SUN JIE v. REGISTRATION OF PERSONS TRIBUNAL AND OTHERS

cacv 320/2004

 in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 320 of 2004

(on appeal from HCAL NO. 186 of 2002)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal by the Commissioner of Registration and the Director of Immigration from a judgment of Cheung J given on 16 August 2004.  The judgment below allowed the applicant’s application for judicial review holding that the applicant had acquired the status of a permanent resident of Hong Kong under paragraph 2(b) of Schedule 1 of the Immigration Ordinance Cap. 115 (“the Ordinance”).  In doing so the judge quashed the decision of the Director, dated 28 August 2001, refusing the applicant’s application for verification of eligibility for a permanent identity card and also quashed a determination of the Registration of Persons Tribunal (“the Tribunal”), dated 6 August 2002, whereby the applicant’s appeal against the decision of the registration officer not to issue the applicant a Hong Kong permanent identity card.  At the conclusion of the hearing of this appeal this court allowed the appeal with reasons to be given in writing.

Background

2.  The applicant was born in the Mainland in 1968.  He came to Hong Kong on 6 September 1993 to work for a state-owned enterprise, Chu Kong Shipping Co. Ltd.  He was granted a one-year limit of stay.  His limit of stay was extended on a yearly basis thereafter upon his satisfying the Immigration Department on each occasion that he continued to work for a state owned enterprise.  In August 1999 the applicant’s extension of stay was approved up until 31 December 1999.  On that day his employment with Chu Kong Shipping Co. Ltd ended.  His limit of stay therefore expired.  There was no attempt to apply for an extension of stay and the applicant returned to the Mainland.  Despite that, it is an acknowledged fact that the applicant kept a rented flat in Hong Kong and he also kept some of his belongings there.

3.  The applicant returned to Hong Kong as a transit passenger on 10 March 2000.  On that occasion he held a Chinese passport and was granted permission to stay until 17 March 2000.  Nevertheless, he left Hong Kong two days after he had arrived and went to Nauru.  Apparently on 15 March 2000 he succeeded in obtaining citizenship of the Republic of Nauru under the name of Sun, Alex J.  Thereafter on 1 April 2000 he arrived in Hong Kong holding a Nauru passport and he was allowed to stay as a visitor until 8 April 2000.  Again, after only five days stay, he left Hong Kong but returned again on 25 April 2000 using his Nauru passport and he was, again, allowed to stay as a visitor, this time until 2 May 2000.  On 27 April 2000 he married a Ms Yu, who was a Hong Kong resident.  Two days later he applied to change his status to be a dependent of his wife.  Pending consideration of that application he applied for and was granted 13 extensions of stay, the last of which expired on 10 February 2001.

4.  The Director of Immigration refused the change of status application, following interviews by officers of the Immigration Department during which, it is said, the applicant made false claims that he had never entered Hong Kong before April 2000 and that he had lived in Nauru for 12 years.  The refusal was on 7 August 2000 and, following a request for reconsideration and review of the refusal, the application was again refused on 27 November 2000.  A further request for review was refused on 10 January 2001 and his extension of stay expired on 10 February 2001.  In August of the same year the applicant returned to Hong Kong, again claiming visitor’s status, travelling on his Nauru passport.  On 28 August 2001 the application for verification of eligibility for a permanent identity card, which had been filed on 9 February 2001, was rejected on the grounds that he had departed on 31 December 1999 and had not thereafter been ordinarily resident in Hong Kong for a continuous period of not less than seven years.

5.  There then followed an appeal to the Tribunal.  That did not proceed because there had not been a refusal to issue a permanent identity card.  An application was made to the Commissioner of Registration for a permanent identity card on 28 November 2001 but that was promptly refused and this was followed by an appeal in December of that year to the Tribunal.  The hearing of the appeal took place on 15 July 2002.  The Tribunal dismissed the appeal on 22 July 2002 with the notice of determination on 6 August 2002.  Thereafter these proceedings were commenced. 

6.  Initially leave to bring judicial review was refused but it was allowed by the Court of Appeal.  The judge below reached the conclusion that the Tribunal had erred in law and misapplied the law relating to ordinary residence.  He also said that had it been necessary, he would also have come to the conclusion that the decision of the Tribunal was manifestly wrong, in other words Wednesbury unreasonable. 

7.  The judge considered a number of cases which were clearly relevant cases in particular the case of Akbarli and others v Brent London Borough Council, perhaps better known under the name Reg. v Barnett London Borough Council, ex parte Shah [1983] 2 AC 309.  He cited extensively from that judgment and also from the judgments in the case of Prem Singh v Director of Immigration (2003) 6 HKCFAR 26 and the case of Attorney General v The Registration of Persons Tribunal and Helen Tan, No. AL5 of 1997.  It would appear that the judge accepted the argument put forward on behalf of the applicant that ordinary residence did not stop or break when, against his wish and out of no choice but to obey the law, the applicant departed Hong Kong for the Mainland on 31 December 1999.  His conclusion is summarised in paragraph 57 of the judgment where he says that there can only be one answer namely that the applicant had never lost the requisite mental intention of ordinarily residing in Hong Kong.

This appeal

8.  On this appeal Mr Fok SC, who appeared on behalf of the second and third respondent relied on five propositions of law.  They were as follows:

(a)	The presence of a person in Hong Kong without permission does not constitute ordinary residence: section 2(4)(a)(ii) of the Ordinance.
(b)	Where a person who is ordinarily resident in Hong Kong leaves Hong Kong temporarily he may be treated as still remaining ordinarily resident so long as such absence is during a valid limit of stay which has not expired.
(c)	Where a person who has been ordinarily resident in Hong Kong leaves because his permission to stay ends the period of absence from Hong Kong cannot be treated as ordinary residence.
(d)	The provisions of section 2(6) of the Ordinance must be read with the foregoing propositions in mind, thus the “circumstances of the person” which the subsection makes relevant will include the question of whether the person was entitled to be in Hong Kong during that period of absence.
(e)	The common law concept of ordinary residence is not a purely subjective matter.  It is also necessary to see what has happened as a matter of objective fact during the period and this includes whether a person would be entitled to remain.

9.  Although I have no doubt that these propositions are correct, it seems to me that this case is governed by one very simple proposition namely that it is impossible for somebody to be ordinarily resident in a place when he cannot be resident there.

10.  As explained in the Shah case ordinary residence has to be understood in its natural meaning.  As is acknowledged in the reported cases, a person who is ordinarily resident in a particular place is, of course, at liberty to travel and move from place to place.  Such a person will remain ordinarily resident in his place of ordinary residence even when he is away.  It is possible that a person may have two places in which he can be ordinarily resident at the same time.  That is not common but it is certainly possible.  Despite all that, ordinary residence must entail presence in that place and if a person cannot lawfully be in that place he cannot reside there, still less can he be ordinarily resident there. 

11.  After 31 December 1999 the applicant could not lawfully remain in Hong Kong.  He acknowledged that in his evidence: see page 29 of the English translation of the transcript of the Appeal before the Tribunal on 15 July 2002.  He cannot thereafter have been resident and for that reason cannot claim to have been ordinarily resident.  Section 2(4)(a)(ii) of the Ordinance really only emphasises the same point.  That reads:

“(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-
…		(ii)	in contravention of any condition of stay;”

A person cannot be in any better position to claim to be ordinarily resident because he is not physically in a place where, if he were present, his residence would not be treated as being ordinary residence.

Hon Le Pichon JA:

12.  I agree.

Hon Sakhrani J:

13.  I also agree.