LEUNG KIT YEE KITTY on behalf of MASTER LAMB NICHOLAS EDWARD, an infant v. REGISTRATION OF PERSONS TRIBUNAL AND ANOTHER

HCAL 103/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 103 OF 2011

------------------------

------------------------

J U D G M E N T

------------------------

A. INTRODUCTION

1. This is the applicant’s judicial review challenging the following two decisions:

(1)   The decision of the Commissioner of Registration (“the Commissioner”) made on 2 September 2010 refusing to issue a Hong Kong permanent identity card to the applicant.  I would call this “the Commissioner’s Decision”.

(2)   The decision of the Registration of Persons Tribunal (“the Tribunal”) made on 28 September 2011 dismissing the applicant’s appeal against the Commissioner’s Decision.  I would call this “the Tribunal’s Decision”.

2. In this application, the applicant asks for an order of certiorari to quash the Commissioner’s and Tribunal’s Decisions.

3. As usual, the Tribunal as the 1^st respondent takes a neutral stance to the application, and has not taken any steps herein.  The real opponent to this judicial review is the Commissioner as the 2^nd respondent.

4. I will first set out the relevant background leading to this application.

B.    THE BACKGROUND

5. The applicant was born in Canada on 3 April 2008 and was issued a Canadian passport on 2 September 2008.  He is now 4 years old or so.

6. The applicant’s parents (“the parents”) are both of Chinese descent and born in Hong Kong.  They are holders of Hong Kong permanent identity cards.  It is not disputed that they are and were Chinese citizens at the time of the applicant’s birth.

7. In 2005, the parents immigrated to Canada under the skilled worker category and were issued permanent resident cards by the Canadian authority.  On the other hand, during their residence in Canada, the parents still held a bank account and their MPF account in Hong Kong, while the applicant’s mother continued to maintain a flat in Hong Kong and pay all its outgoings.  They had also kept their Hong Kong driving licences.

8. As mentioned above, the applicant was born during the time when the parents were residing in Canada as permanent residents.

9. The parents were however unable to find employment in Canada.  They eventually returned to Hong Kong in December 2009 with the applicant, as the applicant’s father found a job in Hong Kong.  The applicant entered Hong Kong on the strength of his Canadian passport.

10. On 28 December 2009, the applicant’s mother applied on behalf of the applicant for Verification of Eligibility to a Hong Kong Identity Card.  This was rejected by the Director of Immigration.

11. The applicant’s mother then applied on behalf of the applicant for registration of a permanent identity card under the Registration of Persons Regulations (Cap 177A).  The Commissioner refused the application by way of a letter dated 2 September 2010.  That is the Commissioner’s Decision.

12. The applicant appealed the Commissioner’s Decision to the Tribunal.

13. The Tribunal heard the appeal on 23 June 2011. 

14. Before both the Commissioner and the Tribunal, the applicant contended that he was a Hong Kong permanent resident under Article 24(3) of the Basic Law, as he is a person of Chinese nationality born outside Hong Kong of the parents, who are Chinese citizens born in Hong Kong before the establishment of the Hong Kong SAR.

15. Article 24 of the Basic Law states, inter alia, that:

“Residents of the Hong Kong Special Administrative Region (‘Hong Kong Residents’) shall include permanent residents and non-permanent residents.

The permanent residents of the Hong Kong Special Administrative Region shall be:

(1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;

(2) Chinese citizens who have ordinarily resided in Hong Kong for continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);

…

The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.” (Emphasis added)

16. The principal issue before the Tribunal was whether the applicant was of Chinese nationality (as required under Article 24(3) of the Basic law).

17. It is and was common ground that in determining whether someone is of Chinese nationality for the purpose of Article 24 of the Basic Law, Article 5 of the Nationality Law of the People’s Republic of China (“the Nationality Law”) is applicable and relevant[1].

18. Article 5 of the Nationality Law provides that:

“父母雙方或一方為中國公民，本人出生在外國，具有中國國籍；但父母雙方或一方為中國公民並定居在外國，本人出生時即具有外國國籍的，不具有中國國籍。

(English Translation)

Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality. ” (Emphasis added)

19. Thus, under Article 5, a person would not be of Chinese nationality even if born to parents who are Chinese nationals, if (a) the parents (or one of them) have “settled abroad ”, and the applicant himself “has acquired foreign nationality at birth”.

20. By way of the Tribunal’s Decision, the Tribunal dismissed the appeal.  In dismissing the appeal, the Tribunal held that:

(1)   Based on the evidence accepted by the Tribunal, the applicant at the time of birth (a) had acquired Canadian nationality, and (b) the parents had “settled abroad” in Canada. 

(2)   As such, the applicant was not a Chinese national under Article 5 of the National Law. 

(3)   Thus, the applicant was not a permanent resident of Hong Kong under Article 24(3) of the Basic Law, and was therefore not eligible for a Hong Kong permanent identity card.

21. The applicant later applied for leave for judicial review of the Decisions.  Leave was granted on 19 June 2012.

C.  THIS JUDICIAL REVIEW

C1.  The grounds of judicial review

22. The applicant’s original grounds of judicial review are that the Commissioner and the Tribunal misdirected themselves in law, in that in applying the Nationality Law, they misinterpreted Article 5 thereof as to:

(1)  The meaning of “settled abroad ” (定居在外國), and

(2)  The meaning of “has acquired foreign nationality at birth” (出生時即具有外國國籍).

23. However, at this hearing, Mr Pun for the applicant confirmed that he would no longer pursue the ground concerning the meaning of “acquiring foreign nationality at birth”.  In other words, in this judicial review, the applicant was contended to rely only on the ground that the Commissioner and the Tribunal had misdirected themselves as to the meaning of “settled abroad” under Article 5 of the Nationality Law.

24. I would therefore only deal with this ground below.

C2.  The Decision

25. As expected, one of the main issues before the Tribunal was whether the parents had “settled abroad (in Canada)” by the time of the applicant’s birth, rendering him not of Chinese nationality as defined under Article 5 of the Nationality Law.

26. The Tribunal said this was a question of fact, and in relation to this, it heard evidence from the applicant’s mother as to the relevant events concerning the parents’ living in Canada after they had immigrated there[2].

27. Further, for the purpose of assisting the interpretation of the relevant part of Article 5 of the Nationality Law, the Commissioner (before the Tribunal) sought to rely on the explanation of Article 5 given

by the learned authors in the Chinese text (“the Text”) known as: 蔡誠、蕭揚主編《中華人民共和國百法釋解案例全書》(Cai Cheng and Xiao Yeung, Interpretation of the Laws of the People’s Republic of China – Encyclopaedia of Decided Cases).  This explanation of the Text reads:

“[釋解]本條是關於確定中國公民在外國所生子女國籍的規定。按本條前半部份規定，凡中國人，不論他是中國男性公民還是女性公民，他在外國所生的子女都當然具有中國的出生國籍。這條規定與前規定一樣採取了血統主義原則賦予中國人親子女的中國國籍。但在本條後半部份又對這項原則規定了一個例外，即，出生者的父母都定居在外國，或者是其父或其母一方定居在外國(按外國法律規定取得了外國的永久居留權)，其本人出生時按外國法律規定已經取得了外國國籍的，即取得了出生地國家的國籍或取得了其外國父或母的國籍，就不得具有中國國籍。因為父母在外國定居會使出生者與外國的實際聯繫更密切受從外國國籍對其更有利... ...” (emphasis added)

English Translation: “[Explanation] This Article is the provision about ascertaining nationality of children born to Chinese nationals abroad.  As stipulated in the first half of the Article, a child born to a Chinese national abroad, irrespective a male or a female national, shall have Chinese nationality.  Both this Article and the previous Article similarly adopt the principle of jus sangauinis[sic] to confer Chinese nationality to the natural children of Chinese nationals.  However, the latter half of this Article provides an exception to this principle, namely, a person whose both parents have settled abroad or either his father or mother has settled abroad [having permanent right of abode in the foreign country] and the person has acquired foreign nationality at birth, that is acquiring the nationality of the country of his birthplace or acquiring the foreign nationality of one of his parents who is a foreign national, he shall not have Chinese nationality.  This is because with the parents settling abroad, the person would maintain a closer actual contact with the foreign country and it would be in his best interest to keep his foreign nationality ...” (emphasis added).

28. After looking at the evidence[3], including the fact that the parents had “permanent resident status” in Canada, the Tribunal found that the parents had settled in Canada for the purpose of Article 5 of the Nationality Law.  It explained its conclusion in the Decision as follows:

“74. Whether the Appellant’s parents have settled abroad at the time of his birth is a question of fact.

…

83. In deciding whether the Appellant’s parents had settled abroad at the time of his birth, the Tribunal accepted that the evidence given by Ms LEUNG, the Appellant’s mother, was generally credible. In the light of all the available facts and evidence, the Tribunal found that the Appellant’s parents had settled in Canada at the time of his birth.

84. The Appellant’s parents were married in Australia on 30September 2003. They emigrated to Canada in May 2005 as landed immigrants and with an intention to settle permanently there. They built their family in Canada and intended to purchase real property in Canada as family residence. They became permanent residents in Canada.

85. Whilst Ms LEUNG gave evidence that the permanent resident cards held by her husband and herself are subject to renewal, the fact remained that the Appellant’s parents had attained permanent resident status in Canada as early as in May 2005 (this is one of the important factors to be considered according to the Interpretation of the Laws of the People’s Republic of China - Encyclopaedia of Decided Cases (Editors-in-Chief being Cai Cheng and Xiao Yang)(《中華人民共和國百法釋解案例全書》主編:蔡誠、蕭揚) and the Appellant’s parents were not subject to any limit of stay when they were in Canada. They could stay in Canada as long as they wish.

86. The Appellant’s mother gave birth to her first daughter, Jane in Ontario in April 2005. It was the common intention of both the Appellant’s parents that Jane should grow up in Canada. The Appellant was subsequently born on 3^rd April 2008 in Canada. After the birth of the Appellant, Ms LEUNG applied for a driving licence.

87. All long, the Appellant’s family lived in a property owned by the Appellant’s paternal grandfather. In or about 2008 or 2009 and after the Appellant was born, the Appellant’s parents and elder sister Jane obtained Canadian passports and attained the status as Canadian citizens. By the end of 2010, the Appellant’s parents had returned their permanent resident cards to the Canadian authorities.

88. During the years between 2004 and 2009, the Appellant’s parents were out of Hong Kong for most of the time. They were all along residing in Canada. The Appellant’s parents expressly admitted that during the said years, they did intend to settle in Canada for good. They did live in Canada continuously for about 5 years and it was only unfortunate that they were not able to find any job.

89. During their stay in Canada, the Appellant’s parents had obtained ‘OHIP Cards’ by which they were covered by health insurance. They also had obtained their respective social insurance cards which had no expiry dates and which were a ‘must have’ for any person who wanted to work in Canada.

90. During the said years, the couple adopted Canada voluntarily as their abode. They resided there voluntarily for settled purposes as part of their regular order of life for the time being. They were ordinarily resident in Canada in those years. As seen from R v Barnet London Borough Council ex parte Shah, supra, at 343G - 344B - D, it is not required that the couple must intend to stay in Canada indefinitely. The purpose, while settled, could be for a limited period of time only. Employment and family were the clear reasons why the couple chose Canada as their regular abode.

91. In the premises, we are not satisfied that the Appellant has discharged his burden to prove on the balance of probabilities that he has a right of abode in Hong Kong and should be given HKPR status. We are of the view that at the time of the Appellant’s birth, (1) he had acquired or had (‘具有’) foreign nationality and that (2) his parents had settled in Canada.” (emphasis added)

C3. The applicant’s contentions

29. The applicant accepts that that the court should apply the common law approach in interpreting the Nationality Law as applied to HK, but in doing so, should also bear in mind the unique circumstances leading to such application, and its special nature.  Moreover, it has also be said that, in so interpreting the relevant part of the Nationality Law, it is the original Chinese text that one must look at closely, while the English translation is no more than a translation[4].

30. Therefore, the applicant does not quarrel with the Tribunal’s approach in treating the question of whether the parents had “settled abroad” (as understood under the Nationality Law) as a question of fact.

31. Mr Pun however says the Tribunal misdirected itself on the meaning of “settled abroad ” in the Decision.  Counsel’s arguments run as follows:

(1)   In considering whether the parents had “settled abroad ”, it was correct for the Tribunal to have regard to, amongst others, the interpretation of Article 5 of the Nationality Law as explained in the Text (as quoted above).

(2)   It was therefore also correct for the Tribunal to take into account of (as suggested in the Text) the fact whether the parents had “按外國法律規定取得了外國的永久居留權”. According to the translation, this means whether the parents had “permanent right of abode in the foreign country”.

(3)   However, a “permanent right of abode” is a right to enter and remain in that place without any limit or condition.  In support, Mr Pun uses the “right of abode” in Hong Kong as an example to support that such right should not be subject to any limit or conditions.

(4)   On this issue, the Tribunal found at paragraph 85 of the Decision that the parents’ stay in Canada was “not subject to any limit” and they could stay “as long as they wish”. 

(5)   This finding was however wrong:  under the relevant requirements of the Canadian immigration regulations, the parents’ permanent resident cards would expire and they had to renew them.  The parents could also lose their permanent resident status if they fail to continue to fulfill the residency period requirements or if they are, say, convicted of a serious crime[5].

(6)   In the premises, the “permanent resident status” of the parents is not the same as the “permanent right of abode” anticipated in the Text.  Therefore, the Tribunal misdirected itself or made an error of law in effectively equating these two as the same for the purpose of taking this conclusion into its consideration and found that the parents had “settled abroad ” under the meaning of Article 5 of the Nationality Law.

32. Alternatively, for the same reasons at paragraph 31(5) above, Mr Pun says the Tribunal’s finding that the parents could stay in Canada for “as long as they wish” is a clear mistake of fact, which also amounts to an error of law.

C4.  Discussion

33. Even if I were to accept (without deciding) that “right of abode” has the meaning as contended by Mr Pun above[6], I still do not accept his submissions.  I will explain why.

34. At paragraph 85 of the Decision, the Tribunal referred to the Text and accepted that “按外國法律規定取得了外國的永久居留權” was an important factor that it could take into account to determine whether the parents had “settled abroad ” at the time of the applicant’s birth.

35. I of course note that the English translation of “取得了外國的永久居留權” used before the Tribunal (as quoted in the Decision) was “having permanent right of abode in the foreign country”[7]. That does not per se mean that the Tribunal when assessing this factor had to adopt the concept of “right of abode” as translated.  In considering the observations made in the Text, the Tribunal should give attention to its original Chinese words.  This is in fact the approach the Tribunal had adopted: see paragraph 66 of the Decision.

36. Thus, in considering the factor as to whether the parents had “取得了外國的永久居留權”, the Tribunal was referring to the parents’ “permanent resident status” obtained in Canada.  The Tribunal did not use the term “right of abode”. 

37. In my view, the Tribunal was fully entitled to adopt “permanent resident status” as the relevant “right” to gauge whether the parents had obtained “外國的永久居留權”.  This is so as:

(1)   One has to bear in mind that the words “按外國法律規定取得了外國的永久居留權” are only comments and observations made by the learned authors of the Text in interpreting the factors that could be taken into account in determining whether someone has “settled abroad” under Article 5 of the Nationality Law.  These words are not words of the Nationality Law itself.  One therefore must interpret them carefully and with flexibility, and should not treat these as words of a statute.  This is even more so when one is looking at the translation.  We therefore cannot treat the translated words “permanent right of abode” as if they were statutory words.

(2)   In the premises, I do not accept that the words “永久居留權”are intended to have only the meaning that (as submitted by Mr Pun) it is a right of residence in that foreign country without any limit or condition in accordance with the law of that country.  The authors of the Text have simply not explained these words in the Text.

(3)   Moreover, the words “按外國法律規定取得了外國的永久居留權”are referring to the “永久居留權” obtained and granted under the relevant law of that foreign country.  In my view, the words “永久居留權”as used in the Text must thus be interpreted widely and flexibly to cater for different situations concerning the right of residence in different foreign countries as governed by the relevant law of those countries.  Therefore, when one looks at this particular factor, one should interpret and adopt the kind of “永久居留權”in the context of and as understood under the relevant law of that country. 

(4)   In the present case, under the Canadian regulations and law, the “永久居留權”is the permanent resident status[8]. The Tribunal was therefore correct to refer to the parents’ “permanent resident status” for the purpose of considering whether the parents had “settled abroad ”.

38. As such, the Tribunal committed no error of law, nor had it misdirected itself in adopting the Canadian “permanent resident status” in the present case as the equivalent of “外國的永久居留權” as a factor relevant to the determination of whether the parents had “settled” in Canada. 

39. I therefore reject the applicant’s first contention under this ground of judicial review.

40. In the present case, at paragraph 85 of the Decision, the Tribunal also specifically referred to the fact that the permanent resident status of the parents was subject to renewal. 

41. In the circumstances, when the Tribunal said in the same paragraph that the parents’ stay in Canada was “not subject to any limit ” and they could stay “as long as they wish”, this must be read in the context that the said “permanent resident status” was subject to renewal.  What the Tribunal must therefore have meant is clearly that the parents could stay in Canada for as long as they wished as permanent residents, which were subject to such renewal as permitted under the relevant regulations in Canada. 

42. When so read, this is clearly a conclusion that the Tribunal was fully entitled to make. There is no mistake of fact in it.

43. In the premises, I also reject the applicant’s alternative argument under this ground of judicial review.

D.  CONCLUSION

44. For the above reasons, the applicant fails in this application.  I would therefore dismiss it.

45. I further make an order nisi that costs of this application be to the Commissioner to be taxed if not agreed, and the applicant’s own costs be taxed in accordance with legal aid regulations. Unless any of the parties applies to vary it, this order nisi shall become absolute 14 days from today.