HUANG BINGZHI v. IMMIGRATION TRIBUNAL AND ANOTHER

HCAL 1718/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATION LAW LIST
NO. 1718 OF 2000

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J U D G M E N T

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1. This is an application for leave to judicial review the decisions of the Director of Immigration (the Director) refusing to acknowledge that the applicant, Huang Bingzhi enjoys the right of abode in Hong Kong and ordering him to be removed from Hong Kong.

2. The applicant is a Chinese Citizen born in Guangdong on 26th June 1960. He arrived in Hong Kong as an imported worker under the 1992 Labour Scheme on a two years contract to work as a gardener for the Bluet Garden and was permitted to remain in Hong Kong until 1st November 1993 which was then extended to 1st November 1994.

3. On 14th December 1993, the applicant sustained serious injuries in the course of his employment and had to be admitted to hospital for operation. He also had to receive physiotherapy treatments between 1994 and 1996. The applicant received further extension to remain in Hong Kong until 1st February 1995 with a variation of immigration status from employment to that of visitor.

4. The applicant then made repeated applications for extension of time to remain in Hong Kong in order to pursue his claim for compensation from his employer. Despite the settlement of his claim with his employer in March 1999, the applicant still applied for extensions of stay.

5. On 6th May 1999, the Director of Legal Aid and Messrs. K.Y. Lo & Co., who were then acting for the applicant in his claim for compensation requested an extension for 3 months on the basis that such period "was necessary and would benefit the expeditious disposal of all the outstanding matters in the proceedings."

6. The Director then granted an extension until 10th July 1999.

7. On 16th August 1999, Messrs. K.Y. Lo & Co., again on behalf of the applicant seek an extension for 2-3 months to deal with the question of costs in connection with the compensation proceedings which application was supported by a Legislative Council member, Ms. Chan Yuen Han. The Director then extended the limit of stay until 10th September 1999.

8. The applicant did not leave Hong Kong on or before 10th September 1999. Instead, on that very day, Messrs. K.Y.Lo & Co. asked for a further extension of 6 months for the applicant on the basis that it would be more convenient for them to resolve the costs issue if the applicant remained in Hong Kong as the applicant needed crutches, the journey to and from the Mainland would cause hardship.

9. The Director decided to grant another extension until 30th September 1999, which was meant to be final.

10. The applicant again submitted a new extension application dated 28th September 1999 supported by Messrs. K.Y. Lo & Co., requesting another 6 months' extension. The application was refused and the applicant was given until 2nd October 1999 to leave Hong Kong.

11. The applicant did not leave Hong Kong but reappeared on 11th October 1999 seeking another extension. Messrs. K.Y. Lo & Co. also wrote a letter stating that the applicant had an accident on 1st October 1999 and had to be hospitalized until 10th October 1999. Messrs. K.Y. Lo & Co. asked for a further 3 months extension. The application was refused.

12. When the Director served the letter of refusal on the applicant, he indicated that he had applied for a judicial review of the decision of the Director.

13. Indeed, the applicant had on 12 October 1999 applied for a judicial review (the first JR application) asking for extension of time to stay in Hong Kong until he obtained payment of his compensation.

14. Initially, the applicant simply asked for further extension of time. At the hearing, he suggested that he had acquired the right of a permanent resident in Hong Kong.

15. The first JR application was heard by me on 21st February 2000 and was dismissed on the same day. In the judgment dismissing the application, I had made the following observation:

"....But the undisputed facts indicate that the applicant arrived in Hong Kong on 1st November 1992 and the Director only allowed him to stay in Hong Kong until 2nd October 1999, the latest. On such undisputed facts, the Applicant's period of ordinary residence in Hong Kong is less than 7 years. Even adopting the most generous approach towards the applicant's case, he does not qualify as a permanent resident of Hong Kong.........."

16. In the interim period, the applicant had submitted application for verification of eligibility for permanent identity card thrice on 23rd November 1999, 6th January 2000 and 28th February 2000. The applications were all refused because the applicant had not established that he had ordinarily resided in Hong Kong for a continuous period of not less than 7 years.

17. On 20th April 2000, the Director made a Removal Order against the applicant requiring him to leave Hong Kong. The applicant appealed against such decision to the Immigration Tribunal.

The appeal was made on the basis that on 10th September 1999, the applicant had been granted an extension of stay until 10th November 1999. The Director had no power to shorten the period of stay as only the Chief Executive had the power to do so.

18. The applicant seek to rely on the following sections of the Immigration Ordinance:

"s.11(5A) An Immigration Officer or a Chief Immigration Assistant may at any time by notice in writing to any person...............

(a) cancel any condition of stay in force in respect of such person;

(b) .............................

(c) vary any limit of stay in force in respect of such person by enlarging the period during which such person may remain in Hong Kong.

s.11(6) The Governor may at any time vary any limit of stay in force in respect of any person by curtailing the period during which such person may remain in Hong Kong, and the Director shall in writing notify such person of any such variation."

19. The argument failed to convince the Immigration Appeal Tribunal and the appeal was dismissed, hence the present judicial review application.

20. In this application, the same argument is being pursued.

21. It is perhaps necessary to set out the circumstances in which the applicant claims to have been granted on 10th September 1999 an extension of stay until 10th November 1999.

22. On or about the 16th August 1999, the applicant was granted an extension of stay until 10th September 1999. On 10th September 1999, the applicant approached the Entry Visa Section of the Immigration Department to apply for an extension of stay. Immigration Officer Kwok Chi Wing handled his case. Mr. Kwok collected the travel document of the applicant and issued to him a card (I.D. 359)(the White Card) with the following writing in both the official languages on it:

"Immigration Department, Hong Kong

Section/Office: Entry Visa Section

Application Ref.: VC/W/316799

Date of Application: 10 Sept 1999

Name: HUANG BING ZHI

Please call again on 10-Nov-99 (Chinese character 'before' inserted)(making the sentence to mean please call again before 10-Nov-99) with this card.

We will notify you by letter when to call again.

All enquiries should be made directly to the Information Office, Tel

28246111 or Fax: 2877711 or E-mail Address: enquiry@immd.gcn.gov.hk

or Internet Home Page Address http://www.info.gov.hk/immed/

I.D. 359(7/97) HK$135- 28294122 Officer Kwok."

23. The suggestion is that the White Card was a valid notice in writing informing the applicant that his limit of stay had been extended to 10th November 1999 as it was issued by an immigration officer of the Entry Visa Section of the Immigration Department addressed to the applicant with his particulars on it. The White Card also specified a period from 10th September 1999 to 10th November 1999 and the applicant's travel document was also collected from him.

24. As the applicant had been granted extension of stay until 10th November 1999, the subsequent decisions by the Director to grant extension of stay until 28th of September 1999 and then 2nd October 1999 were ultra vires.

25. Counsel, in their written submissions, initially confine their arguments to the nature and effect of the White Card. Out of abundance of care and at the suggestion of the court, Counsel also consider the issue of whether the applicant had overstayed in Hong Kong when one of the extensions was granted until 10th July 1999 and the applicant did not apply for another extension until 16th August 1999 as well as the issue of whether the applicant should be subject to the provision under section 2(4) of the Immigration Ordinance when it is agreed that he came to Hong Kong in 1992 as a contract worker under a Government importation of labour scheme.

26. In respect of the 1st of the two issues, there are the following agreed facts: -

"1. In early 1999, Mr. Huang was using a valid Chinese passport which was not endorsed with a re-entry permit. The passport had an expiry date of 17 August 1999. His last Hong Kong permission on this passport expired on 10 July 1999.

2. On 8 July 1999 he applied by filling an ID 91 but left date to which he was requesting extension blank. He was aware that he would need to supply the Director of Immigration with a valid travel document - but retained his passport in order to extend/renew/replace it.

3. On 16 August 1999 he supplied a letter from himself, another letter from K.Y. Lo & Co. and a further letter from Legislative Councillor Ms. Chan Yuen Han. His letter of 16 August 199 informs that Ms. Chan will support his application for extension of two to three months and that Ms. Chan had faxed a letter about his travel document to Department of Consular Affairs of the Office of the Commissioner of the Ministry of Foreign Affairs of the People's Republic of China in Hong Kong Special Administrative Region.

4. The application of 8 July 1999 remains unsupported by a travel document until 3 September 1999 when a staff member of the Ministry delivers to Immigration Department a Chinese Travel Permit endorsed with re-entry endorsement allowing him to return to the People's Republic of China on or before 10 September 1999.

5. On 8 September 1999, Director of Immigration extends visa to expire on 10 September 1999. This is on the basis of application form of 8 July 1999 now supported as required with a valid travel document.

6. He returns to Immigration Department on 10 September 1999 and submits a new ID 91 on which the proposed new limit of stay is left blank.

7. Because the re-entry expired on 10 September 1999, Mr. Huang was given the ID 91 with his travel document and other supporting documents in order to approach the Commissioner of the Ministry of Foreign Affairs for extension of re-entry permit.

8. The Commissioner of Ministry of Foreign Affairs returns the travel document and ID 91 and the supporting documents on or about 15 September 1999 to the Director of Immigration. The travel document has a new re-entry endorsement on 10 October 1999.

9. Immigration Department on 22 September 1999 decided to extend the limit of stay for a final period to 30 September 1999 for departure. Visa was endorsed on travel document on 23 September 1999."

27. The Director granted an extension to the applicant which expired on 10th July 1999 and another extension was not granted until 8th September 1999 due to the unavailability of a valid travel document, the period between 10th July 1999 and 10th September 1999 was not to be treated as a period of unlawful stay and a break in his continuous ordinarily residence in Hong Kong. (Sae-Ang Paisarn v. Director of Immigration [1989] 1 HKLR 205.)

28. But it is agreed that when the applicant came to Hong Kong on 1st November 1992, he was a contract worker under a Government importation of labour scheme. His status was only changed to that of a visitor in February 1995.

29. The Immigration Ordinance provides under section 2:

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

(a) during any period in which he remains in Hong Kong-

(i) ..............

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

(iii) ................

(iv) ....................

(v) while employed as a contract worker, who is from outside Hong Kong, under a Government importation of labour scheme; or

(vi) ..............................

(vii) .............................

(viii) ...........................

(b) during any period, whether before or after the commencement of this Ordinance, of imprisonment or detention pursuant to the sentence or order of any court.

(5) Subsection (4)(a) does not apply to a person-

(a) who acquired the right of abode in Hong Kong before 1 July 1997; or

(b) ..............................................."

30. Mr. Ma, on behalf of the applicant, suggests that section 2(4) of the Immigration Ordinance was only added in 1997 by which time the applicant had already obtained certain accrued right or interest which should not be affected by the amendment to the Immigration Ordinance in 1997.

31. Mr. Ma relies on section 23 of the Interpretation and General Clauses Ordinance Cap.1 and Yew Bon Tew @ Yong Boon Tiew v. Kenderaan Bas Mara [1982] 3 W.L.R. 1026.

32. Section 23 of the Interpretation and General Clauses Ordinance provides:

"Where an Ordinance repeals in whole or in part any other Ordinance, the repeal shall not-

(a) .......................

(b) .......................

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any Ordinance so repealed;.............."

33. Apart from the statutory provision, "there is of course at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used."

34. But what was the "right" that had been acquired by or accrued to the applicant in 1997 when the Immigration Ordinance was amended ?

35. Under Schedule 1 of the Immigration Ordinance, one category of permanent resident of Hong Kong is " 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."

36. There is in my view no acquired or accrued right of permanent resident until a continuous period of ordinarily residence of not less than 7 years has been completed.

37. Section 2(5) of the Immigration Ordinance specifically provides that section (4)(a) does not apply to a person who acquired the right of abode in Hong Kong before 1 July 1997. It must necessarily means that it does apply to any person who had not acquired the right of abode in Hong Kong before 1 July 1997 and the applicant must fall within such category.

38. In view of the language used in the Immigration Ordinance, the applicant must be subject to section 2(4)(v) and the initial period between 1 November 1992 and 1 February 1995 when he resided in Hong Kong as a contract worker should not be counted as a period of ordinary residence.

39. In any event, the suggestion that the White Card constituted a valid notice in writing extending the limit of stay until 10 November 1999 is in my view completely unarguable.

40. I need not repeat the contents of the affirmations/affidavits of the various immigration officers, but the White Card in question clearly is an acknowledgement of the application of the applicant for extension and it set a time frame within which the decision will be made and administered.

41. The Immigration Department has to deal with numerous applications of different nature everyday and many of such applications, for one reason or another cannot always be decided on the spot and the White Card tells the applicant when to attend so that the decision on the application can be communicated.

42. The system has been in place for almost 30 years and has worked well.

43. The Director must be given a free hand in carrying out his duties in a way considered by him to be expeditious and convenient. It will indeed be very sad if a well-established administrative measure is to be disrupted at the whim of the court as a result of "ingenious" argument of counsel.

44. The White Card itself provides no indication that the application for extension has been granted. Indeed if the application has been granted, there will be no need for the applicant to call again as suggested in the White Card itself.

45. The applicant had in the past years made numerous applications for extension of stay. Each time he would be given a White Card acknowledging his application. When the applications were granted, the extensions would be endorsed in his travel document.

46. If a valid extension can take the form of the White Card as suggested by the applicant, the complication in connection with his application for extension in July 1999 because of the expiration of the applicant's travel document would not arise.

47. In the affirmation in support of his application, the applicant said: "On 10th September 1999 when I received the card (ID359) from immigration officer Kwok Chi Wing, I honestly and truly believe that I was allowed to stay in Hong Kong until 10th November 1999." Such assertion is extremely "bold" but clearly inconsistent with his behaviours at the material time.

48. On 10th October 1999, the applicant was still writing to the Director saying that "I would report to your Department to apply for extension of stay as soon as I was discharged from the hospital" and that the Director should "take into account of the above when considering my case".

49. In a letter to the Director dated 28th September 1999, Messrs. K.Y. Lo & Co., solicitors for the applicant wrote: -

"We refer to the above matter and are instructed that our client's visa will expire on 30th September 1999. Although the parties have reached settlement in the above matter, the issue of costs herein has still to be dealt with. We shall therefore be grateful if you will render assistance to our client in his application for the extended stay in Hong Kong for a period of six months."

50. Those matters are clearly inconsistent with the applicant's stance in the present application.

51. The Director had in no uncertain terms informed the applicant that his limit of stay had been extended for a final period to 30th September 1999 and his travel document was returned to him on 23rd September 1999.

52. The applicant had not made similar claim in the first JR application.

53. In my view the suggestion that the White Card constitutes a valid extension of stay is an afterthought and a desperate attempt to achieve what is clearly unachievable.

54. The Director's decisions that the applicant has not ordinarily resided in Hong Kong for 7 years and that he should be removed are lawful and rational. There is no procedural irregularity. The Appeal Tribunal was clearly right in confirming such decisions.

55. There is no basis upon which the court can interfere with those decisions.

56. The application must therefore be dismissed and I so order.

57. I also make an order nisi that the applicant is to pay the costs of the Director to be taxed if not agreed. The order nisi will be made absolute 14 days after the handing down of this judgment.