吳純純 v. 入境事務處處長

HCAL 93/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 93 OF 2007

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J U D G M E N T

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1.  In this judicial review application, the applicant seeks to quash a decision not to prepare and issue to her a non-permanent Hong Kong Identity Card (“the Decision”). The Decision was contained in a letter dated 21 May 2007 from the Director of Immigration (“the Director”) to the applicant’s solicitors.

The facts

2.  The applicant was born in Longwu (龍湖) of Fukien (福建) Province, China on 24 December 1984.

3.  On 6 February 1997, the applicant’s father came to Hong Kong from mainland China on the strength of a One-Way Chinese Exit Permit (“OWCEP”) no. 0469734 in the name of 吳文演 (Ng Man Yin).  He was given permission to land and remain in Hong Kong until 6 February 2004.

4.  For the reason of coming to Hong Kong as a dependant of her father, the applicant applied for and was issued with an OWCEP no. 0597623 on 24 December 1998.  On 30 January 1999, the applicant came to Hong Kong on the strength of her OWCEP. She was permitted by the Director to remain in Hong Kong until 30 January 2006.

5.  On 5 February 1999, the applicant applied for a juvenile Hong Kong Identity Card (“HKIC”) and a Document of Identity for Visa Purpose.  The applicant was issued with a non-permanent juvenile HKIC.

6.  By letters dated 1 and 6 December 1999, the Bureau of Entry and Exit Administration (“BEEA”) in mainland China informed the Director that the applicant’s father obtained his OWCEP by unlawful means and he was not qualified to settle in Hong Kong.  In their subsequent letters to the Director, including letters dated 14 June, 18 July and 5 December 2002, 8 May 2003 and 23 May 2005, the BEEA elaborated that the OWCEP of the applicant’s father was issued as a result of false transfer of residence and household registration and also bribery of an official of the Nanping City Public Security Bureau (南平市公安局).  Further, in BEEA’s letter dated 14 June 2002, the Director was informed that the OWCEP of the applicant’s father had been revoked or invalidated.  In its letter dated 18 July 2002, BEEA further informed the Director that as the applicant’s OWCEP was unlawfully obtained, it was also revoked or invalidated.

7.  On 16 September 2002, a removal order was made against the applicant’s father.  This was withdrawn on 6 April 2005, after the Court of Final Appeal handed down the decision in Director of Immigration v. Lau Fong (2004) 7 HKCFAR 56. The Director had however reserved his position to issue another removal order. It is also not in dispute that the HKIC that was returned to the applicant’s father was subsequently declared invalid by the Commissioner for Registration of Persons.

8.  The applicant became 18 years old on 24 December 2002. On 24 January 2003, she surrendered her juvenile HKIC and applied for the issue of an adult HKIC. On 28 February 2003, the applicant was intercepted by immigration officers and detained. She was subsequently released on recognizance.

9.  0n 20 May 2003, the Director issued a removal order against the applicant on the ground that the permission granted to her to remain in Hong Kong was rendered null and void by reason of the fact that her OWCEP was unlawfully obtained. The applicant lodged an appeal against it on 14 June 2003. Upon the request of the applicant’s solicitors, the Director agreed to reconsider the removal order against her, as in the case of her father. By letter dated 27 September 2006, the Director informed the applicant that the removal order against her had been withdrawn, but consideration was being given to vitiating the permissions to land and stay and removing her from Hong Kong on the basis that her OWCEP was unlawfully obtained and had been invalidated.  The Director set out the facts and grounds for his views and invited the applicant to make representations.              

10.  The applicant’s solicitors made representations against the vitiation of the Director’s permissions and the removal of the applicant by letter dated 5 October 2006. 

11.  Having considered the representations, the Director decided to vitiate the permissions given to the applicant to land and stay in Hong Kong. The decision was communicated to the applicant by letter dated 30 March 2007. In the letter, the Director further stated that in consequence of the vitiation of the permissions, the applicant became liable to be removed by a removal order on the ground that she had landed in Hong Kong unlawfully, and that consideration was being given to the making of a removal order against her.

12.  Before the Director made his decision, the applicant made an application to the Right of Abode Section of the Immigration Department for verification of eligibility for permanent identity card on 13 October 2006.  By letter dated 13 April 2007, the Director refused the application, pointing out, inter alia, that the applicant’s permission to land and remain in Hong Kong had been vitiated and that the applicant’s presence in Hong Kong was without the Director’s permission, such that she did not satisfy the requirement of being ordinarily resident in Hong Kong for a continuous period of not less than seven years. The Director further stated that if the applicant considered she was qualified for permanent status, she might apply in person for the issue of a permanent HKIC, upon the refusal of which she could appeal to the Registration of Persons Tribunal.

13.  On 4 May 2007, the applicant applied to the Registration of Persons Office for the issue of a permanent HKIC. The application was refused on the same day.  On 11 May 2007, the applicant lodged an appeal to the Registration of Persons Tribunal against the refusal. The appeal is still pending. 

14.  In the meantime, the applicant’s solicitors wrote to the Director on 24 April 2007, requesting for the issue of a non-permanent adult HKIC to the applicant.

15.  By letter dated 21 May 2007, the Director refused the request on the basis that the permission given to the applicant to land and remain in Hong Kong had been vitiated such that her landing and stay in Hong Kong were at all material times unlawful and that accordingly no identity card should be prepared for her pursuant to reg. 5(1A)(a) of the Registration of Persons Regulations, cap.177A.

Application for judicial review

16.  On 16 August 2007, the applicant filed the Form 86A herein. Leave to apply for judicial review was granted by Lam J on 22 August 2007. On 4 September 2007, the applicant issued the Notice of Motion to apply for judicial review.

17.  The applicant’s ground for judicial review, as set out in the Form 86A, is that the Director acted unlawfully in refusing to issue a non-permanent HKIC to her.  Specifically, it is said that although she surrendered her juvenile HKIC on 24 January 2003, she did not give up her status as a non-permanent Hong Kong resident.  Other than following the procedure in section 19 of the Immigration Ordinance, cap.115, the Director has no power to make an administrative decision to deprive her of her status as a non-permanent resident or to vitiate the permissions to land and stay given to her on 30 January 1999.  

18.  The applicant seeks a certiorari to quash the Decision and also a mandamus to compel the Director to issue to her an adult Non-Permanent HKIC.

19.  At the start of the hearing, it was pointed out to Mr Tang, who appeared for the applicant, that the power to issue HKIC is vested in the Commissioner for Registration of Persons and not the Director of Immigration. Further, even if the Court were minded to quash the Decision, it would not be right for the Court, in its supervisory jurisdiction, to order the issue of a HKIC to the applicant.  Having considered the matters, Mr Tang indicated at the close of his submissions that the applicant did not propose to amend the respondent or the Form 86A and would not advance any further argument on the relief of mandamus.

The applicant’s case for judicial review

20.  The central argument in this judicial review is that, other than under s.19 of the Immigration Ordinance, the Director has no power to vitiate the previous permissions for the applicant to land and to remain in Hong Kong and to declare her stay in Hong Kong as unlawful.  There are two major planks in the argument. The first is that there is no provision in the Immigration Ordinance authorising the Director to invalidate permission to land or remain in Hong Kong and that s.19(4) is the only provision dealing with invalidation of permission.  The second is that the Final Court of Appeal had in Director of Immigration v. Lau Fong, supra, held that the Director could only invalidate his previous permissions to land or remain by invoking s.19 of the Immigration Ordinance.  In essence, the applicant says that since the removal order against her had been withdrawn, the Director could not lawfully refuse to prepare and issue a non-permanent HKIC to her. The Director’s refusal is tantamount to using an administrative act to deprive her of her status as a non-permanent Hong Kong resident.

21.  These propositions will be examined in turn.

S.19 of Immigration Ordinance

22.  S.19 of the Immigration Ordinance deals with the power to issue a removal order.  Subsections (1)(b) and (4), on which the applicant relies, provide as follows:

“(1) A removal order may be made against a person requiring him to leave Hong Kong-

(a)    …

(b)   by the Director if it appears to him that that person- 

(i)      might have been removed from Hong Kong under section 18(1) if the time limited by section 18(2) had not passed; or

(ii)    has (whether before or after commencement of the Immigration (Amendment) (No. 4) Ordinance 1981 (75 of 1981)) landed in Hong Kong unlawfully or is contravening or has contravened a condition of stay in respect of him; or

(iia) not being a person who enjoys the right of abode in Hong Kong, or has the right to land in Hong Kong by virtue of section 2AAA, has contravened section 42; or

(iii) being a person who by virtue of section 7(2) may not remain in Hong Kong without the permission of an immigration officer or immigration assistant, has remained in Hong Kong without such permission.

…

(4) A removal order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or while it is in force.”

23.  Two points about the section should be noted.  First, s.19(1) provides that a removal order may be made by the Director.  The power to make a removal order is therefore discretionary.  Second, s.19(4) prescribes the effect of a removal order on the permission to land or remain in Hong Kong given to the person against whom the removal order is made.  The subsection does not, as Mr Tang suggests, confers a power on the Director to invalidate the permission to land or the permission to remain in Hong Kong by the making of a removal order. 

24.  As to the applicant’s contention that other than s.19(4), the Director has no power to invalidate previous permission to land or remain in Hong Kong, s.40(2) of Interpretation and General Clauses Ordinance, cap.1 provides that where any Ordinance confers upon any person a power to give approval to any person or thing, such power shall include a power to withdraw approval thereof.   Hence, it is immaterial that there is no express provision in the Immigration Ordinance to empower the Director to invalidate permission given to a person to land or to remain in Hong Kong.  The Director clearly has power to do so and he does not have to resort to s.19(4) of the Immigration Ordinance.

25.  Indeed, as the authorities demonstrate, where permission to land was given on the basis of an unlawfully obtained travel document, hence deception, it was open to the Director to vitiate the permission and the person would be regarded as having landed and remained in Hong Kong unlawfully: See for example Kong Sau Mei v. Director of Immigration [1999] 1HKC 174; and also the Court of Appeal’s decision in Wong Ka Hin v. Director of Immigration (unreported) CACV 1937/2001, 25 January 2005.

Director of Immigration v. Lau Fong

26.  The applicant places heavy reliance on the case of Director of Immigration v. Lau Fong, supra.  Before this case, the Court of Final Appeal had held in Gurung Kesh Bahadur v. Director of Immigration (2002) 5 HKCFAR 480 that when a non-permanent resident returns to Hong Kong during the currency of a pervious permission to remain, he is entitled to be re-admitted by virtue of the right to freedom to travel under Art.31 of the Basic Law and that his permission to land or stay will not, pursuant to s.11(10) of the Immigration Ordinance, expire upon his departure from Hong Kong. 

27.  In Director of Immigration v. Lau Fong, which is an appeal by the Director of Immigration, the principal question for the Court of Final Appeal is: “whether the same conclusion follows if an immigration officer concludes that the previous permission to remain and the status of non-permanent resident was obtained by fraud or deception. In such a case, does an immigration officer have power under s.11(1) of the [Immigration] Ordinance to refuse permission to enter Hong Kong, to remove the person from Hong Kong under s.18(1) of the Ordinance and to detain him under s.32 pending removal ?” (at para.6, p.60) 

28.   In that case, the respondent came to Hong Kong on an OWCEP and was granted permission to land in Hong Kong and to remain, which permission had been extended from time to time. She was also issued with a non-permanent HKIC. The respondent travelled outside Hong Kong during the currency of her latest extension of stay. On her return, she was examined by an immigration officer under s.4(1) of the Immigration Ordinance and refused permission to land under s.11(1) on the ground that her OWCEP was obtained by fraud and the previous permission to remain as well as her residence status in Hong Kong was accordingly vitiated and revoked.  She was informed she would be removed from Hong Kong under s.18 of the Immigration Ordinance and was detained under s.32 pending removal.

29.  It was part of the Director’s case that the respondent’s permission to stay in Hong Kong became expired upon her departure from Hong Kong. The Director further argued that the freedom to travel under Article 31 of the Basic Law only applied to Hong Kong residents, and the respondent was not qualified to be a non-permanent resident because she obtained her permission to enter and stay in Hong Kong by fraud.  It followed, the Director contended, that on the respondent’s return to Hong Kong, she was subject to ss.4(1) and 7 of the Immigration Ordinance and could be refused permission to land, removed from Hong Kong and detained pending removal under ss.11(1), 18(1)(a) and 32 of the Ordinance.   The respondent, on the other hand, argued that a HKIC is prima facie evidence of the holder’s status as a non-permanent resident and the Director carried the burden of establishing the unlawful entry and the invalidity of the permission of stay. The respondent further argued that ss.4(1), 7, 11(1), 18 and 32 of the Immigration Ordinance were inapplicable and that the Director should have acted under ss.11(6) and 19 of the Ordinance, which would have allowed her an opportunity to challenge the decisions made.

30.  On the legal position of a HKIC, the Court of Final Appeal agreed with the respondent and held that a non-permanent HKIC amounts to an official recognition and confirmation that the holder has the status of a non-permanent resident, subject to the holder having at any given time, unexpired permission to remain in Hong Kong. While noting that under reg.19(3) of the Registration of Persons Regulation, cap.177A, a registration officer has the power to declare the invalidation of a HKIC, it pointed out that a HKIC remains valid until declared invalid.

31.  The Court of Final Appeal further held that, as a matter of statutory interpretation, the procedure available under s.4, s.7(1), s.11(10) and s.18 of the Immigration Ordinance could not apply to a case where the question in issue is whether a person, having an expired permission to remain in Hong Kong and claiming the status of a non-permanent resident supported by the holding of HKIC, no longer enjoys that status because an immigration officer takes the view that the permission of the stay and the issue of the HKIC was induced by fraud or deception.  In coming to this conclusion, the Court of Final Appeal had considered and compared the procedure under s.4(1), s.7(1), s.11(10), s.18 and s.26 (detention for inquiry) and the procedure prescribed by s.19 of the Immigration Ordinance.  It considered that the former procedure allows low level decision-making and is appropriate for simple, straight-forward cases whereas the latter procedure requires high level decision-making with substantial safeguards and is appropriate for determination of cases involving a claim to residence status: at paras.42-44.  

32.  An important factual matrix in the Lau Fong case, as in the Gurung case, is that the respondent had travelled outside Hong Kong during the currency of the permission of stay and was refused permission to re-enter Hong Kong.  Having regard to the freedom to travel under Art.31 of the Basic law, the Court of Final Appeal held that s.11(10) of the Immigration Ordinance did not apply to the respondent such that her permission to stay did not expire when she departed from Hong Kong.  It is against this backdrop that the Court of Final Appeal considered that the Director should not make a determination on the respondent’s immigration status by subjecting her to examination under s.4 and s.7 of the Immigration Ordinance, then refusing her permission to re-enter Hong Kong and also removing her by invoking s.11(1) and s.18 of the same. 

33.  The case did not decide that in all cases, where the Director is minded to vitiate permissions given to a non-permanent Hong Kong resident to land or to remain in Hong Kong, he must issue a removal order under s.19 of the Immigration Ordinance.  The case is therefore no authority for the applicant’s argument that the Director cannot, short of issuing a removal order against her, vitiate the permission given to her to land and remain in Hong Kong.  As Mr Man points out, if the applicant’s argument is upheld, it will mean that the Director has no discretion under s.19(1) of the Immigration Ordinance in that he is bound to issue a removal order.  That cannot be right in light of the wording of the section.  

The Decision

34.  The fundamental hurdle faced by the applicant is that she has made no challenge, whether in this judicial review or otherwise, to the Director’s decision to vitiate the permission given to her to land and to remain in Hong Kong, a decision communicated to her by letter 30 March 2007. 

35.  Given that the Director had vitiated his permission for the applicant to land and remain in Hong Kong, the only decision that could have been made on the applicant’s application for the issue of a non-permanent HKIC would be to refuse it.   Reg.5(1A) of the Registration of Persons Ordinance provides that the registration officer shall not cause a HKIC to be prepared for an applicant who has landed and remained in Hong Kong unlawfully. 

36.  Further, having regard to the legal significance of a HKIC as explained in Director of Immigration v. Lau Fong, supra, at paras.37 & 38, the Director could not have issued a HKIC to the applicant when he had decided that the previous permission for the applicant to land and remained in Hong Kong was obtained by deception and that she has been remaining in Hong Kong unlawfully.  Alternatively, since the applicant is disputing the Director’s position that her OWCEP was unlawfully obtained and her stay in Hong Kong was unlawful, the Director could not in the proper exercise of his power have caused an adult HKIC to be prepared and issued to the applicant. 

37.  The fact that the applicant once held a juvenile HKIC and that she only surrendered it for the purpose of applying for an adult HKIC will not advance the applicant’s case.  Reg.6(2) of the Registration of Persons Regulations requires every person, who is under 18 years of age and is holder of an identity card, to surrender the juvenile identity card and apply for an adult identity card within 30 days of his 18^th birthday.  Although the Chinese text of reg.6(2) refers to a permanent identity card, the English text simply refers to “an identity card” without confining it to holders of permanent identity card.  Reg.6(4) also provides that an identity card thus surrendered shall cease to be valid.  At the same time, reg.7 provides that a juvenile identity card not surrendered shall cease to be valid 30 days after the holder’s 18^th birthday.  The upshot of all these is that the juvenile HKIC that the applicant once held has since ceased to be valid.  And even if she did not surrender it on applying for an adult HKIC, her juvenile HKIC would still have become invalid 30 days after her 18^th birthday.

38.  Thus analysed, the applicant’s complaint that the Decision amounts to an administrative decision to deprive her of her status as a non-permanent resident is misplaced.  For the same reasons, the applicant’s other complaint that the Decision has deprived her of the appeal procedures under s.53A of the Immigration Ordinance, which would have been available to her had a removal order been made, is also misconceived.  The Decision is a logical and natural consequence of the Director’s decision of 30 March 2007 to vitiate the permission to land and remain in Hong Kong.  The refusal to issue a non-permanent adult HKIC is by itself not a determination on the immigration status of the applicant.  As far as procedural fairness and safeguards is concerned, before the Director decided in March 2007 to vitiate the permission to land and stay, the applicant had been afforded opportunity to be heard and her legal representatives had made representations on her behalf.  Further, the applicant will have an opportunity to appeal to the Immigration Appeals Tribunal when, in due course, the Director makes a removal order to compel her removal.

Conclusion

39.  For the above reasons, the application for judicial review is dismissed.  Counsel are in agreement that the normal rule of costs follow event should apply.  Accordingly, there is an order that the applicant pays the respondent the costs of these proceedings, to be taxed if not agreed.  There is also an order that the applicant’s own costs be taxed under the Legal Aid Regulations.