DOMINGO DANIEL L v. COMMISSIONER OF REGISTRATION AND ANOTHER

HCAL 127/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 127 OF 2010

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J U D G M E N T

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1.  This is the second case heard by this court in respect of the challenge by some foreign domestic helpers to the refusals of the Commissioner of Registration to issue them permanent identity cards. In the judgment handed down in the test case of Valiejos Evangeline B. v Commissioner of Registration HCAL 124 of 2010, 30 September 2011, this court held that Section 2(4)(a)(vi) of the Immigration Ordinance [“the Impugned Provision”] is inconsistent with Article 24(2)(4) of the Basic Law. For all intents and purposes, that judgment disposed of the same issue in the present case.

2.  The remaining issues in this case are,

(a) Whether the Applicants in the present case are estopped from asserting that their respective ordinary residence in Hong Kong commenced on a date earlier than 14 November 2007;

(b) Whether Mrs Domingo satisfied the requirement of having a continuous ordinary residence of 7 years immediately before the date of her relevant application, viz. 4 March 2008.

3.  The Registration of Persons Tribunal [“the Tribunal”] ruled in favour of the Commissioner on both issues.  The ruling is subject to challenge in this application for judicial review.

Backgrounds of the Applicants

4.  The relevant background facts are set out in the Agreed Facts adopted by the parties in the Tribunal.  The Agreed Facts are annexed to this judgment.  In the sections below dealing with the substantive issues, I will refer to the relevant facts more specifically.

The estoppel argument

5.  The relevant facts to the estoppels argument are as follows.  On 13 April 2006, the Applicants submitted applications for the verification of eligibility for permanent identity card accompanied by their declarations of having taken Hong Kong as their only place of permanent residence.  Their applications were rejected by the Immigration Department based on the Impugned Provision.  In August 2006, their applications for permanent identity cards were refused by the Commissioner.  The Applicants lodged their appeals against the decisions of the Commissioner to the Tribunal soon thereafter.

6.  On 11 October 2007, the Department of Justice acting on behalf of the Commissioner wrote to the Applicants’ solicitors in the following terms,

“Subsequent to the lodging of the appeals to the Tribunal, the Director of Immigration (“the Director”) has reviewed the cases and reconsidered all the circumstances and individual merits of the Appellants’ case.  Subject to the withdrawal of the captioned appeals, the Director is prepared to grant upon applications the Appellants permissions to remain in Hong Kong afresh on time limitation for an initial period of 12 months with no restriction to take up employment exceptionally.  Further extension of stay would be considered favourably upon applications under the prevailing immigration policy principally with regard to their ability to show that there is no security objection and no known record of serious crime and there is no likelihood of the Appellants becoming a burden to Hong Kong.

The Director is of the view that the proposed arrangement under which the Appellants will be permitted to remain on time limitation with no restriction to take up employment would substantially satisfy their needs for continued residence, a privilege which in due course would lead to their acquiring right of abode in Hong Kong should they fulfil the necessary requirements.  Accordingly your clients will have little to gain by continuing to litigate in the present appeals for some uncertain rights.  It is important that costs are not incurred unnecessarily in further pursuing the captioned proceedings.  We shall be grateful if you could take clients’ instructions and revert whether your clients will withdraw the captioned appeals.

We should make it clear that the Director’s proposed course of action is entirely without prejudice to his and the Commissioner’s stance that there is no basis for the decisions under challenge to be reversed on appeal.”

7.  On 8 November 2007, solicitors for the Applicants wrote back indicating that the offer of the Commissioner was acceptable to them.

8.  On 14 November 2007, pursuant to the offer of the Commissioner, the Applicants attended the office of the Immigration Department to apply for extension of stay.  Initially, as indicated in the offer, a twelve months extension was granted.  That was set out in a letter of 14 November 2007.  The Applicants were asked to acknowledge the receipt of the letter.  I set below the contents of the document in respect of Mr Domingo.  Mrs Domingo also received and signed a similar document.  Those acknowledgements were signed in the absence of their lawyers.

“Mr. DOMINGO, Daniel L.

(Present)

Dear Mr. DOMINGO,

I refer to your application for extension of stay submitted on 14 November 2007 .

The Director has given permission to you to remain in Hong Kong Special Administrative Region (HKSAR) for a period of twelve months from 14 November 2007. Please note that in calculating the length of your ordinary residence in HKSAR, 14 November 2007 will be the starting date.

_____________________________________

Acknowledgement

I, DOMINGO, Daniel L., (Travel Document No. PP 0577390) acknowledge receipt of a copy of the above letter.

 

Signature:  Signed  '

Date: Nov. 14, 2007 ”

9.  On 3 December 2007, the Applicants withdrew their appeals to the Tribunal.

10.  On 4 March 2008, the Applicants made another set of applications for verification of eligibility.  The application was refused on 18 July 2008 and the Commissioner rejected their applications for permanent identity cards on 14 August 2008.  The Applicants lodged fresh appeals in respect of the rejections of their second applications.  The decisions subject to judicial review in the present proceedings are the decisions of the Commissioner of 14 August 2008 and the decisions of the Tribunal in the appeals against such decisions.

11.  In dismissing the appeals, one of the grounds relied upon by the Tribunal was estoppel.  The reasoning of the Tribunal on estoppels was set out at paras. 56 to 58 of the Tribunal’s Reasons for Decision of 4 June 2010.  At paras. 56 and 57, the relevant facts were recited.  Then at para. 58, the Tribunal said,

“By reason of the aforesaid, [the Applicants] should be estopped from disputing that the ordinary residence in HKSAR should commence on 14 November 2007. As such it was hardly for them to satisfy the Residence Requirement….”

12.  The Tribunal did not explain the legal basis for the estoppel.  I have been taken to the submissions placed before the Tribunal.  Neither can I discern from such submissions the nature of the estoppels relied upon by the Commissioner.

13.  That was the position notwithstanding the complaint by counsel for the Applicants in her submissions in the Tribunal hearing that the Commissioner’s case on estoppels had not been properly formulated^[1].  Amongst other points, counsel for the Applicants also advanced the following submissions on the question of estoppel,

(a) There was no representation by the Applicants or any inducement or reliance on the part of the Commissioner;

(b) The offer from the Commissioner in the letter of 11 October 2007 did not contain any statement to the effect the offer was made on the basis that the Applicants’ period of ordinary residence was to be considered afresh as from the extension of permission to remain in Hong Kong;

(c) The term of the offer was that the Applicants would withdraw their appeals.  There was no additional requirement as to how ordinary residence of the Applicants would be calculated;

(d) The statement as to the commencement date of ordinary residence in the letter of 14 November 2007 was only a unilateral statement of the Commissioner and the Applicants did not adopt the same simply by signing the acknowledgements.

14.  Though it referred to some submissions of the Applicants at paras. 46 to 50, the Tribunal did not actually deal with these submissions in the Reasons for Decision.  At para. 51, the Tribunal said whether there was any estoppel was a matter of facts for the Tribunal.  With respect, that is not entirely correct.  Apart from finding on the relevant fact, whether any argument as to estoppel can be sustained also involved the application of the facts to the relevant legal principles.  The only substantive arguments that the Tribunal dealt with in the Reasons is the argument that the Commissioner was not a party to the settlement agreements^[2] and the applicability of the concept of estoppel in public law^[3].

15.  With respect, this is unsatisfactory.  Rightly or wrongly, common lawyers used the expression “estoppel” to convey various legal doctrines^[4].  Apparently, counsel for the Applicants thought she was dealing with the concept of promissory estoppel (thus her reference to representation, reliance and detriment in her submissions before the Tribunal).  On the other hand, at the hearing before this court, Mr Chan (who only appeared in the present proceedings but not in the hearing before the Tribunal and was therefore unable to assist this court in terms of the elaboration of the submissions before the Tribunal) for the Commissioner relied on the concept of estoppel by convention.  Lastly, this court referred parties to the English Court of Appeal judgment in R v Home Secretary ex p Momin Ali [1984] 1 WLR 663 where a concept akin to issue estoppel was considered in the context of public law litigation.

16.  Though I understand one cannot expect the Tribunal to give a judgment in the same manner as a court of law, the reasons given must address the point of law in issue.  In this respect, the observation of the Chief Justice in Oriental Daily Publisher v Commissioner for Television and Entertainment Licensing Authority (1998) 1 HKCFAR 279 at p. 291G is apposite,

“Reasons for a decision on a point of law should usually set out the findings of fact, the point of law at issue and the process of reasoning leading to the conclusion.”

Further, in Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at para. 51, the Chief Justice said,

“The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of … judicial review.”

17.  In the present context, the Reasons given by the Tribunal on estoppel (I was told that its members were lawyers) were inadequate in that it did not identify the nature of the estoppel the Tribunal had in mind and it did not provide any legal analysis as to how that concept was applicable in the present case in view of the contrary submissions by counsel for the Applicants.  Had the Tribunal done so, it might have appreciated that there is considerable difficulties in evoking the concept of estoppel on the facts of the present case.

18.  I agree with the submission on behalf of the Applicants that no promissory estoppel or estoppel by representation can arise on the facts of the present case.  The offer letter of 11 October 2007 did not require the Applicants to undertake not to assert ordinary residence in respect of their presence in Hong Kong prior to 14 November 2007.  The acceptance of the offer by the solicitors for the Applicants did not include such a representation.  The obligation of the Applicants arising from the settlement was to withdraw their appeals.  That was the bargain and they had fulfilled their part of the bargain in withdrawing the appeals.

19.  I also agree that the acknowledgment of receipt signed by the Applicants on 14 November 2007 cannot give rise to any representation that the Applicants agreed with the unilateral statement of the Commissioner that their ordinary residence should commence on 14 November.

20.  As regards Mr Chan’s argument based on estoppel by convention, counsel relied on the test set out in the judgment of Lord Steyn in The “Indian Endurance” [1998] AC 878 at p. 913 (cited by the Court of Final Appeal in Unruh v Seeberger (2007) 10 HKCFAR 31).  The doctrine was stated as follows,

“It is settled that an estoppel by convention may arise where parties to a transaction act on an assumed state of facts or law, the assumption being either shared by them both or made by one and acquiesced in by the other. The effect of an estoppel by convention is to preclude a party from denying the assumed facts or law if it would be unjust to allow him to go back on the assumption. It is not enough that each of the two parties acts on an assumption not communicated to the other. But it was rightly accepted by counsel for both parties that a concluded agreement is not a requirement for an estoppel by convention.”

21.  The doctrine is well established in private law and has mostly been applied in commercial cases.  It has also been applied in other context in private disputes.  But I am not aware of any instance where it was applied in the context of public law litigation.  Mr Chan told this court he was not able to find a case where the doctrine was applied in public law litigation.  Speaking on my part, I have some doubts whether the doctrine can be applicable in a judicial review other than its applicability in procedural context.

22.  As it has often been said, the role of the court in judicial review is different from its role in private law litigation.  In the former, the court exercises its supervisory jurisdiction to maintain the rule of law and it would confine itself to review the legality, rationality and fairness of an administrative decision.  In the latter, the court exercises its primary adjudicative function in resolving disputes between the parties on its merits.  In public law litigation, the court has to be mindful that in most of the cases (if not all) the public authority exercises a public power.  Apart from the interest of the parties before the court, a decision made by the public authority would affect the society at large and as such there could be conflicting interests which need to be balanced.  Given the wider scope of public interest (which is more susceptible to dynamic changes from time to time) being involved, the need for flexibility is much greater than that in the resolution of a dispute between private interests.  This can be illustrated by developments in the doctrine of legitimate expectation.

23.  As far as the invocation of estoppel by an applicant against the public authority in public law litigation is concerned, it has largely, if not wholly, been overtaken by development in respect of the doctrine of legitimate expectation and the requirement of procedural fairness^[5].

24.  The present case involves the invocation of the doctrine of estoppel by convention by a public authority against the Applicants. Both Ms Li SC and Mr Chan referred to the judgment of Moore-Bick J in Stancliffe Stone Co Ltd v Peak District National Park Authority [2005] En LR 43 para. 35 in their arguments on applicability of estoppel in public law litigation.  That was a decision in a planning context where a party tried to assert estoppel against the planning authority.  I have reservation of distilling from that case a general principle applicable to all judicial review in respect of different doctrines of estoppel.  I do not think the applicability of the doctrine of estoppel by convention in the context of public law has been fully argued before me and I would not express any conclusion in that regard.  Even assuming that the doctrine can be applied in public law litigation, it cannot assist the Commissioner.

25.  In Unruh v Seeberger, Ribeiro PJ explained the requirement of common assumption for an estoppel by convention at para. 137,

“What is important is for them to act in the belief, manifested by words or conduct, that they are both proceeding with the transaction on the basis of the same shared assumption. As Handley puts it: ‘The representation is not necessarily that the convention is true but that it has been mutually adopted and each party relies on its adoption when they enter into the transaction.’…”

26.  In the present context, it is necessary to identify the transaction in question and the basis for asserting that the Applicants had adopted the assumption that their ordinary residence would be calculated from 14 November 2007.  The Tribunal has not undergone such analysis.  In view of the submissions advanced before the Tribunal, I doubt if the Tribunal had this doctrine in mind when it concluded that the Applicants were estopped.

27.  It is not for this court to speculate what would be the answers if the Tribunal had analysed the matter with the correct principle of law in mind.  Suffice to say for the purpose of the present proceedings I perceive considerable difficulty in the Commissioner’s attempt to show the adoption of such assumption by the Applicants in view of the submissions of counsel for the Applicants mentioned above.  Also, if the relevant transaction is the settlement agreement, there was no communication by the Commissioner to the Applicants of this assumption on his part before the conclusion of the agreement.

28.  Though I have referred to the case of R v Home Secretary ex p Momin Ali [1984] 1 WLR 663 at the hearing, Mr Chan did not seek to uphold the Tribunal’s decision on estoppel by reference to any principle of law derived from that case.  The Tribunal did not refer to any concept based on the public interest in the finality of determination in coming to its conclusion.  There is no suggestion that the Applicants’ second set of applications were an abuse of process.  In such circumstances, I need not give further consideration in that regard.

29.  I conclude that the Tribunal, by failing to identify and consider how a principle of estoppel was applicable to the Applicants’ cases, erred in law in holding they were estopped from asserting that their ordinary residence commenced earlier than 14 November 2007.

30.  Since, apart from the Impugned Provision, the estoppel argument was the only other ground on which the Tribunal dismissed the appeal of Mr Domingo, his challenge in this judicial review prevails.

Mrs Domingo

31.  The detail employment history of Mrs Domingo and her stay in Hong Kong is set out in the Agreed Facts^[6].  Since this judicial review stems from her application for verification of eligibility on 4 March 2008,  in accordance with the interpretation of Article 24(2)(4) of the Basic Law in Fateh Muhammad ^[7]the relevant seven year period started from 4 March 2001.  Thus, though Mrs Domingo has been in Hong Kong earlier than that date, the focus should place on the seven years starting from 4 March 2001.

32.  For present purposes, I only need to refer to some notable features of those seven years.  On 18 November 2004, Mrs Domingo’s FDH employment was terminated.  She left Hong Kong on 7 December 2004.  She came back to Hong Kong on 2 April 2005 and was permitted to stay as a visitor until 16 April 2005.  She left via Lo Wu on 14 April and came back on 15 April and was permitted to remain as a visitor until 29 April. She left via Lo Wu on 24 April and returned on 26 April and was permitted to remain as a visitor until 10 May 2005.  She departed Hong Kong for the Philippines on 8 May 2005.

33.  It is accepted by Mr Chan that the Tribunal had made an error of fact when it indicated at para. 69 of the Reasons for Decision that Mrs Domingo was not in Hong Kong between 8 May 2005 and 2 December 2006.  As stated in the Agreed Facts, Mrs Domingo came back to Hong Kong on 22 June 2005 on a FDH visa to take up employment as FDH with a Ms Chan.

34.  As mentioned above, in April 2006, Mrs Domingo made her first application for verification of eligibility.  After the refusal by the Immigration Department and the Commissioner, she lodged her first appeal to the Tribunal in August 2006.

35.  Her employment was terminated by Ms Chan on 2 September 2006.  Mrs Domingo remained in Hong Kong and made several applications for extension of stay.  After granting her three successive permissions to remain in Hong Kong on visitor condition (the last of which expired on 30 November 2006), the Director of Immigration refused to grant her further permission.

36.  On 30 November 2006, Mrs Domingo departed Hong Kong via Lo Wu Terminal and she returned to Hong Kong via Lo Wu Terminal on 2 December 2006.  She was granted permission to stay in Hong Kong as a visitor until 16 December.

37.  On 13 December 2006, she made an application for extension of stay on the ground that her appeal in the Tribunal was pending. On 27 December 2006, the Director refused the application.  In a letter of 27 December 2006, the Director wrote,

“…..Your application has been considered. Whilst not prepared to grant you an extension of stay, the Director will not insist upon your departure from the HKSAR on or before 10 January 2007 to facilitate your making the necessary departure arrangement. Your presence in the HKSAR during the period concerned will be tolerated, provided that there being no adverse record found against you.

Please note that your continuing presence in the HKSAR after expiry of your limit of stay on visitor status on 16 December 2006 amounts to a breach of your conditions of stay, which will render you liable to prosecution under Section 41 of the Immigration Ordinance, Cap 115 and your immediate enforced departure from the HKSAR.

…..

For avoidance of doubt, you are reminded that this letter or the tolerance of you stay in the HKSAR is not to be construed as approval of your application for extension of stay nor any permission to remain given by the Director. Your limit of stay has expired and has not been extended. No permission to remain in the HKSAR since expiry of your limit of stay has been given and that your presence in the HKSAR until the required departure date set out above will only be tolerated by the Director, who reserves his rights to take legal action on your breach of conditions of stay.

Meanwhile, should you decide to leave the HKSAR before the required departure date, please approach Extension Section, 5/F Immigration Tower, Wanchai, Hong Kong and present this letter for departure arrangements to be made.”

38.  Mrs Domingo did not leave Hong Kong by 10 January 2007.  She continued to remain in Hong Kong until she was granted permission to stay on 14 November 2007 in circumstances set out above.

39.  The Tribunal came to the following conclusion at para. 70 of the Reasons for Decision,

“70. During the period in which she was in Hong Kong on visitor visa, it was hardly for the Tribunal to conclude that she was ordinarily resident here. By applying the judgment of Mohammed Hasham v Registration of Persons Tribunal (HCAL 154 of 2005) there was no basis whatsoever for Madam Domingo to argue the letter dated the 27 December 2006 amounting to permission for her to remain in Hong Kong. It follows that Mrs. Domingo could not satisfy the requirement of a continuous period of not less than 7 years ordinarily resident immediately prior to her VEPIC application on 4 March 2008 from any angle based on the facts found by the Tribunal. Since she failed to discharge the burden of proving the Residence Requirement, there was no need for the Tribunal to deal with the Permanence Requirement.”

40.  Ms Li attacked the conclusion of the Tribunal in two respects,

(a) The proposition that Mrs Domingo’s periods of stay in Hong Kong on visitor visa cannot be counted towards her being ordinary resident here is wrong in law having regard to the test laid down in Ex p Shah ^[8].

(b) Mrs Domingo’s stay from 16 December 2006 to 14 November 2007 is not caught by the principle in Mohammed Hasham v Registration of Persons Tribunal and should be regarded as part of her ordinary residence in Hong Kong having regard to her personal circumstances.

41.  Mr Chan’s submissions focused on issue (b).  I will adopt the same course as, according to Fateh Muhammad and Prem Singh ^[9] there has to be a continuous ordinary residence of seven years immediately prior to the date of application and if there is a break (where the nature of presence in Hong Kong cannot be regarded as ordinary residence) in such period the seven years period has to run afresh.  As explained by Ribeiro PJ in Prem Singh ^[10] the exclusion of the period in such case is qualitative instead of quantitative and for that reason the de minimis rule is not applicable.  Thus, if Mrs Domingo’s presence in Hong Kong from 10 January to 14 November 2007 is excluded by reason of its being unlawful in nature, this would be sufficient to uphold the dismissal of her application.  Her period of ordinary residence would run afresh from 14 November 2007.

42.  Though reference was made by Ms Li in her submissions to Section 2(6) of the Immigration Ordinance, this provision cannot assist Mrs Domingo in respect of her stay in Hong Kong from 10 January to 14 November 2007.  The provision only deals with the situation where a person is temporarily absent from Hong Kong.  During this period, Mrs Domingo was physically in Hong Kong and the issue is whether the nature of her stay leads to a break in seven year continuous ordinary residence immediately before her application.

43.  In Mohammed Hasham v Registration of Persons Tribunal HCAL 154 of 2005, 17 January 2006, the court applied the law as set out in the Court of Appeal decision of Lai Yau Chik v Director of Immigration [2002] 2 HKC 546.  In the context of the Immigration Ordinance, it was held that sufferance is not equivalent to permission to stay.  The withholding of enforcement action towards the removal of a person who has no permission to remain cannot be regarded as permission to stay so as to change the nature of his or her presence from unlawful to lawful.  As discussed in Lai Yau Chik, this principle is based on a consistent line of Hong Kong authorities.  The principle was applied in李呈娜对入境事務處處長 HCA 2214 of 2002, 16 September 2002, see in particular paras. 37 to 44.

44.  This principle was reiterated by Rogers VP in Sun Jie v Registration of Persons Tribunal CACV 320 of 2004, 22 Dec. 2005.  At paras. 8 to 10,

“8. On this appeal Mr Fok SC, who appeared on behalf of the second and third respondent relied on five propositions of law. They were as follows:

(a) The presence of a person in Hong Kong without permission does not constitute ordinary residence: section 2(4)(a)(ii) of the Ordinance.

(b) Where a person who is ordinarily resident in Hong Kong leaves Hong Kong temporarily he may be treated as still remaining ordinarily resident so long as such absence is during a valid limit of stay which has not expired.

(c) Where a person who has been ordinarily resident in Hong Kong leaves because his permission to stay ends the period of absence from Hong Kong cannot be treated as ordinary residence.

(d) The provisions of section 2(6) of the Ordinance must be read with the foregoing propositions in mind, thus the “circumstances of the person” which the subsection makes relevant will include the question of whether the person was entitled to be in Hong Kong during that period of absence.

(e) 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 the period and this includes whether a person would be entitled to remain.

9. Although I have no doubt that these propositions are correct, it seems to me that this case is governed by one very simple proposition namely that it is impossible for somebody to be ordinarily resident in a place when he cannot be resident there.

10. As explained in the Shah case ordinary 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.”

45.  Mr Sun tried to appeal to the Court of Final Appeal.  In dismissing the application for leave to appeal, the Appeal Committee of the Court of Final Appeal said at para. 4 of the Determination in FAMV No. 20 of 2006, 28 September 2006,

“4. We do not think this is a reasonably arguable ground of appeal. The applicant was given permission to remain and hence to acquire ordinary residence in Hong Kong on the basis of his employment. When his employment was terminated, he no longer had any permission to remain and his ordinary residence also came to an end. In order to succeed, the applicant has to show that he falls within s.2(6) of the Ordinance. It is clear that he does not. His absence was not a merely temporary hiatus in a continuous period of ordinary residence. This is because when he returned, he was permitted to remain on a completely different basis which the Registration of Persons Tribunal has found to be false. There was no continuity between his residence here as an employee and his presence as a visitor permitted to remain as a result of his false representations.”

46.  In her written submissions, Ms Li contended that this line of authorities failed to take into account of Ex p Shah.  I do not think Ex p Shah requires the court to adopt a different approach.  In the discussion as to the concept of ordinary residence, Lord Scarman said in that case at [1983] 2 AC 309 at p. 343H to 344B,

“There is, of course, one important exception. If a man’s presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence …There is, indeed, express provision to this effect in the Act of 1971, section 33(2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could^[11] have been obtained if he had acted lawfully.”

47.  Section 2(4)(a) of the Immigration Ordinance provides that a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong,

“(ii) in contravention of any condition of stay”.

If a person was given permission to stay up to a date, any stay beyond that date would be in contravention of the condition of stay.

48.  There is no challenge to the constitutionality of this statutory provision and there cannot be any challenge in the light of the clear statement of Lord Scarman in Ex p Shah.

49.  Ms Li, in her oral submissions, invited this court to distinguish this line of authorities because, unlike some other cases, Mrs Domingo entered Hong Kong lawfully.  In my judgment, this is not a valid distinction.  As a matter of principle, as submitted by Mr Chan, the question is addressed towards the nature of the stay in Hong Kong instead of the entry into Hong Kong.  I fail to see why there should be a distinction in this regard between an overstayer (who stayed beyond the period permitted in his condition of stay granted upon his entry) and a person who had sneaked into Hong Kong without any permission to enter though the relevant statutory provision governing the latter would be Section 2(4)(i) as opposed to (ii).  In Mohammed Hasham, the applicant also entered Hong Kong lawfully.

50.  Ms Li also referred to the personal circumstances of Mrs Domingo and she submitted that the matters which the Tribunal took into account at para. 72 to conclude in favour of Mr Domingo on ordinary residence are also present in the case of Mrs Domingo.  These matters are,

“72. ….

(a) Mr. and Mrs. Domingo came to Hong Kong in 1985 and 1982 respectively. They married each other on 28 September 1988. Both of them came back to work and reside in Hong Kong.

(b) From July 1989 to 5 July 2003, Mr. & Mrs. Domingo worked for the same employer, Mr. Herbert Moskowitz. Mr. Moskowitz was and is a bachelor and had no relatives in Hong Kong. He treated Mr. and Mrs. Domingo as his own family members. In 1992 and 1995 respectively, Mrs. Domingo gave birth to Dariel and Darlene Domingo. Mr. Moskowitz is Dariel’s godfather.

(c) During the time under Moskowitz’s employ, Mr. and Mrs. Domingo and their two children resided in a separate, self-contained room. When Dariel and Darlene reached school age (in 2001), a separate flat was rented in Tin Wan for the convenience of the children to travel to school. The rental was at first paid by Mr. Moskowitz and after some time Mr. and Mrs. Domingo paid for it. Mrs. Domingo, Dariel and Darlene would stay in the apartment when the children had to go to school, and he would sometimes join them. This continued up to 2004 when they were grown up enough to travel to school from Lamma Island by themselves.

(d) In 2004, Mrs. Domingo gave birth to her third child, Dickson in Hong Kong.

(e) As to Dariel and Darlene, they both grew up in Hong Kong. They speak fluent Cantonese and English. They also write Chinese. On the other hand, they only speak very little Ilocanos and Tagalog. Since their birth, both Mr. and Mrs. Domingo have always wanted them to live and study in Hong Kong as and when they grew up.

(f) During their stay in Hong Kong, Mr. and Mrs. Domingo as well as their sons bad participated in a number of activities as outlined in their affidavits.

(g) Since coming to Hong Kong in the 1980s, Mr. and Mrs. Domingo spent an overwhelming part of their time here.  Based on the movement records provided by the Commissioner, for the 12 years between 1.7.1996 to 22.10.2008, Mr. Domingo, was only absent from Hong Kong for 7 days.”

51.  But there is a crucial difference between the case of Mr Domingo and that of Mrs Domingo.  Mr Domingo’s continuous residence in Hong Kong had not been interrupted by any unlawful stay.  By reason of the exclusion of unlawful stay from the concept of ordinary residence as a matter of law, these matters cannot assist her.

52.  Ms Li submitted that as Mrs Domingo’s first application was pending appeal at the material period, the letter of 27 December 2006 and the fact that Mrs Domingo was not prosecuted under Section 41 of the Immigration Ordinance show that she was allowed to stay in Hong Kong.  With respect, in view of the long line of authorities (discussed above) as to the distinction between permission to stay and sufferance pending investigation of immigration claim, the point has no merit.  The letter itself made it very clear to Mrs Domingo that her presence in Hong Kong after 16 December 2006 would be a breach of condition of stay.  In any event, the tolerance given in the letter was only in respect of presence in Hong Kong up to 10 January 2007.

53.  For these reasons, the Tribunal was correct in dismissing Mrs Domingo’s appeal.

54.  Having reached this conclusion, it is not necessary for this court to address the issue of Mrs Domingo’s stay in Hong Kong under visitor visa.  Since I have not heard any submissions from the Commissioner in respect of that issue, and the potential impact of a decision on that issue in respect of those who visited Hong Kong frequently on Two Way Permits under Article 24(2) of the Basic Law, I prefer not to express any view in this judgment.

Results

55.  The judicial review of Mrs Domingo, HCAL 127 of 2010 is dismissed with costs in favour of the Commissioner.

56.  Mr Domingo’s judicial review in HCAL 128 of 2010 succeeds.  As to relief, I propose to adopt the same course as I have adopted in HCAL 124 of 2010 unless any party raises any objection by letter to this court within 14 days.

Annex I

Appellant : Mr DOMINGO Daniel L.

Agreed Facts

The Appellant’s Personal and Family Background

1. Mr DOMINGO Domingo Daniel L., also known as DOMINGO Daniel Do Leon (‘Mr DOMINGO’), was born in the Philippines on 24 September 1960.

2. Mr DOMINGO is a Philippine national.

3. Mr DOMINGO and Madam DOMINGO Irene R., also known as DOMINGO Irene Raboy and RABOY Irene P. (‘Madam DOMINGO’) DOMINGO were married on 28 September 1988 and they have three children, namely DOMINGO Dariel R. (‘Dariel’), DOMINGO Darlene R. (‘Darlene’) and DOMINGO Dickson R. (‘Dickson’).

4. Dariel, the first child of Mr and Madam DOMINGO, was born in Hong Kong on 21 September 1992 and has acquired the right of abode in Hong Kong.

5. Darlene, the second child of Mr and Madam DOMINGO, was born in Hong Kong on 29 January 1995 and has also acquired the right of abode in Hong Kong.

6. Dickson, the third child of Mr and Madam DOMINGO, was born in Hong Kong on 8 October 2004.

The Appellant’s Employment History in Hong Kong
First Employment

(from 8 August 1985 to 24 July 1986)

7. On 18 May 1985, Mr DOMINGO signed an employment contract to work as foreign domestic helper (‘FDH’) for Mr SHAMIS Robert Edward (‘Mr SHAMIS’) in Hong Kong.

8. On 19 June 1985, Hong Kong Immigration Department (‘ImmD’) received Mr DOMINGO’s application for a Hong Kong entry visa to work as FDH for Mr SHAMIS.

9. In July 1985, Mr DOMINGO’s entry visa application was approved.

10. On 8 August 1985, Mr DOMINGO arrived in Hong Kong and was permitted to remain in Hong Kong to work as FDH for Mr SHAMIS until 8 February 1986.

11. On 9 August 1985, Mr DOMINGO registered for and was issued a Hong Kong Identity Card (‘HKIC’) no. XXXXXXX(X).

12. Mr DOMINGO was granted extension of stay on 7 February 1986 to remain in Hong Kong to work as FDH for Mr SHAMIS until 8 August 1986.

13. Mr DOMINGO was granted further extension of stay on 23 July 1986 to remain in Hong Kong to work as FDH for Mr SHAMIS until 8 February 1987.

14. On 24 July 1986, Mr DOMINGO’s employment contract was terminated by Mr SHAMIS.

Second Employment
(from January 1987 to 14 November 2007)

15. On 27 August 1986, Mr DOMINGO signed an employment contract to work as FDH for Mr MOSKOWITZ Herbert (‘Mr MOSKOWITZ’) in Hong Kong.

16. According to a letter dated 24 December 1986 from Mr MOSKOWITZ, Mr DOMINGO would leave for the Philippines on 11 January 1987 and return to Hong Kong on 25 January 1987 to take up the employment with him.

17. In January 1987, Mr DOMINGO took up employment as FDH in Hong Kong for Mr MOSKOWITZ.

18. Upon contract renewals and applications for extension of stay, Mr DOMINGO was last granted permission to work for Mr MOSKOWITZ as FDH in Hong Kong till 25 January 2008 or two weeks after termination of contract, whichever was earlier.

19. On 12 June 2004, Mr DOMINGO was issued with a replacement HKIC no. XXXXXXX(X).

20. On 14 November 2007, Mr DOMINGO resigned from his employment as FDH for Mr MOSKOWITZ.

The Appellant’s 1^st Application for Verification of Eligibility for Permanent Identity Card (‘VEPIC’)

21. On 13 April 2006, ImmD received the 1^st VEPIC application from Mr DOMINGO through his Solicitors (‘the Solicitors’).  Mr DOMINGO laid claim to the permanent resident status of the Hong Kong Special Administrative Region (‘HKSAR’) under paragraph 2(d) of Schedule 1 to the Immigration Ordinance, Chapter 115 (‘the Schedule’ and ‘the Ordinance’ respectively).

22. On 23 June 2006, an immigration officer conducted an interview with Mr DOMINGO in the presence of a representative from the Solicitors and the content was truly recorded in Exhibit 143.

23. By a letter of 13 July 2006, ImmD informed Mr DOMINGO through the Solicitors that the 1^st VEPIC application of Mr DOMINGO was refused as his claim to permanent resident status of the HKSAR under paragraph 2(d) of the Schedule could not be established.

The Appellant’s 1^st Application for Hong Kong permanent identity card (‘HKPIC’)

24. On 2 August 2006, Mr DOMINGO applied for registration of a HKPIC.  On the same day, the HKPIC application was refused because the Commissioner considered that there was insufficient evidence to show that Mr DOMINGO had the right of abode in Hong Kong.

The Appellant’s 1^st Appeal to the Registration of Persons (‘ROP’) Tribunal

25. On 22 August 2006, this ROP Tribunal received from the Solicitors an appeal lodged by Mr DOMINGO against the decision of the Commissioner not to issue a HKPIC to him on 2 August 2006.

Withdrawal of 1^st Appeal to the ROP Tribunal and the Settlement

26. On 11 October 2007, Department of Justice (‘DoJ’) acting for the Commissioner sent a letter (without prejudice ) to the Solicitors to make an offer that the Director was prepared to grant upon application Mr DOMINGO permission to remain in Hong Kong afresh on time limitation for an initial period of 12 months with no restriction to take up employment exceptionally, subject to the withdrawal of his appeal to the ROP Tribunal.

27. On 28 October 2007, the Solicitors sent a letter to DoJ to seek clarification about the offer.

28. On 1 November 2007, DoJ sent a letter to the Solicitors to make clarification as requested.

29. On 8 November 2007, the Solicitors sent a letter to DoJ to confirm Mr DOMINGO’s acceptance of the Director’s proposal.

30. On 14 November 2007, Mr DOMINGO applied to ImmD for an extension of stay.

31. on 14 November 2007, Mr DOMINGO was granted permission to remain in Hong Kong afresh from 14 November 2007 until 14 November 2008 on time limitation.

32. During his attendance at ImmD on 14 November 2007, Mr DOMINGO was served with a letter informing him that his permission to remain in Hong Kong for 12 months had been granted.  The said letter also included the statement “Please note that in calculating the length of your ordinary residence in the HKSAR, 14 November 2007 will be the starting date.”  Mr DOMINGO acknowledged receipt of a copy of the letter.

33. On 19 November 2007, DoJ sent a letter to the Solicitors to ask about the withdrawal of Mr DOMINGO’s appeal to the ROP Tribunal as agreed.

34. On 3 December 2007, the Solicitors sent letters to the ROP Tribunal and DoJ to confirm Mr DOMINGO’s decision to withdraw his appeal to the ROP Tribunal.

35. By a letter of 11 December 2007, the ROP Tribunal acknowledged the Solicitors’ letter of 3 December 2007.  The Tribunal noted the withdrawal of Mr DOMINGO’s appeal and informed the Commissioner of the same.

The Appellant’s 2^nd Application for VEPIC (Current Application)

36. On 4 March 2008, ImmD received the 2^nd VEPIC application from Mr DOMINGO.  He did not specify in the application form the exact criterion by virtue of which he laid claim to the permanent resident status of the HKSAR.

37. By a letter of 18 July 2008, ImmD informed Mr DOMINGO that his 2^nd VEPIC application was refused as ImmD considered that he was not eligible for the permanent resident status of the HKSAR under paragraph 2(d), nor other provisions, of the Schedule.

The Appellant’s 2^nd Application for HKPIC

38. On 14 August 2008, Mr DOMINGO applied for registration of a HKPIC.  On the same day, the HKPIC application was refused because the Commissioner considered that there was insufficient evidence to show that Mr DOMINGO had the right of abode in Hong Kong.

The Appellant’s 2^nd Appeal to the ROP Tribunal

39. On 3 October 2008, the ROP Tribunal received from the Solicitors an appeal lodged by Mr DOMINGO against the decision of the Commissioner not to issue a HKPIC to him on 14 August 2008.

40. By a letter of 6 October 2008, the ROP Tribunal informed ImmD that the Solicitors had, on behalf of Mr DOMINGO, lodged an appeal to the ROP Tribunal.

Annex II

Appellant: Madam DOMINGO Irene R.

Agreed Facts

The Appellant’s Personal and Family Background

1. Madam DOMINGO Irene R, also known as DOMINGO Irene Raboy and Raboy Irene P. (‘Madam DOMINGO’), was born in the Philippines on 5 April 1960.

2. Madam DOMINGO is a Philippine national.

3. Madam DOMINGO and Mr DOMINGO Daniel L., also known as DOMINGO Daniel De Leon (‘Mr. DOMINGO’) were married on 28 September 1988 and they have three children, namely DOMINGO Daniel R. (‘Dariel’), DOMINGO Darlene R. (‘Darlene’) and DOMINGO Dickson R. (‘Dickson’).

4. Dariel, the first child of Mr and Madam DOMINGO, was born in Hong Kong on 21 September 1992 and has acquired the right of abode in Hong Kong.

5. Darlene, the second child of Mr and Madam DOMINGO, was born in Hong Kong on 29 January 1995 and has also acquired the right of abode in Hong Kong.

6. Dickson, the third child of Mr and Madam DOMINGO, was born in Hong Kong on 8 October 2004.

The Appellant’s Employment History in Hong Kong

First Employment

(from 5 August 1982 to 24 June 1981)

7. On 3 April 1982, Madam DOMINGO signed an employment contract to work as foreign domestic helper (‘FDH’) for Ms TSUNG Howk Lai (‘Mr TSUNG’) in Hong Kong.

8. On 3 June 1982, Hong Kong Immigration Department (‘ImmD’) received Madam DOMINGO’s application for a Hong Kong entry visa to work as FDH for Mr TSUNG.

9. In June 1982, Madam DOMINGO’s entry visa application was approved.

10. On 5 August 1982, Madam DOMINGO arrived in Hong Kong to work as FDH for Mr TSUNG.

11. On 16 August 1982, Madam DOMINGO registered for and was issued a Hong Kong Identity Card (“HKIC”) no. XXXXXXXX.

12. Upon applications, Madam DOMINGO was last granted extension of stay to remain in Hong Kong to work as FDH for Mr TSUNG until 14 July 1984.

13. On 24 June 1982, Madam DOMINGO’s FDH employment contract for Mr TSUNG was terminated.

Second Employment

(from August 1984 to 1 July 1988)

14. On 14 June 1984, Madam DOMINGO signed an employment contract to work as FDH for Ms CHENG Oi Chung Hilda (‘Ms CHENG’) in Hong Kong.

15. In about August 1984, Madam DOMINGO was granted permission to remain in Hong Kong to take up her employment as FDH for Ms CHENG until 6 February 1985.

16. Upon contract renewals and applications for extension of stay, Madam DOMINGO was last granted permission to remain in Hong Kong to work as FDH for Ms CHENG until 6 August 1988 or two weeks after termination of contract, whichever was earlier.

17. On 1 July 1988, Madam DOMINGO was released from her employment as FDH for Ms CHENG.

Third Employment

(from July 1988 to 30 May 1989)

18. On 14 June 1988, Madam DOMINGO signed an employment contract to work as FDH for Mrs BROWN Gabrielle (“Mrs BROWN”) in Hong Kong.

19. In about July 1988, Madam DOMINGO was granted permission to remain in Hong Kong to take up her employment as FDH for Mrs BROWN until 1 January 1989 or two weeks after termination of contract, whichever was earlier.

20. In about December 1988, Madam DOMINGO was granted an extension of stay to remain in Hong Kong to work as FDH for Mrs BROWN until 1 July 1989 or two weeks after termination of contract, whichever was earlier.

21. On 30 May 1989, Madam DOMINGO was released from her employment as FDH for Mrs BROWN.

Fourth Employment

(from July 1989 to 5 July 2003)

22. On 12 June 1989, Madam DOMINGO signed an employment contract to work as FDH for Mr MOSKOWITZ Herbert (‘Mr MOSKOWITZ’), who was also the employer of Mr DOMINGO, in Hong Kong.

23. On 13 June 1989, Madam DOMINGO’s previous condition of stay in Hong Kong (as FDH) was varied.  She was granted permission to remain on visitor condition until 4 July 1989 which was later extended to 24 July 1989.

24. In about July 1989, Madam DOMINGO was granted permission to remain in Hong Kong to take up her employment as FDH in Hong Kong for Mr MOSKOWITZ until 5 January 1990 or two weeks after termination of contract, whichever was earlier.

25. Upon contract renewals and applications for extension of stay, Madam DOMINGO was last granted permission to remain in Hong Kong to work as FDH for Mr MOSKOWITZ until 5 July 2003 or two weeks after termination of contract, whichever was earlier.

26. By a letter of 6 July 2003, Madam DOMINGO was released from her employment as FDH for Mr MOSKOWITZ.

Fifth Employment

(from 30 July 2003 to 18 November 2004)

27. On 5 July 2003, Madam DOMINGO signed an employment contract to work as FDH for Mr LARDY Gilles Pierre (‘Mr LADRY’) in Hong Kong.

28. On 30 July 2003, Madam DOMINGO was granted permission to remain in Hong Kong to work as FDH for Mr LARDY until 30 July 2005 or two weeks after termination of contract, whichever was earlier.

29. On 9 June 2004, Madam DOMINGO was issued with a replacement HKIC no. XXXXXXXX(X).

30. On 18 November 2004, the FDH employment contract between Madam DOMINGO and Mr LARDY was prematurely terminated.

In November/December 2004

31. On 19 November 2004, Madam DOMINGO applied to ImmD for an extension of stay.

32. On 19 November 2004, Madam DOMINGO’s application for extension of stay was refused and she was required to leave Hong Kong on or before 2 December 2004.

33. On 2 December 2004, Madam DOMINGO applied to ImmD for an extension of stay and change of employer.

34. On 2 December 2004, Madam DOMINGO’s application for extension of stay was refused and she was reminded that her permission to remain in Hong Kong only lasted up to 2 December 2004.  She was informed that her departure would be facilitated if she left Hong Kong voluntarily on or before 4 December 2004.

35. On 3 December 2004, Madam DOMINGO again applied to ImmD for an extension of stay.

36. On 3 December 2004, Madam DOMINGO’s application for extension of stay was refused and she was required to leave Hong Kong on or before 7 December 2004.

37. On 7 December 2004, Madam DOMINGO departed Hong Kong.

From December 2004 to May 2005

38. On 2 April 2005, Madam DOMINGO arrived in Hong Kong and was permitted to remain as a visitor until 16 April 2005.

39. On 14 April 2005, Madam DOMINGO departed Hong Kong via. Lo Wu Terminal.

40. On 15 April 2005, Madam DOMINGO arrived in Hong Kong via Lo Wu Terminal and was permitted to remain as a visitor until 29 April 2005.

41. On 24 April 2005, Madam DOMINGO departed Hong Kong via Lo Wu Terminal.

42. On 26 April 2005, Madam DOMINGO arrived in Hong Kong via Lo Wu Terminal and was permitted to remain as a visitor until 10 May 2005.

43. On 8 May 2005, Madam DOMINGO departed Hong Kong for the Philippines.

Sixth Employment

(from 22 June 2005 to 2 September 2006)

44. On 30 April 2005, Madam DOMINGO signed an employment contract to work as FDH for Ms CHAN Ka Yee Sandy (“Ms CHAN”) in Hong Kong.

45. On 12 May 2005, ImmD received madam DOMINGO’s application for a Hong Kong entry visa to work as FDH for Ms CHAN.

46. On 6 June 2005, Madam DOMINGO was issued with a Hong Kong entry visa to take up the FDH employment with Ms Chan.

47. On 22 June 2005, Madam DOMINGO arrived in Hong Kong and was granted permission to remain in Hong Kong to work as FDH for Ms CHAN until 22 June 2007 or two weeks after termination of contract, whichever was earlier.

48. On 2 September 2006, Madam DOMINGO’s employment contact was prematurely terminated by Ms Chan.

From 14 September 2006 to November 2006

49. On 14 September 2006, Madam DOMINGO applied to ImmD for an extension of stay.

50. On 14 September 2006, Madam DOMINGO was permitted to remain in Hong Kong on visitor condition until 10 October 2006.

51. On 9 October 2006, Madam DOMINGO applied to ImmD for an extension of stay.

52. On 9 October 2006, Madam DOMINGO was permitted to remain in Hong Kong on visitor condition until 3 November 2006.

53. On 2 November 2006, Madam DOMINGO applied to ImmD for an extension of stay.

54. On 2 November 2006, Madam DOMINGO was permitted to remain in Hong Kong on visitor condition until 30 November 2006.

55. On 29 November 2006, Madam DOMINGO applied to ImmD for an extension of stay.

56. On 29 November 2006, Madam DOMINGO’s application for an extension of stay was refused and she was reminded that her permission to remain in Hong Kong only lasted up to 30 November 2006.  She was informed that her departure would be facilitated if she left Hong Kong voluntarily on or before 3 December 2006.

57. On 30 November 2006, Madam DOMINGO departed Hong Kong via Lo Wu Terminal.

From December 2006

58. On 2 December 2006, Madam DOMINGO arrived in Hong Kong via Lo Wu Terminal and was permitted to remain as a visitor until 16 December 2006.

59. On 13 December 2006, Madam DOMINGO applied to ImmD for an extension of stay for the reason that her appeal for permanent residence was still pending.

60. By a letter of 27 December 2006, Madam DOMING’s application for an extension of stay was refused and she was informed, among other things, that:

(a) whilst not prepared to grant her an extension of stay, the Director would not insist upon her departure from the HKSAR on or before 10 January 2007 to facilitate her making the necessary departure arrangement.

(b) her presence in the HKSAR during the period concerned would be tolerated, provided that there being no adverse record found against her; and

(c) her continuing presence in the HKSAR after expiry of her limit of stay on visitor status on 16 December 2006 amounted to a breach of her conditions of stay, which would render her liable to prosecution under section 41 of the Ordinance and her immediate enforced departure from the HKSAR.

61. Madam DOMINGO did not leave Hong Kong by 10 January 2007.

62. On 14 November 2007, she was granted permission to remain in Hong Kong afresh a period of 12 months on time limitation [See paragraphs 76-82 below].

The Appellant’s 1^st Application for Verification of Eligibility for Permanent Identity Card (“VEPIC”)

63. On 13 April 2006, ImmD received the 1^st VEPIC application from Madam DOMINGO through her Solicitors (“the Solicitors”), Madam DOMINGO laid claim to the permanent resident status of the Hong Kong Special Administrative Region (“HKSAR”) under paragraph 2(d) of Schedule 1 to the Immigration Ordinance, Chapter 115 (“the Schedule” and “the Ordinance respectively).

64. On 23 June 2006, an immigration officer conducted an interview with Madam DOMINGO in the presence of a representative from the Solicitors and the content was truly recorded in Exhibit 144.

65. By a letter of 13 July 2006, ImmD informed Madam DOMINGO through the Solicitors that the 1^st VEPIC application of Madam DOMINGO was refused as her claim to permanent resident status of the HKSAR under paragraph 2(d) of the Schedule could not be established.

The Appellant’s 1^st Application for Hong Kong permanent identity card [“HKPIC”]

66. On 8 August 2006, Madam DOMINGO applied for registration of a HKPIC.  On the same day, the HKPIC application was refused because the Commissioner considered that there was insufficient evidence to show that Madam DOMINGO had the right of abode in Hong Kong.

The Appellant’s 1^st Appeal to the Registration of Persons (“ROP”) Tribunal

67. On 22 August 2006, the ROP Tribunal received from the Solicitors an appeal lodged by Madam DOMINGO against the decision of the Commissioner not to issue a HKPIC to her on 8 August 2006.

Withdrawal of 1^st Appeal to the ROP Tribunal and the Settlement

68. On 11 October 2007, Department of Justice (“DoJ”) acting for the Commissioner sent a letter (without prejudice) to the Solicitors to make an offer that the Director was prepared to grant upon application Madam DOMINGO permission to remain in Hong Kong on time limitation for an initial period of 12 months with no restriction to take up employment exceptionally, subject to the withdrawal of her appeal to the ROP Tribunal.

69. On 28 October 2007, the Solicitors sent a letter to DoJ to seek clarification about the offer.

70. On 1 November 2007, DoJ sent a letter to the Solicitors to make clarification as requested.

71. On 8 November 2007, the Solicitors sent a letter to DoJ to confirm Madam DOMINGO’s acceptance of the Director’s proposal.

72. On 14 November 2007, Madam Domingo applied to ImmD for an extension of stay.

73. On 14 November 2007, Madam DOMINGO was granted permission to remain in Hong Kong afresh from 14 November 2007 until 14 November 2008 on time limitation.

74. During her attendance at ImmD on 14 November 2007, Madam DOMINGO was served with a letter informing her that her permission to remain in Hong Kong for 12 months had been granted.  The said letter also included the statement “Please note that in calculating the length of your ordinary residence in HKSAR 14 November 2007 will be the starting date.” Madam DOMINGO acknowledged receipt of a copy of the letter.

75. On 19 November 2007, DoJ sent a letter to the Solicitors to ask about the withdrawal of Madam DOMINGO’s appeal to the ROP Tribunal as agreed.

76. On 3 December 2007, the Solicitors sent letters to the ROP Tribunal and DoJ to confirm Madam DOMINGO’s decision to withdraw her appeal to the ROP Tribunal.

77. By a letter of 31 December 2007, the ROP Tribunal acknowledged the Solicitors’ letter of 3 December 2007.  The Tribunal noted the withdrawal of Madam DOMINGO’s appeal and informed the Commissioner of the same.

The Appellant’s 2^nd Application for VEPIC (Current Applications)

78. On 4 March 2008, ImmD received the 2^nd VEPIC application from Madam DOMINGO.  She did not specify in the application form the exact criterion by virtue of which she laid claim to the permanent resident status of the HKSAR.

79. By a letter of 18 July 2008, ImmD informed Madam DOMINGO that her 2^nd VEPIC application was refused as ImmD considered that she was not eligible for the permanent resident status of the HKSAR under paragraph 2(d), nor other provisions, of the Schedule.

The Appellant’s 2^nd Application for HKPIC

80. On 14 August 2008, Madam DOMINGO applied for registration of a HKPIC.  On the same day, the HKPIC application was refused because the Commissioner considered that there was insufficient evidence to show that Madam DOMINGO had the right of abode in Hong Kong.

The Appellant’s 2^nd Appeal to the ROP Tribunal

81. On 3 October 2008, the ROP Tribunal received from the Solicitors an appeal lodged by Madam DOMINGO against the decision of the Commissioner not to issue a HKPIC to her on 14 August 2008.

82. By a letter of 6 October 2008, the ROP Tribunal informed ImmD that the Solicitors had, on behalf of Madam DOMINGO, lodged an appeal to the ROP Tribunal.