RAI CHHABIKALA v. SECRETARY FOR JUSTICE for an on behalf of DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1370/2022

[2023] HKCFI 175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1370 OF 2022

________________________

________________________

___________________

REASONS FOR DECISION

___________________

A.  Introduction

1.  By her Form 86 dated 30 November 2022, the Applicant seeks leave to apply for judicial review of the decision/determination of the Registration of Persons Tribunal (“Tribunal”) dated 29 June 2022 (“Decision”). The Decision dismissed the Applicant’s appeal against the decision of the Commissioner of Registration (“Commissioner”) dated 26 September 2019 not to issue to the Applicant a Hong Kong permanent identity card (“HKPIC”).

2.  Because of the timing of the Decision the subject of the intended challenge, and the making of the application by the Form 86, the Applicant requires and seeks leave to make the application out of time.

3.  By my directions dated 5 December 2022, I permitted the putative respondents to file and serve an initial response, and for the Applicant to file and serve a reply to the initial response. The Tribunal has, as expected, indicated that it would take a neutral stance in these proceedings, and has been excused from further attendance. An initial response has been filed by the Director of Immigration (“Director”) who plays the role of the Commissioner. However, no reply to that initial response has been filed by the Applicant.

4.  By my direction, I also set yesterday as the date for the oral hearing requested by the Applicant in her Form 86.

5.  By Memorandum dated 9 January 2023, the Court received notification of the fact that the Applicant has made an application for Legal Aid. Ordinarily, the making of such an application would trigger a 42-day stay of proceedings. However, because of the lateness of the application and its notification, I indicated to the parties that at least yesterday’s hearing should go ahead, and I would consider any question of further adjournment only at the hearing.

6.  Having considered matters, I saw no reason why the stay should not be lifted, so that the hearing should go ahead as originally fixed. Lifting the stay would not, in my view, have occasioned any prejudice to the Applicant.

7.  At the hearing, the Applicant, who acts in person, failed to appear. Attempts to contact her on the telephone number given by her failed.

8.  The Director has been represented by Mr Rex Cheung, Senior Government Counsel, who also filed the initial response which stands as his skeleton submissions (upon which he relied).

9.  At the hearing, I dismissed the application for reasons to be provided. These are my Reasons for Decision.

B.  Background Facts

10.  Apart from on the core area of the dispute, many of the background facts relevant to these proceedings are not in dispute. There is also no dispute as to the basis of the Applicant’s case as presented to the Director/Commissioner and before the Tribunal.

11.  The following broad summary of the background facts can be taken as appropriate to providing the relevant factual context, and the extent of the relevant factual contest canvassed before the Tribunal:

(1)  The Applicant is a Nepalese citizen.

(2)  Although the name shown on her passport is “RAI Chhabikala”, she claims also to be called “RAI Panita” – a name shown on a Vaccine Card produced by her and on a District Administration Office Certification which states that “it has been learnt that the person having two names is one and the same”.

(3)  The Applicant has claimed that her father is Mr RAI Barna Bahadur, who served in the British Army in Hong Kong, possibly for eight years before her birth. However, nothing shows that her father was or is a Hong Kong permanent resident (“HKPR”).

(4)  The Applicant has claimed that her mother’s name is Ms RAI Bishnu Kumari, who passed away on 26 August 2002.

(5)  The Applicant submitted her first and second applications for a visit visa on 26 May 2010 and 10 November 2011 respectively, so as to claim for the right of abode in Hong Kong by birth.

(6)  The Director took no further action on her first application due to lack of response from the Applicant, and refused her second application since it had not been satisfied that the Applicant was the rightful holder of the Hong Kong birth certificate (“HKBC”) relied upon by her, which does not show her name.

(7)  The Director granted the Applicant’s third application made on 30 November 2018 for the purpose of visiting her relative in Hong Kong. She arrived in Hong Kong on 23 July 2019, and her originally limited permission to stay as a visitor for 30 days was subsequently extended until 5 September 2019.

(8)  Since that date, the Applicant has been overstaying in Hong Kong.

(9)  On 25 July 2019, she applied for verification of eligibility for permanent identity card (“VEPIC”) under paragraph 2(d) of Schedule 1 to the Immigration Ordinance Cap 115.

(10)  In support of her application for VEPIC, the Applicant furnished documents including the HKBC registration number “45K4”, which showed that a girl (without name) was born on 6 March 1971 at the British Military Hospital to “Rai Barnabahadur” (father) and “Bishnukumari” (mother).

(11)  On 2 September 2019, the VEPIC application was refused, on the basis that it had not been satisfied that the Applicant had ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately before the application, and she also did not fall within other categories under paragraph 2 of Schedule 1 for claiming HKPR status.

(12)  On 26 September 2019, the Applicant applied for a HKPIC, which was refused on the same day as there was insufficient evidence to show that she had the right of abode in Hong Kong.

(13)  On 30 September 2019, the Applicant lodged an appeal with the Tribunal.

(14)  The appeal was heard on 21 April 2022, and the Applicant was represented by Counsel who also filed skeleton submissions.

(15)  The appeal was dismissed by the Tribunal by the Decision, on 29 June 2022.

(16)  Whilst the Director/Commissioner received the Tribunal’s Decision on 5 July 2022, the Applicant has stated in her affirmation in these proceedings, without further explanation, that she received it late in September 2022.

C.  Applicable Principles as to HKPR Status

12.  It is trite that the right of abode is only given to a person who qualifies to be a HKPR under Article 24(2) of the Basic Law after 1 July 1997, which article provides for six exhaustive categories mirrored in paragraphs 2(a)-(f) of Schedule 1.

13.  Because the Applicant is not a person of Chinese nationality, and as she accepted before the Tribunal, she does not fall into the categories of paragraphs 2(a), (b) or (c).

14.  Similarly, before the Tribunal the Applicant accepted that the period of ordinary residency was not as might have established HKPR status under the category in paragraph 2(d). In any event, it is plain that the Applicant cannot establish eligibility for claiming right of abode in Hong Kong under that paragraph.

15.  Further, before the Tribunal the Applicant accepted that her claim for HKPR status under paragraph 2(e) was unlikely to succeed, as it is not possible to show that her father had HKPR status or the equivalent. In any event, I also agree with Mr Cheung’s submission that, since the Applicant is now over 21 years old, she is not entitled to make any claim under this category whether or not she was born in Hong Kong and whether or not her parents were HKPRs.

16.  The Applicant’s Counsel invited the Tribunal to find that the Applicant had HKPR status under paragraph 2(f).

17.  The relevant battleground for present purposes therefore turns on the provision of paragraph 2(f) of Schedule 1, which refers to:

A person other than those residents in categories (a) to (e), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only.

18.  It may also be necessary to consider the transitional provisions under paragraph 6(1) of Schedule 1, which provides that:

A person who is not of Chinese nationality and who was a permanent resident of Hong Kong before 1 July 1997 is taken to be a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) and exempt from the requirements under paragraph 3 if –

(a) he was settled in Hong Kong immediately before 1 July 1997;

(b) after he ceases to be settled in Hong Kong immediately before 1 July 1997 he returns to settle in Hong Kong within the period of 18 months commencing on 1 July 1997; or

(c) after he ceases to be settled in Hong Kong immediately before 1 July 1997 he returns to settle in Hong Kong after the period of 18 months commencing on 1 July 1997 but only if he has not been absent from Hong Kong for a continuous period of not less than 36 months.

D.  Tribunal’s Decision

19.  Before turning to the Tribunal’s Decision, I can note that the Director was not satisfied that the Applicant is the rightful holder of the HKBC. The Director’s reasons are essentially to be found in the Statement of Facts provided for the Tribunal and in the skeleton submissions filed by the Director/Commissioner for the appeal before the Tribunal.

20.  It is unnecessary to set out the content of the Tribunal’s Decision at any great length. Suffice it to say that it rehearses the background circumstances, before considering the legal basis and factual matters relevant to the appeal.

21.  The Tribunal noted that an appeal to the Tribunal may only be brought by a person on the ground that, on the facts of her case, she enjoys the right of abode in Hong Kong and shall succeed if, and only if, the Tribunal determines that she has that right. The burden of proof lies on the appellant to prove that, on the facts of her case, she is an HKPR under Schedule 1.

22.  The Tribunal considered the Applicant’s claim to be an HKPR under paragraph 2(d) of Schedule 1 under her application for VEPIC. The Tribunal considered that, as the Applicant first entered Hong Kong on 23 July 2019, and permitted to remain as a visitor until 5 September 2019, it is obvious that she had not resided in Hong Kong for a continuance period of not less than seven years at the time of application for VEPIC on 25 July 2019.

23.  As to paragraph 2(e) of Schedule 1, the Tribunal noted that the Applicant needed to prove that she was born in Hong Kong and one of her parents had the right of abode in Hong Kong before she attained 21 years of age. The Tribunal was of the view that there was insufficient evidence to support the Applicant’s claim that she was the rightful holder of the HKBC. The Tribunal pointed to the lack of secondary evidence. As to the discrepancies in names, the Tribunal expressed that the supposed certification was only given on the basis of representation provided by the Applicant to the relevant Nepalese government authorities, again without secondary evidence in support of the statement or verifying information of it. The Tribunal also noted that the Applicant was unable to produce identification documents of her parents to established her relationship with her claimed mother on the HKBC. Hence, any claim to HKPR status under paragraph 2(e) could not be established.

24.  As to paragraph 2(f), the Tribunal noted and addressed the submissions made by Counsel for the Applicant before it, but considered that there was no sufficient evidence to prove that the Applicant had the right of abode in Hong Kong before the establishment of the HKSAR. The Tribunal noted that the Applicant returned to Nepal in 1972 and was educated in a public school in Nepal, which is attended by children who are Nepalese nationals; and that her Nepalese Citizenship Certificate states that she acquired Nepalese citizenship by descent.

E.  Intended Grounds of Review

25.  The intended grounds of review set out in the Applicant’s Form 86 and her Affirmation in support essentially merely assert that there were errors of law, lack of reasons given by the Director and the Tribunal, unfairness and discrimination.

26.  In so far as the challenge is to the prior decision of the Director/Commissioner, I do not propose to address that challenge any further. That prior decision was overtaken by the appeal to and decision of the Tribunal. In addition, it was a decision made in 2019, long ago. I shall, therefore, focus on the apparent challenge to the decision-making of the Tribunal in reaching the Decision. I do not propose to set out verbatim or at length the materials filed by the Applicant, and the following summary of her points of argument will suffice:

(1)  It is obvious that the Tribunal exercised its power improperly, and the Decision is wrong in law in principle in refusing her claim.

(2)  The Tribunal failed to pay any proper regard to the documents submitted in the appeal and therefore was erroneous in law.

(3)  The Tribunal failed to refer to the intended grounds of appeal or any part of them, and also failed to state clearly why they found the intended grounds of appeal unsustainable or without merit.

(4)  The requirements of procedural fairness demand the Tribunal to have given reasons for its decision regarding the merits of the Applicant’s case. As no reasons were given, or the reasons given were inadequate or unintelligible, the Court may infer that the decision is unlawful.

(5)  The absence of reasons also identifies that the Tribunal may have misdirected itself as to the relevant law and authorities, and evidence of facts.

(6)  The intended grounds of appeal put forward by the Applicant were plainly arguable and sensitive to the underlying facts and evidence of facts.

(7)  It is unfair and discriminatory, and so amounts to abuse of power, to disregard the merits of the Applicant’s case as reflected in her grounds of appeal.

F.  No Merit in Intended Challenge

27.  There is no merit in the Applicant’s intended challenge.

28.  The suggestion that there was an error of law simply because the appeal was determined against the Applicant needs only to be set out to be seen to be a suggestion of illogicality and of no merit.

29.  It is also trite that questions of fact are for the decision-maker to whom the legislature has entrusted the fact-finding function, and that the Court conducting judicial review proceedings will only interfere with the decision-maker’s assessment of the evidence or finding of facts if it can be shown that the exercise has been tainted with procedural unfairness, is unlawful, or is Wednesbury unreasonable or irrational.

30.  There is nothing to suggest that the Tribunal in fact failed to pay proper regard to the Applicant’s grounds of appeal and the documents she submitted in support of her appeal. I note that at the hearing before the Tribunal the Applicant was represented by Counsel who had filed skeleton submissions. The arguments put forward by Counsel were addressed. The issues in the case were not complicated. There is no indication that the Tribunal failed to take into account any relevant factors, or took into account any irrelevant factors, or to consider that the conclusions reached by the Tribunal was Wednesbury unreasonable. The weighing of matters for making findings of fact was a matter for the Tribunal, and it was open to the tribunal to have reached the decision it did on the materials it had. There is no error of law, and there is no irrationality.

31.  Further, as the Applicant herself accepted before the Tribunal that she could not satisfy paragraph 2(d), the transitional provisions may not be very relevant. But I would agree with Mr Cheung that the Applicant plainly does not meet the requirement for transition from a HK PR before 1 July 1997 to HKPR under paragraph 2(d). She had not settled in Hong Kong immediately before 1 July 1997; she had not come back to Hong Kong within 18 months thereafter; and she has been absent from Hong Kong for a continuous period of not less than 36 months prior to her arrival in 2019.

32.  The suggestion that the Tribunal gave no reasons for its decision is simply incorrect. Though relatively brief, the reasoned Decision identified the primary matters taken into account and what led to the conclusion that there was no sufficient evidence to prove that the Applicant, before the establishment of the HKSAR, had the right of abode in Hong Kong.

33.  The Applicant has failed otherwise to specify or elaborate in what way she might suggest the Tribunal acted in a procedurally unfair manner or that the Tribunal’s Decision was unreasonable in the public law sense. It is not for the Court to examine the decision the subject of intended challenge as if it is a fresh application for judicial review, or to seek to identify potential public law grounds of challenge.

34.  In short, I accept Mr Cheung’s submission that the application does identify any reasonably arguable ground.

G.  Delay and Timing

35.  As already noted above, the Applicant has recognised that the application in these proceedings was made out of time, and she seeks leave to make the application notwithstanding the delay. The relevant delay is one of 2 months beyond the usual time limit of 3 months following the date of the Tribunal’s decision on 29 June 2022.

36.  The Applicant’s offered explanation for the delay is that, immediately after receiving the Decision “late in September 2022” (by which I assume that the Applicant means that she received the Decision late, namely only in September 2022 despite the fact that it was dated 29 June 2022), she made an application for legal aid on 15 September 2022 and was under the impression that the Director of Legal Aid would be representing her and taking care of her matter. She does not otherwise explain why she might have been under that impression, notwithstanding a prior experience of having sought legal aid assistance in the context of her attempts to establish that she enjoys HKPR status. Nor does she explain how she received the Decision only late, and more precisely when it was actually received.

37.  I also note that the Applicant only appears to have made an application for legal aid in perhaps early January 2023 (as it was notified by Memorandum dated 9 January 2023).

38.  In any event, it is settled that an application for legal aid is unlikely a good reason for any substantial delay, or for extending time for making an application for judicial review. It was incumbent on the Applicant to file her leave application within the 3-month ‘long stop’ period provided for under the rules, even if she also intended to make an application for legal aid.

39.  Just as importantly, I see no particular reason to exercise my discretion in favour of extending time to make an application which I have already found to be without sufficient merit for the grant of leave to apply for judicial review.

H.  Conclusion

40.  For the above reasons, I dismissed the application.

41.  As to costs, whilst Mr Cheung sought an order of costs against the Applicant, I decided in the exercise of my discretion to make no order as to costs.