LAI YAU CHIK v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 288/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 288 OF 2001

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J U D G M E N T

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1. This is a judicial review application pursuant to the leave granted on 22 February 2001 by Cheung J to Lai Yau Chik (the applicant) against the decision of the Director of Immigration (the Director) who refused his application for a certificate of entitlement (the certificate) to the Right of Abode in HKSAR and the decision of the Immigration Tribunal (the Tribunal) that dismissed her appeal.

2. The applicant was born in Mainland China on 10 June 1986. Her father Lai Kar Shing (the father) claims to have come to Hong Kong illegally from the Mainland on 18 April 1979. On 24 May 1979, the father applied to the Registration of Persons Department for an identity card and was allocated an identity card number (H01989) the same day. H01989 was recorded in the Form R.O.P 3b (Rev.) as a future I/D No. and paragraph 2 of the Form R.O.P. 3b stated: -

"You are required to report immediately to the Immigration Branch Office (clearance) in this building ( ) and obtain in the panel below a clearance endorsement. You are then required to report to the Immigration Department for investigation. An Identity Card will not be issued until you have obtained an endorsement from the Immigration Branch Office (clearance) and a Hong Kong Entry Permit From the Director of Immigration"

3. The Endorsement panel consist of two section, one for "Immigration Branch Office (Clearance)" and one for "Investigation Section Immigration Department."

4. Paragraph 4 of the Form R.O.P. 3b further stated: -

"If you cannot obtain an endorsement from the Immigration Branch Office (clearance) and a Hong Kong Entry Permit within the collectable period, you must return to this Branch Office within 5 days after the stated expiry date to the period extended. If you fail to do this, the Identity Card will be cancelled and you must register again within 30 days from the date of cancellation."

5. The "Collectable Period" was stated as "From 20 November 1979 to 23 January 1980."

6. As instructed, the father reported to the Immigration Branch Office (clearances) and obtained a clearance endorsement on 26 May 1979.

7. On 27 May 1979, the father applied to the Immigration Department for an Entry Permit to remain in Hong Kong and the application contained a declaration by the father as follows: -

"I further declare that I have never had or held and do not have or hold any form of travel document and do not have an identity card or other evidence that I am legally in Hong Kong."

8. On 9 July 1979 the father was given an Entry Permit by the Immigration Department that was stated to be "good for a single journey to Hong Kong from China." The father was in fact not asked to leave Hong Kong and then return by using the Entry Permit. He was however granted limited stay initially until 8 October 1979.

9. On 21 November 1979, the father was issued with the Hong Kong Identity Card Number H01989 by the then Registration of Persons Office.

10. It is the applicant's contention that when she was born on 10 June 1986, the father had been ordinarily residing in Hong Kong for a continuous period of not less than seven years and was already a permanent resident of HKSAR under Article 24 of the Basic Law.

11. She is therefore also a permanent resident of the HKSAR under paragraph 2(c) of schedule 1 of the Immigration Ordinance "being a person of Chinese nationality born outside Hong Kong before or after the establishment of the HKSAR to a parent who, at the time of birth of that person, was a Chinese citizen falling with category (a) or (b)." Category (b) covers "a Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region."

12. With a view to establish her permanent resident status under paragraph 2(c) of schedule 1 of the Immigration Ordinance, the applicant applied for the certificate under Section 2AB of the Immigration Ordinance.

13. The applicant's application was rejected on 11 March 2000 by the Director who in a letter informed the applicant that: -

"we are not satisfied that such supporting documents provided by you are sufficient to prove that, at the time of your birth, your father, Mr Lai Kar Shing, had ordinarily resided in Hong Kong for a continuous period of not less than seven years."

14. The Tribunal confirmed the decision of the Director on 23 November 2000.

15. The issue in this application is whether the Director and the Tribunal were right.

16. The applicant's contention rest on the premises that the father's ordinary residence in Hong Kong started from 24 May 1979 or 26 May 1979 and not from 9 July 1979. Hence by the time the applicant was born on 10 June 1986, the father had been an ordinary resident in Hong Kong for more than 7 years and was thus a permanent resident.

17. When the matter went before the Tribunal, Mr Pun, on behalf of the applicant made the following submissions: -

1. Section 11 of the Immigration Ordinance does not require Permission to remain to be given in a specific way;

2. Permission can be given either expressly, or by implication from words or conduct falling short of an express permission Re Wong Shu-hung and Immigration Tribunal [1985] HKLR 463;

3. The "clearance" given to the father on 26 May 1979 was evidence of an express permission;

4. Alternatively, the allotment of an identity card number on 24 May 1979 and the "clearance" on 26 May 1979 showed that, at least by the latter date, the Director had "evinced an intention" to grant the father authority to remain.

18. The Tribunal did not accept Mr Pun's submission. In its Notice of Determination, the Tribunal concluded that the Form R.O.P. 3b was clearly not an authority to remain granted by the Director nor did it evince an intention to grant authority to remain. The document required the father to report to the Immigration Department for investigation as to his suitability for a grant of an authority to remain.

19. The Tribunal also concluded that the clearance endorsement was not an authority to remain, but just a preliminary step to be taken before the investigation could begin.

20. Despite the declaration by the father in his application for an Entry Permit to remain in Hong Kong dated 27 May 1979, the Tribunal did not draw any adverse inference against the father that he believed he was then in Hong Kong illegally. But the Tribunal drew the inference that the application form was designed for use by those who had no evidence that they were legally in Hong Kong and that it was to be used by those who had not been granted authority to remain.

21. The Tribunal also traced the Entry Permit application of the father and noted a minute dated 4 July 1979 which recorded "ROP 'Cleared' case for approval of stay on limitation please." and another minute dated 9 July 1979 which recorded that the Entry Permit was issued on that date.

22. The Tribunal concluded that such records only showed that the father had approached the Registration of Persons Office between 24 May 1979 and 4 July 1979 and was investigated and processed for his eligibility for authority to remain. The Tribunal also concluded that the father did not have authority, express or implied to remain in Hong Kong during such period.

23. The issue in question is simple and straightforward.

24. Did the father's ordinary residence in Hong Kong commence on 24 May 1979 or 26 May 1979 or did it only commence on 4 July 1979 or 9 July 1979?

25. If it commenced on 24 May 1979 or 26 May 1979, the father would have been a permanent resident of Hong Kong at the time when the applicant was born on 10 June 1986. The applicant would be entitled to be granted the certificate. If the father's ordinary residence only commenced on 4 July 1979 or 9 July 1979, he was not yet a permanent resident of Hong Kong at the birth of the applicant and she would not be entitled to the certificate.

26. Section 1(4) of the Immigration Ordinance in force at the material times provided: -

"For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong-

(a) during any period after the commencement of this Ordinance in which he remains in Hong Kong-

(i) without the authority of the Director, after landing unlawfully; or

(ii) ............................................................"

27. Did the father remain in Hong Kong with or without the authority of the Director before 4 July 1979 or 9 July 1979 ?

28. Mr Pun suggested that he had the authority and both the Director and the Immigration Tribunal erred in law when they held that he did not have authority. Mr Pun further suggested that when the Director and the Tribunal made the decisions as they did, they had failed to take into account the "Touch Base Policy" (the Policy) which was in operation at the material time.

29. The Policy permitted a person who entered Hong Kong illegally from Mainland China to stay in Hong Kong. But a distinction must be drawn between someone who claimed to be entitled to the benefit of the Policy and someone whose entitlement had been established.

30. Only the latter could be said to have been granted permission to remain in Hong Kong by virtue of the Policy but not the former. Mr Pun was right to suggest that the father might be given permission to remain in Hong Kong under the Policy, but only after his entitlement had been established. Even if the father's case was covered by the Policy, it did not mean that the father must be given the right to remain in Hong Kong. He only had a legitimate expectation that the Policy would be fairly applied to his situation but the Director still had the discretion of not granting him the right to remain in Hong Kong if it was considered right to do so.

31. The Policy had not been ignored or else the father would not have been granted the permission to stay in Hong Kong. The position of the Director and the Tribunal was that the father's entitlement under the Policy was only established on 4 July 1979 or 9 July 1979 after the requisite enquiry and investigation.

32. Mr Pun had placed heavy reliance on the evidence of the Immigration Officer, Madam Hui that the Form R.O.P 3b would have given the father immunity and he would not be arrested and returned to Mainland China. I am not too sure that was in fact what Madam Hui said.

33. When it was suggested to her that after the father had registered himself with the Registration of Persons Department and after his status had been cleared, he would not be sent back to China anymore. Madam denied the suggestion. She also expressly denied the suggestion that after the clearance endorsement on the Form R.O.P. 3b and before the father was actually granted the permission to stay on 9 July 1979, he would never be sent back to China whatsoever.

34. Even if Madam Hui did say that with the endorsement on the R.O.P. 3b, the father would not been arrested and sent back to China, that did not mean the father had been granted the authority to stay.

35. Very often before a person's immigration status has been verified, he would not been arrested and repatriated and his physical presence in Hong Kong would be tolerated. That does not mean he has been granted the authority to stay. The fallacy of Mr Pun's suggestion is that it seeks to accord the right to a person who is only seeking to establish that he has such a right.

36. The simple fact was: the father's entitlement under the Policy and his right to remain in Hong Kong was only established in July 1979.

37. I accept that Madam Hui's evidence was not as clear as one hoped it to be and the confusion was further compound by the "Clearance Endorsement" on the From R.O.P. 3b. Mr Pun keeps repeating that the father was "cleared" on 26 May 1979 as if his status and the authority to stay had been established on that day.

38. With respect, the evidence simply does not support such a view.

39. Madam Hui, when asked about the "clearance endorsement", said it was part of the registration process and that "the clearance endorsement appeared on the form............was an endorsement showing that Mr Lai attended the Immigration Clearance Office and......an endorsement was put .......to show that he attended the office....... It was stated clearly in paragraph 2 that he had to report to the Immigration Office clearances. It was a requirement for him to go there and attend the interview and for investigation and the process was completed."

40. Madam Hui further said paragraph 3 of the Form R.O.P. 3b also required the production of a travel document of Hong Kong entry permit before an identity card would be issued and the "Clearance endorsement was not meant for giving any stay to Mr Lai."

41. She also confirmed that between the time of the father's illegal arrival and the time when he was granted permission to stay, there was an investigation process and that it would not necessarily mean that the father would be granted approval in July 1979 as a matter of course.

42. The Form R.O.P. 3b could not have intended to grant to the father the right to stay. It was issued on 24 May 1979 when the father first attended the Registration of Persons Office.

43. The "clearance endorsement" as the Tribunal rightly observed, could not be an authority to remain either as paragraph 2 of the form clearly indicated that after obtaining the clearance endorsement, the father would then have to report to the Immigration Department for investigation. The Tribunal asked the rhetoric question: "Investigation of what?" and then said "The answer must be an investigation as to his suitability for a grant of an authority to remain."

44. Paragraph 2 of the Form R.O.P. 3b also clearly stipulated "an identity card will not be issued until you have obtained an endorsement from the Immigration Branch Office (the clearance) and a Hong Kong Entry Permit from the Director of Immigration."

45. There was overwhelming evidence to justify the Tribunal's conclusion that the "clearance" was a preliminary step to take before the investigation as to the father's suitability to be granted the authority to remain could begin.

46. Indeed, the father did not apply to remain in Hong Kong until making his application to the Immigration Department for an Entry Permit on 27 May 1979 on which date the father had declared that he had no evidence that he was legally in Hong Kong.

47. Mr Pun in his submission to this court repeatedly emphasized that not only was the clearance endorsement affixed on the Form R.O.P. 3b on 26 May 1979, the internal documents of the Immigration Department clearly indicated that the applicant's case had been cleared and hence his right to remain in Hong Kong established on that date.

48. Mr Pun referred to the record card relating to the Identity Card No. H01989 held in the Registration of Persons Office which showed that the father had been "Cleared by S.I.O. on 26 May 1979."

49. In the Immigration Clearance Office Processing Form which showed that the background of the father had been looked into, there was a recommendation by the Immigration Officer Mr T C Chan that the father's case was cleared. A Senior Immigration Officer, Mr C K Siu who put a 'tick' against the box "Cleared ex China", also accepted Mr Chan's recommendation.

50. Mr Pun contended that an Immigration Officer had already granted the father permission to remain in Hong Kong on 26 May 1979 under Section 11 of the Immigration Ordinance.

51. With respect, Section 11 of the Immigration Ordinance concerns the permission to land in Hong Kong only and does not deal with permission to remain at all.

52. Section 11 of the 1979 edition of the Immigration Ordinance provides: -

"(1) an immigration officer may, on the examination under section 4(1)(a) of person who by virtue of section 7 may not land in Hong Kong without the permission of an immigration officer, give such person permission to land in Hong Kong or refuse him such permission."

53. And section 4 (1) of the Immigration Ordinance further provides: -

"(a) subject to subsection (2), examine any person on his arrival in or prior to his departure from Hong Kong;................

and a person who is so examined may be required by an immigration officer to submit to further examination."

54. In fact the authority for illegal immigrant to remain in Hong Kong is governed by section 13 of the Immigration Ordinance which provides: -

"The Director may at any time authorize a person who landed in Hong Kong unlawfully to remain in Hong Kong, subject to such conditions of stay as he thinks fit, whether or not such person has been convicted of that offence, and section 11(5), (5A) and (6) shall apply in the case of any such person as it applies to a person who has been given permission to land in Hong Kong under section 11(1)."

55. As can be seen from sections 13 and 2(4)(a)(i) of the Immigration Ordinance, the authority to remain in Hong Kong to an illegal immigrant can only be granted by the Director. Under the definition section, "'Director' means the Director of Immigration, the Deputy Director or Immigration and any assistant director of immigration."

56. An immigration officer or a senior Immigration Officer have no power to grant to an illegal immigrant the authority to remain in Hong Kong.

57. To suggest that the father had been granted the authority to remain in Hong Kong by either Mr T C Chan, an immigration officer or Mr C K Siu, a Senior Immigration Officer on 26 May 1979 is a total disregard for the statutory scheme within which immigration matters operate.

58. Indeed in so far as the father's application to remain in Hong Kong is concern, it was only approved by the Assistant Principal Immigration Officer (Investigation Section) who accepted the recommendation of Mr T C Chan as approved by Mr C K Siu. (Exhibit Bundle pages 21 and 22) The decision by the Assistant Principal Immigration Officer was made on 4 July 1979 and was communicated to the father on 9 July 1979 when he was granted the Entry Permit.

59. Strictly speaking, an Assistant Principal Immigration Officer does not fit the definition of "Director" under the Immigration Ordinance. But when Mrs Hui gave evidence before the Tribunal, she had specifically referred to this aspect when she said: -

"It means that the case officer had put up the case to the proper authority that is APAIO(I) that is the Assistant Principal Immigration Officer (Investigation Section) to seek permission to allow Mr Lai to stay on limitation."

60. Mrs Hui's evidence on this aspect was never challenged.

61. The evidence demonstrated clearly that the authority to remain in Hong Kong granted to the father was only granted by the Director under section 13 of the Immigration Ordinance on 4 July 1979 and was communicated to the father on 9 July 1979.

62. The ordinary residency of the father did not commence on 26 May 1979. It only commenced at the earliest on 4 July 1979.

63. The Tribunal also carefully went through the history of the application by the father which eventually led to the granting of an Entry Permit on 9 July 1979.

64. The Tribunal was right in concluding that when the applicant was born on 10 June 1986, the father had not been ordinarily residing in Hong Kong for a continuous period of not less than seven years.

65. The courts only have a very limited role to play in judicial review of administrative decisions.

66. There is no valid basis for the suggestion that the Director and the Tribunal had failed to take into account the Policy. The decision that the father did not have authority to remain in Hong Kong until 4 July 1979 or 9 July 1979 is correct.

67. There is no procedural irregularity and the decisions in question are not Wednesbury unreasonable. There is no basis to interfere with the decisions of the Director and the Tribunal.

68. The application must therefore be dismissed with costs to be taxed if not agreed.

69. The applicant's own costs are to be taxed on Legal Aid Regulations.

70. The orders on costs are orders nisi and will be made absolute 14 days after the handing down of the judgment.