SUN JIE v. REGISTRATION OF PERSONS TRIBUNAL

CACV 430/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 430 OF 2002

(ON APPEAL FROM COURT OF FIRST INSTANCE CONSTITUTIONAL AND
ADMINISTRATIVE LAW LIST NO. 186 OF 2002 )

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

Background

1. This is an appeal from the decision of Chung J dated 11 November 2002 whereby, after considering the notice of application dated 6 November 2002 for leave to apply for judicial review and the supporting documentation lodged by the applicant, he refused the application without a hearing. By the notice of application, the applicant sought judicial review of the determination by the respondent ("the Tribunal") dated 6 August 2002 which dismissed the applicant's appeal against the decision of the registration officer to refuse the applicant's application for verification of his eligibility for a Hong Kong Permanent Identity Card and of the Tribunal's finding that the applicant does not have the right of abode in Hong Kong.

2. In fact, the applicant appealed to the Tribunal against the decision of the Commissioner of Registration dated 28 November 2001 refusing the applicant's application for a Hong Kong Permanent Identity card. As to his application for verification of eligibility for such an identity card, it was refused by the Director of Immigration by letter dated 28 August 2001.

Grounds of appeal

3. Two grounds of appeal are raised by the notice of appeal, namely,

(a) The applicant has at least an arguable case that he has ordinarily resided in Hong Kong for a continuous period of not less than 7 years, commencing from 6 September 1993, notwithstanding that during the portion of the said 7-year period from 1 January 2000 to 5 September 2000, he entered into and remained in Hong Kong under the immigration status as a "visitor";

(b) It is at least arguable that the Tribunal has reached a perverse decision by virtually ignoring the fact that the objective quality of the applicant way of life during the period after he returned to Hong Kong in 2000 is very much similar to his way of life before the turn of millennium (save that he was not permitted to work).

The underlying facts of residence

4. In the proceedings before the Tribunal, which were conducted in Chinese, there was no dispute that the applicant is a "Chinese citizen born in China before the establishment of the Hong Kong Special Administrative Region". The only issue was whether the applicant had ordinarily resided in Hong Kong for a continuous period of 7 years. The determination of the Tribunal made after the hearing of evidence and submissions on behalf of the applicant and the Director of Immigration was against the applicant on the issue.

5. Four periods of the applicant's residence in Hong Kong were considered by the Tribunal, namely,

(1) 6 September 1993 to 31 December 1999, a period of 6 years 3 months and 26 days;

(2) 10 to 12 March 2000, a period of 3 days;

(3) 1 to 6 April 2000, a period of 6 days; and

(4) from 25 April 2000 to the date of the determination by the Tribunal, over 2 years and 7 months (save that the applicant was not in Hong Kong between 10 February and 15 August 2001).

6. There was no dispute before the Tribunal that the applicant was ordinarily resident in Hong Kong during period (1), a period of 6 years 3 months and 26 days. During this period the applicant was permitted by the Director of Immigration to stay in Hong Kong, whilst he was under the employment of one Chu Kong Godown Wharf & Transportation Co, Ltd in Hong Kong. His employment was terminated on 31 December 1999, his working visa expired on that day and was not renewed, and he left Hong Kong to return to the Mainland on that day. The Tribunal decided that since that date, the applicant had no longer been ordinarily resident in Hong Kong, and that his absence from Hong Kong since his departure on that day did not amount to temporary absence from Hong Kong under s 2(6) of the Immigration Ordinance, Cap 115.

7. The Tribunal also found that after 31 December 1999, whenever the applicant returned to Hong Kong, he was granted a permission to stay merely as a "visitor". This is not disputed by the applicant.

8. Before the Tribunal, the applicant's testimony also dealt with his marriage to one Madam Yu registered in Hong Kong on 27 April 2000. The Tribunal did not accept the applicant as an honest or reliable witness and refused to accept his evidence. The Tribunal also refused to accept that the marriage was a genuine marriage. It found that the only reason for the applicant to contract the marriage was to rely on it for the purpose of remaining in Hong Kong. See para 24(7) of "the Reasons for Judgment" ("the Reasons").

9. It is therefore clear that the only dispute regarding the propriety of the Tribunal's determination is whether the applicant has been ordinarily resident in Hong Kong since his return to the Mainland on 31 December 1999. It is argued on behalf of the applicant that periods (2), (3) and (4) of his stay in Hong Kong showed that the applicant's ordinarily residence in Hong Kong had not been so substantially interrupted by his absence from Hong Kong between 31 December 1999 and 25 April 2000 as to disqualify him from being continuously ordinarily resident in Hong Kong between those two dates and thereafter, and if the argument is correct, his continuous ordinary residence has been from 6 December 1993 up to the present.

The applicable test

10. The test on an application for leave for judicial review has been set by the Court of Appeal to be one of "potential arguability" which is whether the material before the Court disclosed matters which might on further consideration demonstrate an arguable case for the grant of the relief sought or a prima facie case that something warranting investigation had gone wrong: Director of Immigration v Ho Ming Sai (1993) 3 HKPLR, 157 per Kempster JA at 161 and Godfrey J at 170.

11. The potential arguability must be viewed in the judicial review context, as distinguished from the sense of that phrase as applicable in any other general civil or criminal context. This can be demonstrated with the ready examples of the two grounds of appeal now raised. While the second ground raises the arguability of whether the Tribunal had reached a perverse decision, which is a proper ground in the judicial review context, the first ground whether the applicant has at least an arguable case of his having ordinarily resided in Hong Kong for a continuous period of not less than 7 years only raises arguability in the general civil proceedings context unless it is asserted that it was wrong in law or unreasonable for the Tribunal to hold that the applicant did not have such ordinary residence.

Grounds of appeal arguable?

12. Apart from procedural irregularity which is not relied upon by the applicant, in order to attack the Tribunal's determination successfully on a judicial review, generally the applicant has to establish an error in law in the determination or Wednesbury unreasonableness on mainly one of the following grounds:

(a) the decision was made in bad faith;

(b) the decision was one that no tribunal properly directing itself or the relevant law and acting reasonably could have reached; or

(c) the Tribunal had taken into account an irrelevant matter or had failed to take into account a relevant matter.

13. There is no attack on the good faith of the Tribunal in reaching its determination. The challenge is all based on grounds (b) and (c) above.

14. Mr Tse, for the applicant, argues that the Tribunal's determination is perverse or unreasonable in the Wednesbury sense in that it failed to take into account sufficiently or at all the following matters:

(a) the applicant's intention to settle in Hong Kong has continued after 31 December 1999 until today;

(b) the applicant's way of life since 2000 is not greatly different from that in the period between 6 September 1993 and 31 December 1999;

(c) the applicant's reason for his short absences from Hong Kong between 1 January 2000 and 25 April 2000 when he returned to Hong Kong to get married;

and had wrongly taken into account or given too much weight to the following matters:

(d) the marriage of the applicant to Madam Yu being bogus;

(e) the applicant's immigration status of being a "visitor" since his return to Hong Kong in 2000; and

(f) the applicant's retaining a valid household registration in the Mainland.

15. It is clear from the Reasons that the Tribunal had considered matters referred to in para 14 above, save perhaps those mentioned in sub-para (b) thereof which were not dealt with specifically. But the Tribunal stated in the Reasons that it had taken into account all evidence, materials and submissions in reaching its determination.

16. Regarding the marriage, it must be noted that para 13 of the notice of application for leave to apply for judicial review states:

"The Tribunal disbelieved the Applicant and found that he did not genuinely marry Madam Yu out of love: para 19 of the Reasons for Determination. As regards this finding, the Applicant, though in respectful disagreement with the Tribunal, would not seek to challenge it and rely on the possibility of a reviewed finding to the contrary effect in support of the Judicial Review."

It is a clear statement that the applicant does not challenge the alleged finding that his marriage to Madam Yu was not genuine. But Mr Tse attacks this alleged finding in his submissions. Mr Tse was allowed to re-open this issue because we considered it not unreasonable or unjust that he might amend the application in order to do so.

17. Mr Tse refers us to the definition of a Hong Kong permanent resident under the Immigration Ordinance, Cap 115. The applicant's claim is based on para 2(b) of Schedule 1 to the Ordinance. The other relevant provisions are s 2(4)(a)(v) and s 2(6) of the Ordinance. They are set out below:

Section 2 Interpretation

(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-

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

(6) For the purposes of this ordinance, a person does not cease to be ordinarily resident in Hong Kong if he is temporarily absent from Hong Kong. The circumstances of the person and the absence are relevant in determining whether a person has ceased to be ordinarily resident in Hong Kong. The circumstances may include-

(a) the reason, duration and frequency of any absence from Hong Kong;

(b) whether he has habitual residence in Hong Kong;

(c) employment by a Hong Kong based company; and

(d) the whereabouts of the principal members of his family (spouse and minor children).

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Schedule 1 Permanent Residents of the Hong Kong Special Administrative Region

2. Permanent Resident of the Hong Kong Special Administrative Region

A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region-

(b) 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.

18. Since there was no dispute that the applicant had been ordinarily resident in Hong Kong during period (1) for almost 6 years and 4 months, we take it that there was no contention that s 2(4)(a)(v) of the Ordinance applies to exclude that period as the applicant's ordinary residence in Hong Kong.

19. Mr Tse argues that the duration and frequency of the applicant's absence from Hong Kong was that he was only temporarily absent from Hong Kong between 1 January 2000 and 25 April 2000. Even during the period, the applicant had returned to Hong Kong twice for periods (2) to (3). Since he got married in April 2000, he and his spouse have been in Hong Kong. It is therefore contended that the Tribunal was most unreasonable in treating the applicant's ordinary residence as having effectively discontinued since 1 January 2000.

20. The Tribunal had heard and seen the applicant testifying before it and come to the conclusion that his evidence was not believable and reliable. Despite the marriage certificate having been produced before it, it did not accept the marriage being a genuine one. But it did not make a finding that the marriage was bogus (see the wording of para 24(7) of the Reasons), although based on the refusal to accept the marriage as genuine, it had not expressly considered the applicant as having married and established a family in Hong Kong or the situation of Madam Yu as the applicant's spouse, pursuant to s 2(6)(b) and (d) of the Ordinance.

21. While it is one thing to say that the Tribunal did not believe the applicant and therefore did not accept that his marriage to Madam Yu was genuine, it is quite another thing to say that the Tribunal had decided that the marriage was bogus, for such a decision would need evidence in support. There was little evidence before the Tribunal that any investigation had been made on the genuineness of the marriage: no evidence of such investigation or the result of it was adduced and Madam Yu was not called as a witness. On the other hand, the burden of proof as to the truth of the applicant's application for an identity card is on him (see regulation 21 of the Registration of Persons Regulations, Cap 177). We consider that the Tribunal's refusal to accept the marriage as genuine is tantamount to the applicant failing to discharge his burden of proof on the issue, and it is not arguable that the Tribunal erred in law or acted unreasonably on this issue.

22. On the other hand, from the Reasons, it is obvious that the Tribunal mainly relied on two particular facts for holding that the applicant's absence from Hong Kong since 1 January 2000 had the effect of discontinuing his ordinary residence, namely, he had retained a valid household registration in the Mainland (para 30(4) of the Reasons) and his stay in Hong Kong after 31 December 1999 was by virtue of the status of a visitor (para 30(3) and (5) of the Reasons). These reasons are subject to challenge in these proceedings.

23. Indeed, these two facts were the only two substantial facts stated in para 30 of the Reasons which consists of 32 paragraphs on 18 pages. Following para 30, the Tribunal stated its decision that the applicant had not ordinarily resided in Hong Kong continuously for 7 years or more (para 31(2)) and made the statement that it did not accept that the applicant had on the balance of probabilities proved that he had ordinarily resided in Hong Kong continuously for 7 years or more (para 32).

24. We do not know how much weight the Tribunal placed on the fact that the applicant had retained his household registration in the Mainland as one of the two substantial reasons for its decision. We consider, however, that little weight should have been placed on this fact because even if a person is and continues to be ordinarily resident in Hong Kong, the retention of his household registration in the Mainland, alone, should not have the effect of causing his ordinary residence in Hong Kong to cease.

25. Mr Tse has drawn our attention to some authorities on the meaning of "ordinary residence", such as Fateh Muhammad v Commissioner of Registration [2001] 2 HKLRD 659 and The AG on behalf of the Commission for Registration v The Registration of Persons Tribunal and Tan Helen, HCAL No 5/1999 (27 May 1997, Sears J, unreported), which were considered by the Tribunal. These cases say, as in others, that the term should be given its natural and ordinary meaning, and whether there is ordinary residence is essentially a question of fact.

26. Mr Tse heavily relies on the Tan Helen case. There the applicant, partly Chinese, applied for a permanent Hong Kong identity card. Sears J dealt with an appeal by the Commissioner for Registration against the decision of the Registration of Persons Tribunal that the applicant had been ordinarily resident in Hong Kong for the requisite period for her to be entitled to her claimed identity card. She had been living in the Philippines and in May 1986 she came to Hong Kong as a domestic helper. On 12 March 1992, he employment contract was terminated and she was sent back to the Philippines in April 1992. She applied to get employment to work in Hong Kong but was refused; then she applied for another domestic helper contract which was approved. She came to Hong Kong on 13 March 1993. The Registration of Persons Tribunal heard evidence and came to conclusion that it was more likely than not that the applicant's intention to settle had continued during the intervening period between 15 April 1992 and 13 March 1993. Sears J held that the discretion of the Director of Immigration and his decision to decide that the applicant should not stay in Hong Kong since April 1992 did not affect the applicant's residence intention, and was not a decisive factor in deciding whether or not she was ordinary resident. The judge continued:

"The claim must be a claim lawfully made. This lady is lawfully in Hong Kong at the moment, she is not unlawfully here. She is lawfully here and she has made a lawful claim. Mr Shieh [for the AG] would have me accept that it is only a lawful claim when the Director of Immigration throughout the period has given permission to the person to be here. That, in my judgment, would lead to injustice. For example, a person who has been lawfully here for some 5 years and 9 months because of something to which she is not guilty of - she has not done anything wrong - has her contract terminated, and she has to leave Hong Kong. She has not done anything wrong, as I said like those people in the exceptions who were illegal immigrants or been in prison and she has to go back to Philippines and within a few days she is able to come back again. Mr Shieh described that as bad luck. Although they have been here for nearly 7 years and they are sent back because they cannot get a new contract here, that's their bad luck. In my judgment, people's right should not be dealt with in that sort of haphazard manner. Judges have a duty to ensure that people are dealt with fairly. In my judgment, the claim made by this lady was a lawful claim."

27. In para 30(3) of its Reasons, the Tribunal distinguished the Tan Helen case by citing the fact that Tan Helen had the permission from the Director of Immigration to remain in Hong Kong as a domestic helper on her return to Hong Kong on 13 March 1993 whereas the applicant in the present case had only been allowed to stay in Hong Kong as a "visitor" as from 2000. Without full argument, we do not think it proper to accept that as a valid distinguishing factor so that the principles as stated by Sears J in the Tan Helen case should not apply to the present case.

28. In our view, the applicant in the present case when he had to leave Hong Kong on 31 December 1999 since his permission to remain in Hong Kong was not renewed was in a similar position as Tan Helen when she was absent from Hong Kong between 15 April 1992 and 13 March 1993. Without hearing full arguments, on the facts of the present case, we are not prepared to hold that it is unarguable that merely because the applicant returned to Hong Kong after that date as a "visitor" and has been permitted by the Director of Immigration to remain in Hong Kong by virtue of that status, his residence in Hong Kong thereafter must necessarily fail to qualify as ordinary residence or his ordinary residence in period (1) must have effectively ceased.

Parties

29. Before we conclude, we would like to mention that during the course of argument, we intimated that the applicant might need to join the Commissioner of Registration as a respondent. This is because the application seeks not only an order of certiorari to quash the Tribunal's determination but also a declaration that the applicant has the right of abode. That declaration may affect the Commissioner. If the judicial review proceedings are directed also against the decision to reject the verification of the applicant's eligibility which was made by the Director of Immigration, the Director may need to be joined for the same reason.

Conclusion

30. We do not have the benefit of arguments on behalf of the Tribunal and we are therefore wary of the situation that the arguments presented by Mr Tse are one-sided. Be that as it may, we cannot say that this matter might not on further consideration demonstrate an arguable case that the Tribunal's determination involves an error of law and/or is Wednesbury unreasonable.

31. We therefore allow the appeal, and grant leave for the judicial review proceedings to be brought.

32. We put the question of costs to Mr Tse and he agreed that the proper order for costs is that the costs of this appeal be in the cause of the judicial review proceedings. We make such an order accordingly. We also order that the applicant's own costs be taxed in accordance with the Legal Aid Regulations.