reserves the right to revive it in the event that we were to remit the case to the Tribunal for fresh determination.  It has fallen away because the Tribunal did not rely on it for its decision.  The approach of both sides has been to concentrate this appeal upon the decision and reasoning of the Tribunal.

9. The Tribunal’s ‘Reasons for Decision’ dated 31 May 2010 is a composite document in that it addresses the appeals of both mother and son.  In relation to the mother, the Tribunal decided that because she was, throughout the seven year period applicable to her application, in Hong Kong as a foreign domestic helper, the effect of 2(4)(a)(vi) of the Ordinance[2] precluded her from establishing that she had, for any part of the seven years prior to her VEPIC[3] application, been ordinarily resident in Hong Kong[4].  The Tribunal further decided that even if that conclusion were not dictated by that statutory provision, the facts of her case were inimical to establishing either ordinary residence or that she had taken Hong Kong as her place of permanent residence immediately before her application.  The character of her stay here was heavily circumscribed by the conditions which attached to her status as a foreign domestic helper – for example, restrictions as to where she could lawfully reside and the requirement of having to return to her place of origin upon the termination of each contract.  It was not possible properly to characterise her stay as ordinary residence.  As for her claim that she had established Hong Kong as her sole place of permanent residence, the Tribunal concluded that she maintained strong ties with her home country, where several of her children resided and that she had not taken steps whereby Hong Kong had become her sole permanent home.

10. The Tribunal then addressed the position of the appellant.  The grounds of appeal, which arise from the reasons given in his regard, are somewhat discursive in style so, at our invitation, Ms Li SC for the appellant helpfully distilled the complaints.  There are two:

(1)  that the Tribunal erred in concluding that because the mother had not ordinarily resided in Hong Kong prior to the making of her application, and had not taken Hong Kong as her place of permanent residence, the appellant could, accordingly, not establish either condition precedent for entitlement to a permanent identity card; and

(2)  that the Tribunal erred in concluding that three short absences of the appellant from Hong Kong in the seven years prior to the application made on his behalf, each constituted a break in ordinary residence – assuming he was indeed ordinarily resident in Hong Kong – such that he could not establish seven years continuous ordinary residence prior to the application.

The facts

11. The questions whether an individual ordinarily resides in a particular jurisdiction and whether a person has taken a place as his or her permanent residence are highly fact-sensitive questions.  So it is usually necessary in such cases to address the facts in some detail.  For reasons which I later canvass, that necessity is not obviated in this case by the fact that the person in question is a minor whose mother’s claims as to ordinary and permanent residence have already been determined.

12. The mother is a Philippine national.  She has four children other than the appellant; they lived in the Philippines until, at a time after she made the VEPIC applications, two of them came to work in Hong Kong as foreign domestic helpers.  Her mother (the appellant’s grandmother) resides in the Philippines. 

13. The mother has worked in Hong Kong as a foreign domestic helper since July 1991.  In September 1992 her contract was terminated and there was some labour dispute in relation to that termination which was resolved.  In November 1992 she secured a contract with another employer, again as a foreign domestic helper.  That contract was terminated in October 1993.  In December1993 she signed a fresh contract with another employer; that contract was terminated in January 1995 and there was a labour case resulting from that termination.  In April 1995 she signed an employment contract as a foreign domestic helper with yet a further employer: but that contract was terminated in April 1996.  In between some of the terminations of contract and the commencement of a new one, she was granted permission to be in Hong Kong as a visitor to enable her to process change of employer applications.

14. In May 1996, she asked for an extension of stay to look for a new employer.  That application was refused but subsequently granted in order “to facilitate settlement of her labour case”[5]. Her status during the extension period was that of a visitor.

15. The appellant, Joseph, was born in Hong Kong in December1996.

16. Under a series of contracts, the mother then worked as a domestic helper for a Mr Sellars until 19 June 2003.  That was her fifth employment as a domestic helper in Hong Kong.

17. There is evidence of regular letters from Mr Sellars to the Director of Immigration seeking extensions of stay on the mother’s behalf and also seeking on occasion to sort out visa problems of the kind that do arise in such cases: for example, in January 1999 questioning why on his return to Hong Kong on 9 January 1999, accompanied by his mother, the boy was refused re-entry to Hong Kong “although he holds a Visitor Visa that does not expire until 19 June 1999.”  Mr Sellars was content to allow the boy to live with the mother in his household.

18. Letters from the mother to the Immigration Department in 1999, 2000 and 2001 intimated that she intended to send the boy back to the Philippines to school but that he was not ready to go back “home” yet; the reason given, on one occasion, was his tender age and on another that there was no-one in the Philippines to look after him[6].

19. In March 1997 Joseph was issued with a Philippine passport.  Permission to remain in Hong Kong was periodically given to him to remain as a visitor.  Up to and including the date upon which he was refused a permanent identity card, his immigration status remained that of a visitor.  He continued to live with his mother at whatever address she from time to time inhabited for the purpose of her employment.

20. In July 2003 the mother secured her sixth contract of employment in Hong Kong as a domestic helper and completed that contract in July 2005.  She wrote to the Director in July 2003 asking for a visa for the appellant, pointing out that he needed her care.  She understood, she said in the letter, that he would not undertake education whilst in Hong Kong.  Indeed it was a condition of the permission granted to him to land in Hong Kong as a visitor that he should not become a student at a school.  Be that as it may, as was subsequently revealed, he was at the date of that letter already attending a school in Discovery Bay.  Much later, that is to say in September 2010 – well after the VEPIC application – his status was changed from that of a visitor to that of a student (with a limit of stay until 14 May 2011) under the sponsorship of the person then employing the mother.

21. Between mid-2005 until April 2008, the mother worked for her seventh Hong Kong employer, Mr Willingham.  Whilst that was happening the boy was attending school despite continued assurances that he was not, an assurance repeated by implication in a letter dated 11 November 2006, one month before the VEPIC applications, when she wrote to the Immigration Department saying:

“My son Joseph [is] now applying visitor Visa in your section, although I know that he cannot study in Hong Kong under visitor’s status, he is in the age for going to school, so now I make a request for your Department’s Approval for him to go to school during the period he is approved to stay.”

22. On 20 December 2006 she submitted, on the boy’s behalf, the application for verification of eligibility for a permanent ID card,

23. Those are the facts which relate primarily to the mother’s own position.

24. As for the son, he was at all times relevant to the VEPIC application in Hong Kong as a visitor, generally for permitted periods of several months at a time; and at the end of each such period he was required to apply for a fresh visa and for fresh permission to remain.

25. From December 1998 to April 2007 he was out of Hong Kong on five occasions.  For the sake of completeness, I shall mention all five but the middle three are particularly relevant since they are the ones which occurred during the seven year period immediately prior to the VEPIC application and because the Tribunal found that during those three absences, the appellant had no right in law to be in Hong Kong and could not therefore be said to have been ordinarily resident during his absences, for which reason continuous ordinary residence for seven years prior to the application could not be established.

26. The five absences were:

(1)  in December 1998, when he went to the Philippines for 25 days, until 19 January 1999.

(2)  between late March 2000 and mid-April 2000 when he was away for 17 days.

(3)  between late February and early March 2001 when he was away for 9 days.

(4)  between the end of March 2004 and mid-April 2004 when he was away for 16 days; and

(5)  between late March and mid-April 2007 when he was away for 18 days.

27. There is a point raised upon appeal which was not raised before the Tribunal or before the judge below, namely, the suggested significance of multi-entry visas.  We see from the boy’s passport an entry that in January 2000 the appellant’s permission to remain as a visitor was extended until 19 June 2000.  For the relevant application to that end, he paid the standard fee of $135.  On the same date he was issued with a multi-entry visa endorsed with the words “Good for multiple journeys to Hong Kong valid for presentation on or before 19-06-00 provided travel document is valid” for which a separate fee was charged.  As we know, he left Hong Kong on 20 March 2000 and returned on 12 April 2000 and we see that upon re-entry he was permitted to remain until 19 June 2000; in other words to the date to which the January permission was granted.  Similar multi-journey visas were granted subsequently.

28. The multiple entry visas are said to be relevant in that, so the argument runs, their effect was to secure, before each relevant departure from Hong Kong, the prospect of re-entry to Hong Kong until the expiry of the limit of stay to which the appellant was at any material time subject.

The VEPIC Application

29. This application, signed by the mother on behalf of the child, declared that the child had been ordinarily resident in Hong Kong for a continuous period of not less than seven years and there is a separate declaration in normal form that Joseph had taken Hong Kong as his only place of permanent residence.  As to relevant information to support the contention that the child “has intended and taken action to make Hong Kong as his only place of permanent residence” the information is contained in an annexed letter which says:

“I have lived in Hong Kong now for nearly 16 years having come here in... 1991. … Joseph was born here in 1996. Ever since my son was born here … he had treated Hong Kong as his only place of permanent residence. He is now 10 years old and [has] lived in Hong Kong is her life. Over these years my son has adapted Hong Kong way of life. He has successfully completed year of 4 of [X] Preparatory School. Joseph in fact has no other nationality to speak of but English and Mandarin fluently. Joseph … has taken Hong Kong as his permanent place of residence. He has never lived such place else but Hong Kong. Although he has been issued a Filipino passport when he has travelled briefly to Philippines, he has treated as visitor. He has no right of abode there.”

Tribunal Affirmation

30. In an affirmation for the Tribunal proceedings the mother emphasised that:

(1)  Joseph had no home in the Philippines and spoke little Tagalog;

(2)  he had completely integrated into Hong Kong society where he has all his friends;

(3)  he speaks fluent English and some Mandarin and Cantonese, which he learns at school here;

(4)  he and she enjoyed a close relationship with her employer’s family and Joseph and her employer’s son treat each other like brothers;

(5)  he has two half-brothers working in Hong Kong at the time the affirmation was made;

(6)  Joseph is an active participant in sports at the local residents’ club, and is a keen football player; and

(7)  he had told his mother that he wishes to be a pilot when he grows up and she had enrolled him in a “Basics of Flying” course organised by Cathay Pacific.

The Tribunal’s determination

31. The Tribunal’s assessment of the boy’s position in relation to both ordinary residence and whether he had taken Hong Kong as his only place of permanent residence is a relatively brief assessment.

32. The Tribunal took note of the decision in In re P (GE)[7] a wardship case, in particular the answer to a question posed by Lord Denning:

“ …What is the ordinary residence of the child of tender years who cannot decide for himself where to live, let us say under the age of 16? So long as the father and mother are living together in the matrimonial home, the child’s ordinary residence is the home – and it is still his ordinary residence, even while he is away at boarding school. It is his base, from whence he goes out and to which he returns. When father and mother are at variance and living separate and apart and by arrangement the child resides in the house of one of them – then that home is his ordinary residence, even though the other parent has access and the child goes to see him from time to time. I do not see that a child’s ordinary residence, so found, can be changed by kidnapping him and taking him from his home, even if one of his parents is the kidnapper.”[8]

33. The Tribunal accepted that the nature of the proceedings in In re P was different from the proceedings with which it was concerned but nonetheless stated that it “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.”  The Tribunal went on:

“74. The Second Appellant [Joseph] in the material time lived together with the First Appellant because his father being a US citizen left the Second Appellant soon after he was born. The tribunal could not take his father’s ordinary residence as his. It was therefore sensible to take the Second Appellant’s ordinary residence and permanence issues as his mother’s.

75. The Tribunal had carefully considered the agreed facts, the documents annexed in the hearing bundle, supplemental hearing bundle and the summary of the case, the documents submitted by the appellants, the oral evidence of the First Appellant and all other evidences submitted by the parties.

76. As the Tribunal found that the First Appellant had not been ordinarily resided in Hong Kong for seven years immediately prior to making her VEPIC application (which was made one day later than the Second Appellant’s VEPIC application) and did not satisfy the permanence requirement with or without taking into consideration of section 2(4)(a)(vi) of the Ordinance, the Second Appellant therefore could not prove the Residence Requirement and the Permanency Requirement as required under Article 24 (2). In the circumstances, his Appeal has to be dismissed.” (Emphasis added)

34. Having thus disposed of the ordinary residence requirement, as well as the permanence requirement, by reference to the mother’s status, the Tribunal concluded that even if it had erred in “taking his mother’s ordinary residence and permanency as his”[9], the requirement to establish ordinary residence for a continuous period of not less than seven years prior to the VEPIC application was defeated by a combination of the periodic absences from Hong Kong and the terms of s 11(10) of the Ordinance which provides:

“(10) 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.”

The relevant category

35. If the appellant was to fit into a category of permanent resident prescribed by article 24 of the Basic Law, he could on the facts of this case only conceivably do so under article 24(2)(4)[10]. Although born in Hong Kong he could not succeed under article 24(2)(5)[11] because neither of his parents qualified under article 24(2)(4).[12]

36. By reason of paragraph 3(3)(b) of Schedule 1 to the Ordinance, a person born in Hong Kong and permitted by an immigration officer to remain is taken to have entered Hong Kong on a valid travel document; so the remaining conditions that fell for the appellant to satisfy were that he had ordinarily resided in Hong Kong for a continuous period of not less than seven years immediately preceding the making of his application[13] and that he had by the time of that application taken Hong Kong, and Hong Kong alone[14], as his place of permanent residence.

Eliding the status of mother and son

37. Unless the appellant can establish that by the time of the VEPIC application made on his behalf in December 2006, he had taken Hong Kong as his place of permanent residence, any question of ordinary residence and the effect of interruptions thereto become academic for the purpose of that application and of this appeal.  Lord Pannick QC gave notice that the Commissioner did not accept that a person in Hong Kong with the immigration status of visitor could establish that he was ordinarily resident here but he does not ask this Court to decide the appeal on that basis and, in the event, as with the judge below, I have not found it necessary to determine that issue.  That is because it is, in my judgment, for reasons I will provide, as clear as can be that the mother failed to establish that her son, through her efforts, had taken Hong Kong as his place of permanent residence.

38. Ms Li’s complaint is that the Tribunal failed to address the son’s position on its own facts and merits.  The Reasons, she says, ignore the reality that the mother’s circumstances were not the son’s and that she could on his behalf establish a future and status different from hers.

39. The effect of her submissions as to the appellant’s claim to permanent resident status may, I believe, accurately be summarised thus: the mother’s ability to establish ordinary residence and to take Hong Kong as her permanent home was stultified by the qualitative aspects of her residence in Hong Kong, aspects which were the product of the highly restrictive conditions under which she was permitted to enter and remain in Hong Kong and by the terms of s 2(4)(a)(vi) of the Ordinance; aspects and terms recently analysed in Vallejos v Commissioner of Registration & Another[15]. However, these were not constraints visited upon the child and although the status and circumstances of the custodian parent are, Ms Li properly concedes, clearly relevant, they are not necessarily determinative.  She also accepts that it is not realistic in the case of a child aged 10 years to test matters by reference to the child’s own intention, for a child of that age is not in a position to make his or her own decision as to where to live.  The better and appropriate question, she argues, is what is the parent’s intention for the child and although normally a parent in whose care and control a 10-year-old child resides takes it as read that the child’s permanent home is the same as that of the parent, there may well be peculiar circumstances – illustrated by this case – by reason of which a wise and loving parent will plan a better future for the child than that available to the parent, even if that plan contemplates the possibility of the two living in different countries.  It is the failure of the Tribunal to recognise such a possibility that is the suggested flaw in its approach.

40. Lord Pannick does not accept that the Tribunal elided the son’s position with that of the mother, that is to say, that it assumed that the one necessarily followed the other; although he says that on the facts of this case, it would matter not if the Tribunal so assumed since the common sense of the case was that the mother’s plans and the precariousness of her residential position dictated the result at which the Tribunal arrived.

41. Lam J was of the opinion that whilst a Tribunal was duty bound to examine the facts peculiar to each individual, thereby implying, I believe, that the conclusion in relation to a child did not inevitably follow the conclusion in relation to the parent, it was nonetheless the position that “in a case like the present where the mother cannot satisfy this aspect[16] of the permanence requirement, it is unlikely that her child could satisfy the same.”  But the judge also concluded that the Tribunal had not in fact adopted the inflexible approach asserted by the applicant and had indeed had regard to the evidence as it separately affected the child, though viewed against the background of the mother’s residence status[17].

42. I read the Tribunal’s approach as rigid rather than flexible.  In other words, it seems to me that the Tribunal, having stated that the boy was not capable of forming an independent intention – a statement with which I agree – then said that the son could not satisfy the continuous residence and the permanence requirements precisely because his mother failed on each respective count.  It said so in terms:

“As the Tribunal found that the [mother] had not been ordinarily resided in Hong Kong for 7 years immediately prior to making her VEPIC application … and did not satisfy the Permanence Requirement … the [son] could not therefore prove the Residence requirement and the Permanence Requirement as required by Article 24(2). In the circumstances his Appeal has to be dismissed.” (Emphasis added)

And this followed from adoption of the passage in In re P that a child’s ordinary residence was that of the parents and also from the Tribunal’s statement that it was “sensible to take the [son’s] ordinary residence and permanence issues as his mother’s”.

43. Whilst it is, as a matter of common sense, imperative in such cases to view an application on behalf of a child in the light of the parent’s place of residence and the parent’s plans and whilst in the vast majority of cases the child’s position[18] will, in truth, follow that of the parent[19] there may, it seems to me, be rare cases, where compelling circumstances drive a parent to decide that it is in the child’s best interests to put in place firm, stable and caring arrangements which may, once those arrangements are operative, mean that parent and child have different permanent homes.  Where a custodian parent asserts that despite his or her inability to establish Hong Kong as his or her permanent home, he or she has made Hong Kong the child’s permanent home, the burden of showing which is clearly on that parent, the immigration body called upon to assess such an assertion is duty bound to address that assertion for what it is and to decide whether the parent has indeed established Hong Kong as the child’s place of sole permanent residence.  It follows, in my view, that upon each application on behalf of a child where the status of the custodian parent is, or may be determined as, inconsonant with that asserted for the child, the same question must be asked; which is to require no more than a recognition that the status of one does not necessarily follow the other, unusual though divergence in truth may be.

44. Authority in other contexts is not, in my opinion, of much assistance to the present exercise.  So, for example, Lord Pannick took us to In re J (A Minor)(Abduction)[20] for a statement by the House of Lords that : “where a child of J’s age[21] is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers”[22], as indicative of the general approach of the courts.  The issue in that case was whether there had been a wrongful removal of the child from one jurisdiction to another; wrongful, that is, within the meaning of article 3 of the 1988 Convention on Civil Aspects of International Child Abduction, which in turn required determination of the habitual residence of the child immediately prior to the impugned removal.

45. It is particularly important for the courts in the context of Hague Convention proceedings following an abduction to alight upon a place of habitual residence if that is reasonably possible “otherwise [the child] cannot be protected from abduction by a parent from the country where he was last residing”[23]; so it should not be assumed – and Lord Pannick does not invite us to assume – from the passage cited above from In re J that the place of permanent residence for the purpose of para 2(d) of Schedule 1 necessarily follows that of the parent or parents with whom the child applicant resides, regardless of the age of the minor and of such concrete measures as the parent or parents have put in place for that child.

46. In this case, what the Tribunal did not do was to ask the question whether, assuming that ordinary residence of the boy had been established, it had been shown that, whatever her own position and future, the mother had, on her son’s behalf, secured Hong Kong as her son’s sole place of permanent residence.  It seems to me, that it proceeded on the basis that her status automatically dictated his.  I do not think that that was the correct approach, though whether that error was in this case such as to warrant reconsideration by the Tribunal, is a matter to which I will later turn.

Turning intention into reality

47. The seminal analysis of the requirement in article 24(2)(4) of the Basic Law that the person shall have “taken Hong Kong as [his] place of permanent residence”, is that of Ribeiro PJ in Prem Singh v Director of Immigration[24].

48. In that judgment, Ribeiro PJ said that :

“64.   The permanence requirement makes it necessary for the applicant to satisfy the Director both that he intends to establish a 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.

65.    …

66.    The permanence requirement in 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. … ” (Emphasis added)

49. What steps must have been taken to translate intention into reality is not a matter for prescription.  It is, rather, a matter to be assessed objectively and with common sense having regard to the particular applicant and all the relevant circumstances, which will, of course, vary from case to case.  There are non-exclusive indicia referred to in paragraph 3(1)(a)(i) of Schedule 1 to the Ordinance[25], which are appropriate to an adult applicant, but in the case of those who are youths or children on whose behalf article 24(2)(4) permanent residence is asserted, the sensible and fair decision maker will look for such clear, genuine and significant hallmarks of true permanence as are germane to the particular applicant.

50. It is neither possible nor wise to say what steps for a ten year old may in truth turn intention into reality in a situation where the parent cannot establish that status for himself or herself.  By virtue of paragraph 3(2) of Schedule 1, any applicant under the age of 21 years who asserts that he has met the conditions for permanent residence required by article 24(2)(4) as reflected by paragraph 2(d) of Schedule 1, may only satisfy the requirement of a declaration to that effect if one of his parents or a legal guardian makes the declaration[26]. So the statutory regime embraces a wide age range of young ordinary residents who may be eligible for permanent residence status under article 24 (2)(4) but the success of whose applications for that status depends upon the condition precedent of a declaration by a parent or guardian that the applicant child (or young adult) has taken Hong Kong as his or her place of permanent residence.  That age range in itself demonstrates how fact-sensitive a proper assessment must be.

51. So, for example, a 20-year-old may in certain circumstances be in a position truthfully to state that he has formed an intention to take Hong Kong as his place of permanent residence, despite the fact that this is not the place of permanent residence or even of ordinary residence of his parents.  This may, for instance, have been the ordinary residence of his parents who have now retired to live in their country of origin; whereas he has stayed and either made a home and career for himself or, if he has not the means to have done so, his parents may have secured a stable future for him here.  In such a case, the decision maker will rightly place weight on the intention of the youth himself in a way which, correctly, he would not do in the case of the ten year old; and place less weight on the status of the parents and of their own plans than he would if the applicant were much younger.

52. For reasons given, I am not comfortable with the apparent rigidity of the Tribunal’s approach and I hold that in adopting that approach and in not asking the question which I have suggested to be the appropriate question, the Tribunal misdirected itself.

53. If that be correct, the question is whether the decision of the Tribunal should be quashed and the matter remitted to the tribunal for reconsideration.

54. I am, in answer to that question, satisfied that the mother came nowhere near establishing that the appellant, through her, had taken Hong Kong as his permanent place of residence.

55. Looking to the date upon which the appellant’s VEPIC application was filed, there is a question one is bound to pose, as at that date, to which there could be a highly limited range of truthful realistic answers each one of which is determinative of the case.  The question is this: what were the mother’s proposals for her son in the event that her contract of employment was terminated so that she had to return to the Philippines?

56. If put to the mother, the only truthful answer would be either (1) I will take him back with me to the Philippines; or (2) I do not yet know but I hope that either my present employer or someone else will agree to provide him with accommodation and support until such time as he completes his education in Hong Kong and is able to support himself.

57. These answers, which reflect the reality of the situation, could not conceivably take the position of the appellant beyond that of ordinary residence (even assuming in his favour that he was ordinarily resident) at the date of the application.  And it is trite, and emphasised by Ribeiro PJ in Prem Singh[27], that “the permanence requirement … demands more than ordinary residence.”  It requires an intention to establish Hong Kong as a permanent home plus action already taken to make it so.

58. Ms Li properly conceded that there was nothing in the record of the proceedings before the Tribunal to show that the mother had taken any steps to secure the son’s ability to stay in Hong Kong in the event that she lost her employment.  That is hardly surprising because it seems to me that there was nothing in reality that she could do to that end.  The fact that the boy was at school in Hong Kong and had acquired his sole circle of friends here makes the prospect of his return to the Philippines an unhappy one for him, no doubt; but it is the fact that his mother’s residential tenure in Hong Kong was always a precarious one as evidenced in her case not merely by the nature of and conditions attached to her employment at any given time but by her individual employment history.  By the time of her VEPIC application on behalf of the appellant in December 2006, she was with her seventh Hong Kong employer and there had been a number of labour disputes, the relevant circumstances of which disputes are not before us and are not germane; but it is all illustrative of the fragile foundation upon which the mother sought to establish her son’s status as a permanent resident.

59. The letter in support of the VEPIC application says that the son has treated Hong Kong his only place of permanent residence.  That phraseology by the mother is perfectly understandable in that at that stage the boy no doubt recognised Hong Kong as the place where he normally lived and hoped to go on living.  But objectively assessed, the facts on the ground and the law were such as to render unsupportable the contention that he had taken Hong Kong as his permanent place of residence.  This was the finding of Lam J who concluded[28] that there had been shown no concrete steps taken by the mother on the appellant’s behalf to satisfy the permanence requirement and in that conclusion he was, in my respectful opinion, obviously correct.

60. Accordingly, in my judgment, a reconsideration by the Tribunal is destined to be of no avail to the applicant.

61. On the basis alone that the appellant was not in a position to establish that he had taken Hong Kong as his place of permanent residence, I would dismiss the appeal.

Ordinary residence and the three visits

62. Section 2(6) of the Ordinance provides that:

“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 reasons, 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).”

63. Ms Li argues that the appellant’s three absences in the Philippines during the period with which we are concerned were temporary absences of an ordinary resident and that accordingly, by reason of this statutory provision, the Tribunal and the judge below erred in treating them as breaking continuous residence for the purpose of article 24(2)(4) of the Basic Law and paragraph 2(d) of Schedule 1 to the Ordinance.

64. The difficulty in the way of Ms Li’s submission, so it appears to me, is that section 2(6) presupposes that the person who is temporarily absent is a resident of Hong Kong who has despite his temporary absence permission to be here during that absence.  That was not the appellant’s position.  Each time he was permitted entry into Hong Kong he was permitted entry as a mere visitor for a limited number of days and that permission expired at the end of each such period; or, if he departed before the end of such period, on the date of that departure – see section 11(10) of the Ordinance:

“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.”

65. The matter may be tested by contemplating the only correct answer to the key question to be posed on any one of the three relevant occasions during which the appellant was out of Hong Kong: “Are you a person who has current permission to reside in Hong Kong?” Putting aside for the moment the multiple entry visa issue, the correct answer in law would have had to be “No”.  And if a person has at a given time no permission in law to reside in a place, he can hardly, at that time, be ordinarily resident there.

66. Ms Li has drawn our attention to two cases in which the courts have arrived at the same conclusion, albeit in the context of facts which differ in their detail from the facts of this case.  They are Sun Jie v Registration of Persons Tribunal[29] and Commissioner of Registration v Registration of Persons Tribunal[30].  Her argument is that the cases turn on their facts which are distinguishable from the facts of this case but I do not think that differences in the facts undermine the core theme of each decision, which is conveniently encapsulated by Rogers VP at the Court of Appeal stage in Sun Jie, namely, 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.”[31]

Multiple entry visas

67. The multiple entry visa argument was raised neither before the Tribunal nor before Lam J, for which reason no evidence was filed by the Respondent in the judicial review application as to the circumstances in which and the purpose for which multiple entry visas are granted by the Director.  It was with some reticence, therefore, that we entertained the submission at all but in the event I am satisfied that we may properly deal with the issue, though not previously raised.

68. The argument arises from the fact that when the applicant left Hong Kong on each of the three occasions in question he was in possession of an extant multiple entry visa, valid on its face until a date beyond the date of departure and re-entry and which date coincided with the expiry date of the permission to remain stamped on the appellant’s passport.  So, to repeat the example to which I have referred above[32], we see on the appellant’s passport a stamp dated, it seems, 5 January 2000: “VISITOR-Permission to remain extended until 19-06-00”.  There is also a receipt for a fee of $135.  There is then another stamp which says “Good for Multiple journeys to Hong Kong valid for presentation on or before 19-06-00” and another receipt for a further $135.  We know that in late March 2000 the appellant left Hong Kong and returned on 12 April 2000.  There is a stamp on his passport dated 12 April 2000 which says: “Visitor-permitted to remain until” and then in manuscript “19-06-2000.”

69. The effect of the argument is encapsulated in the written submissions for the appellant, that: “ On each of the relevant occasions when the appellant left Hong Kong, he left only after securing beforehand the prospect of re-entry through the Immigration Department granting him multiple re-entry visas on visitor condition coterminous with the limit of stay he was then enjoying.  Each time he took a journey abroad and returned to Hong Kong his status had remained the same … the Judge failed to appreciate the manifest intent and substance of the arrangement for the multiple journey re-entry visas of continuing the unexpired limit of stay on visitor condition (繼續訪客逗留至) so long as the appellant presents himself back in [Hong Kong] before the expiry of that limit of stay, and to give effect to it.”

70. With respect, I cannot agree.  There is presented to us no basis in law or in fact from which to conclude that the grant of a visa, whether a single or a multiple entry visa, of itself secures entry to this jurisdiction when the holder of the visa presents himself at immigration control.

71. That the multiple journey visas did not confer permission to enter or remain is self-evident on their face, especially when compared with the separate entries made on the very same day as their issue.  One entry provided “permission to remain”, whereas the visa entry said no more as to its purpose than “Good for presentation”.  And if one asks the questions: “Presentation to whom and for what purpose?”, the correct answer can only be: “Presentation to the immigration officer when I, the holder of this visa, seek his or her permission to enter or remain.”  That much is made the more obvious by the fact that upon each occasion of re-entry there is yet a further stamp evidencing a fresh permission to remain, a decision which would hardly be required if the visa itself conferred that permission.

72. Why then the need for a visa and why the grant of a multiple entry visa?

73. A visa is required in order to render a travel document a valid travel document for the purposes of the Ordinance – which purposes must include the requirement of possession of a valid travel document upon arrival in Hong Kong – save where the Director of Immigration has exempted a person or a class or description of persons from that requirement.  That is the effect of section 61 of the Ordinance[33].

74. It is common ground that the appellant was not an exempt person.

75. If, as is clearly the case, a single entry visa confers no right of entry, there can be no rational basis for suggesting that such a right is conferred by a multiple entry visa.

76. A visa of the type we see in this case reflects no more than a preliminary filtering process which is likely to vary or be dispensed with according to current policy or individual-specific considerations; and without which the travel document of the holder is not a valid travel document.  That is as far as it goes.  There is no evidence before us to answer the question “Why the grant of a multiple entry visa, as opposed to a single entry visa?” but one can, I believe, safely infer that such a visa is granted to a regular visitor to save that visitor the inconvenience and the expense of applying for a visa prior to each visit.

77. There is a further indicator of the flaw in the argument advanced by Ms Li. It is that a visa, especially a multiple entry visa, is often granted well in advance of the holder’s arrival at the place to which he seeks entry.  If a multiple entry visa is intended to confer some right of entry at a future date, that presupposes that the immigration authorities have, by the grant of that visa, precluded themselves from denying entry regardless of intervening circumstances and events; which is, it seems to me, entirely contrary to the sense and grain of proper immigration control.

78. Indeed, I note that the written submissions themselves suggest that the appellant by reason of the multiple entry visa secured ‘the prospect’ of re-entry.  That may be so, but only in the sense of a hope arising from fulfillment of but one of the conditions precedent to entry.

Conclusion

79. For the reasons I have provided, I would dismiss the appeal.

Hon Fok JA:

80. The Basic Law envisages that non-Chinese nationals may acquire the status of permanent residents of the HKSAR.  To do so, they must satisfy the three conditions specified in BL24(2)(4).  Those conditions are identified and discussed in Ribeiro PJ’s judgment in Prem Singh v Director of Immigration (2003) 6 HKCFAR 26 (see §46 et seq.).

81. The Basic Law also envisages that children of non-Chinese nationals may also become permanent residents of the HKSAR.  This is clear from BL24(2)(5) in respect of which the following points may be noted.

(1)  BL24(2)(5) provides that persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the HKSAR shall be permanent residents.

(2)  There is nothing to suggest that the BL24(2)(4) conditions apply to such a child.

(3)  Instead, the conditions for qualification as a permanent resident under BL24(2)(5) would appear to be limited to two conditions: first, birth in Hong Kong; and second, birth to a person who is a permanent resident under BL24(2)(4). 

(4)  For this category there is no controversy about whether the parent has to have been a permanent resident under BL24(2)(4) at the time of the child’s birth because paragraph 2(e) of Schedule 1 to the Immigration Ordinance provides that the parent could have acquired permanent resident status either at the time of the child’s birth or at any later time before he attains 21 years of age.  Self-evidently, the parent must, however, have acquired the status by the time of the child’s application for VEPIC.

82. This appeal is not, however, concerned with BL24(2)(5) because it is common ground that the appellant’s mother, whose residence in Hong Kong has at all material times not been ordinary residence (see Vallejos v Commissioner for Registration, unrep., FACV 19/2012, 25.3.13), is not and was not a permanent resident within BL24(2)(4) when the appellant made his VEPIC application.

83. Where a child is born to a non-Chinese national who is unable to qualify as a permanent resident under BL24(2)(4), there is no reason in principle why that child may not qualify as a permanent resident in his own right under BL24(2)(4).

(1)  Schedule 1 to the Immigration Ordinance, in addressing the establishment of permanent residence under paragraph 2(d) (equivalent to BL24(2)(4)), does at least implicitly contemplate the possibility of a child applying for permanent resident status in his own right.

(2)  This is clear from the fact that paragraph 3(3)(b) contemplates that, because he was born here, a person might apply for permanent resident status under that category without ever having entered Hong Kong on a valid travel document.

(3)  Thus, paragraph 3(3)(b) addresses the entry requirement of the Prem Singh conditions and provides that, for the purposes of paragraph 2(d), a person is taken to have entered Hong Kong on a valid travel document if he was born in Hong Kong and was permitted to remain in Hong Kong by an immigration officer or an immigration assistant.

(4)  This provision would obviously enable a non-Chinese national child born in Hong Kong to demonstrate satisfaction of the entry requirement.

(5)  But equally there is nothing to suggest that paragraph 3(3)(b) applies exclusively to a child applicant and it is a provision which might be relied upon by an adult who, for reasons of his own, chose only to apply to establish permanent resident status after reaching the age of 21.

84. A feature of BL24(2)(5) is that it may be relied upon by the child of a permanent resident under BL24(2)(4) up to the age of 21.  This is perhaps curious given that the legal age of majority in Hong Kong – including the qualifying age for the right to vote conferred by BL26 – is otherwise 18 but can perhaps be explained on the basis that the Basic Law chose to extend the qualifying age for children born in Hong Kong of non-Chinese nationals to acquire permanent resident status under BL24(2)(5) so as more comprehensively to cover children of such non-Chinese nationals still dependant on their parents, for example by reason of being in full-time education.

85. This curiosity is reflected in paragraph 3(1)(b) which provides that, for the purposes of establishing permanent residence under paragraph 2(d) (i.e. BL24(2)(4)), a person is required to make a declaration in the form stipulated by the Director that he has taken Hong Kong as his place of permanent residence and that, for a person under the age of 21 years, the declaration must be made by one of his parents or by a legal guardian. Whilst the reference to the age of 21 years reflects the age stipulated in BL24(2)(5), it is not immediately clear why it should do so because: first, the permanence requirement, to which the declaration is directed, is not one of the express conditions of BL24(2)(5); and secondly, paragraph 3(1)(b) is not in any event addressing the establishment of permanent residence under BL24(2)(5).  On the other hand, the permanence requirement is a requirement for establishing permanent residence under BL24(2)(4) and so, when a child or young adult (i.e. a person between the ages of 18 and 21) is seeking to establish permanent residence under that category, paragraph 3(1)(b) requires that the declaration to satisfy that requirement must be made by one of his parents or by a legal guardian. 

86. In the present case, the appellant was under the age of 18 when his VEPIC application was made and so no question arises as to the propriety of that requirement.  However, it may be necessary to leave open the question of whether, in all cases, the declaration on behalf of a young adult applying to establish permanent residence under BL24(2)(4) must always be made by one of his parents or a legal guardian.  Consider, for example, a young adult whose parents were both deceased and who did not have a legal guardian.  It is not immediately apparent why such a young adult should not be able to make the declaration for the purposes of a VEPIC application on his own behalf. But, as I have said, that question does not arise here.

87. In this context, I would add finally that the particular nature of BL24(2)(5), as a different category to BL24(2)(4), is reflected by the provisions of paragraph 4 of Schedule 1. 

(1)  First, although included under the heading “Establishing permanent residence under paragraph 2(e)”, paragraph 4(1) of Schedule 1 stipulates that a person who has qualified for permanent residence under paragraph 2(e) (i.e. BL24(2)(5)) will cease to be a permanent resident of the HKSAR upon attaining the age of 21 years.  It then goes on to provide that such a person may apply to the director for the status of a permanent resident of the HKSAR under paragraph 2(d) at any time.  That, of course, will then bring the conditions discussed in Prem Singh into play and the applicant, being over the age of 21, will clearly be making his VEPIC application under BL24(2)(4) on his own behalf and will make the necessary declaration himself. 

(2)  Further, paragraph 4(2) provides that s.2AAA of the Ordinance applies in relation to a person who ceases to be a permanent resident under paragraph 4.  The extension of s.2AAA to such a person is to secure for such a former permanent resident the right to land as well as the rights not to have any condition of stay imposed and not to be made the subject of a removal order.

88. It is precisely because a child may make his own application for permanent resident status under BL24(2)(4) – and because such an independent application was made by the appellant in the present case – that it is important for the Director or Commissioner (and the Tribunal on any appeal from the Commissioner) not to elide the position of parent and child and to deal separately with the child’s own claim to satisfy the three conditions under BL24(2)(4). 

89. I have had the benefit of reading in draft the judgment of Stock VP and I respectfully agree with him (see §42 supra) that, for the reasons he gives, the Tribunal in the present case did adopt the rigid approach of equating the appellant’s position with that of his mother.

90. However, for the reasons given by Stock VP, I also agree (see §60 supra) that there would be no purpose to be served in remitting the matter for a reconsideration by the Tribunal.  I would simply add the following observations on the appellant’s inability to satisfy the permanence requirement here.

91. The permanence requirement under BL24(2)(4) was addressed by Ribeiro PJ in his judgment in Prem Singh at §§60 to 66.  It is clear from those paragraphs that the permanence requirement imports both a subjective element as to intention and an objective element as to action taken to demonstrate having taken Hong Kong, and Hong Kong alone, as a place of permanent residence.  It is important to note that Ribeiro PJ accepted (§61) that:

“… the notion of taking Hong Kong as a person’s place of permanent residence imports the quality of a past, present and future commitment to establishing and maintaining a permanent residence in Hong Kong.”

And, in §64, Ribeiro PJ held that an applicant must satisfy the Director that:

“… he intends to establish his permanent home in Hong Kong and that he has taken concrete steps to do so.”

92. In the case of a child applicant under BL24(2)(5), because the permanence requirement is not expressed to be one of the conditions to be satisfied, it would not appear to be necessary for the child to satisfy the Director of these matters.  A child applicant under BL24(2)(4), on the other hand, to whom the permanence requirement applies, must do so.  In the case of a 10 year old child, such as the appellant in this case, it is likely to be the norm that his intentions and the actions that might be relied upon as demonstrating having taken Hong Kong as a permanent home will be the intentions and actions of his parent or legal guardian.  That is so as a matter of common sense rather than as a matter of law because a 10 year old child will more than likely be living with and dependent upon his parent or legal guardian for his living arrangements and support.  But whilst that is likely to be the norm, it does not necessarily follow that it will always be so and there may be exceptional cases where the child will be able to form his own intention or may even be in a position himself to take the actions necessary to demonstrate having taken Hong Kong as his place of permanent residence.

93. Ribeiro PJ did not suggest what “concrete steps” might be sufficient to satisfy the Director that an applicant has taken Hong Kong as his place of permanent residence.  There is no doubt that this was deliberate.  It would not be sensible for any court to seek to lay down a list of such steps for otherwise such a list might be interpreted as a definitive guide to the objective facts necessary to demonstrate the fact of having taken Hong Kong as a place of permanent residence.  There is nothing in the Basic Law or Immigration Ordinance suggesting that the relevant facts required to be demonstrated can be definitively stated.  Instead, what will be sufficient in any given case must depend on the individual facts of that case.

94. This is reflected in paragraph 3(1)(a) of Schedule 1 to the Ordinance which requires that, for the purposes of paragraph 2(d), an applicant is required to furnish information that the Director reasonably requires to satisfy him that the person has taken Hong Kong as his place of permanent residence.  The paragraph goes on to provide that the information may include: (i) whether he has habitual residence in Hong Kong; (ii) whether the principal members of his family are in Hong Kong; (iii) whether he has a reasonable means of income to support himself and his family; and (iv) whether he has paid his taxes in accordance with the law.

95. Each of those matters non-exhaustively listed in paragraph 3(1)(a) is a matter of generality which goes to the question of whether a particular applicant has taken sufficient steps with a view to residing in Hong Kong permanently or indefinitely, rather than for a limited period.  There may be more specific matters of fact which could demonstrate that fact.  An obvious example is the purchase of a property in which to live.  Another example would be securing employment providing an income on which to live.  Given the many and varied ways in which an individual might demonstrate the establishment of roots in Hong Kong so as to demonstrate having taken Hong Kong as a permanent home and an ability to continue living in Hong Kong, there is little purpose to be served in identifying other hypothetical examples of possible concrete steps and, it should be stressed, reference to these examples is not intended to suggest that these factors are necessarily determinative.

96. There was a suggestion in the course of argument that looking for factors such as the ownership of the property in Hong Kong is somehow discriminatory in favour of persons of means.  There is nothing to indicate any such bias on the part of the Director in the evidence.  However, as a matter of plain common sense, it is indisputably a relevant fact to look to see if an applicant for permanent residence might have either purchased a property or have the wherewithal to continue renting a property in which to live in Hong Kong.  That does not mean that a person who does not own a property or who is not financially well-off cannot demonstrate having taken the necessary concrete steps to show that he has taken Hong Kong as his place of permanent residence.

97. Nevertheless, as paragraph 3(1)(a)(iii) shows, having a reasonable means of income to support oneself is a material piece of information on which the Director will reach a conclusion on the question of whether the permanence requirement has been satisfied in any particular case.  It is a fact of life that the cost of living in Hong Kong is relatively high.  That is simply a reflection of the economic conditions of Hong Kong which in turn may contribute to its being an attractive place for non-Chinese nationals to come to live.  If the home in which an applicant resides and the income on which he lives is provided only by reason of a parent’s employment, it is relevant to inquire as to his ability to continue to reside in Hong Kong in the event that the parent’s employment were to come to an end. 

98. Thus, turning to the facts of the present case, it is undoubtedly a material fact that the appellant’s mother, not being a person who could satisfy the Prem Singh conditions herself, is present in Hong Kong on a non-permanent basis and in circumstances in which her ability to stay indefinitely in Hong Kong is, for the reasons explained in Vallejos at §§8-14, precarious.  It would therefore be a highly material question for the Director to ask himself, when considering whether the appellant satisfied the permanence requirement, what would happen to the appellant if his mother were to cease to be employed as an FDH in Hong Kong and have to return to the Philippines?

99. This does not mean that the appellant’s mother could not, independently of her own situation, make arrangements by way of concrete steps on behalf of the appellant to demonstrate that he had taken Hong Kong as his place of permanent residence.  But, as Ms Gladys Li SC candidly accepted, there is nothing in the record to show that the mother had done anything to secure the appellant’s ability to stay in Hong Kong even if the mother ceased to be employed in Hong Kong.  That being the case, it follows that the appellant could not demonstrate that he had satisfied the permanence requirement.

100. Finally, as regards the interruption of the appellant’s ordinary residence by reason of his absences from Hong Kong during the seven years immediately prior to his VEPIC application, for the reasons given by Stock VP, I agree that the appellant is not able to rely on s.2(6) of the Ordinance (see §§64 to 66 supra) and that the multiple entry visa argument does not assist the appellant (see §70 supra).

101. I, too, would therefore dismiss the appeal.

Hon Barma JA:

102. I have had the advantage of reading in draft the judgments of Stock VP and Fok JA, with both of which I agree.  For the reasons they give, I too would dismiss this appeal.

Hon Stock VP:

103. Accordingly, the appeal is dismissed.  There will be an order nisi that the costs of the appeal be to the respondent to be taxed, if not agreed and that the appellant’s costs be taxed in accordance with the Legal Aid Regulations.