SINGH GILL JATINDER v. DIRECTOR OF IMMIGRATION AND OTHERS

HCAL 2/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2 OF 2016

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D I R E C T I O N

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Introduction

1. This is my direction arising from fairly unusual circumstances in relation to an application for leave to apply for judicial review. The applicant has been involved in a long running dispute with the Director of Immigration over his entitlement to right of abode in Hong Kong.

2. The Director took and maintained the view that the applicant was not entitled to right of abode.  It would appear that because the applicant was convicted of criminal offences during this period, deportation proceedings were issued against him, resulting in his detention on a number of occasions in an effort to deport him. 

3. Eventually, the applicant brought the present judicial review proceedings and upon a review of his case the Director has now acknowledged that the applicant is entitled to right of abode.

Application for judicial review

4. These proceedings commenced when the applicant filed a notice of application for leave to apply for judicial review on 4 January 2016 in which he seeks to challenge a number of decisions by the Director of Immigration (on 7 April 2005 and 10 February 2012 denying him right of abode and ordering the detention of the applicant pending deportation on various periods from 8 April 2009 to present), the Commissioner of Registration (on 25 and 26 April 2005 declaring the applicant’s permanent resident identity card invalid and refusing to issue a permanent identity card with right of abode endorsement) and the Secretary for Security (on 28 July 2005 for the detention of the applicant pending deportation and on 9 April 2009 issuing a deportation order against the applicant). 

5. The relief sought by the applicant includes the following declarations:

(1)  A declaration that the applicant had acquired rights of abode under the former status of Hong Kong belonger and Hong Kong permanent resident, which rights have been continued in HKSAR under the transition scheme of the Basic Law, and section 23 of the Interpretation and General Clauses Ordinance, Cap 1.  Alternatively, a declaration that the applicant is a permanent resident under section 2A of the Immigration Ordinance, and is entitled to right of abode in HKSAR under that section.

(2)  A declaration that, given his right of abode in HKSAR, he is not amenable to any deportation order, and any decisions by the Secretary for Security, the Director of Immigration, the Commissioner of Registration, or other officials of the HKSAR Government inconsistent with such a right are unconstitutional and unlawful.

(3)  A declaration that paragraph 6 of Schedule 1 to the Immigration Ordinance, Cap 115, does not apply to the applicant; it is in any event unconstitutional, if it does apply to extinguish or diminish his right of abode.

(4)  A declaration that paragraph 7 of Schedule 1 to the Immigration Ordinance does not apply to the applicant; it is in any event unconstitutional, if it does apply to extinguish or diminish his right of abode.

(5)  A declaration that the decisions of the Director of Immigration dated 7 April 2005 and 10 February 2012 respectively to deny him his enjoyment of right of abode in HKSAR is unconstitutional and unlawful.

(6)  A declaration that the decision of the Commissioner of Registration dated 26 April 2005 not issuing to him a Hong Kong Permanent Identity Card with endorsement of right of abode in HKSAR is unconstitutional and unlawful.

(7)  A declaration that the decision of the Commissioner of Registration dated 25 April 2005 declaring the invalidity of the applicant’s Hong Kong Permanent Identity Card is unconstitutional and unlawful.

(8)  A declaration that the Deportation Order issued against the applicant by the Secretary for Security on 9 April 2009 is unconstitutional and unlawful.

(9)  A declaration that the Authorization for Detention by the Secretary for Security on 9 April 2009 of the applicant pending deportation is unconstitutional and unlawful.

(10)  A declaration that the following periods of detention of the applicant pending deportation under orders of the Director:

(a)  8 April 2009 to 13 July 2009;

(b)  25 March 2010 to 21 April 2010;

(c)  8 September 2012 to 31 October 2012;

(d)  9 February 2015 to 5 May 2015; and

(e)  2 January 2016 to present (the date of the application),

are unconstitutional and unlawful.  

6. Damages are also sought by the applicant for such periods of unlawful detention.

Background facts

7. The following provides a brief summary of the facts and circumstances giving rise to the application.  The applicant was born in Hong Kong on 30 May 1978 to parents of Indian origin.  His birth was registered here.  His father was a native born Indian who was a former Hong Kong resident with unlimited stay granted in 1988.  His mother was an Indian born in Hong Kong who was a Hong Kong belonger with the right to land since 1983. 

8. In 1989, the applicant applied for and was issued with a Hong Kong permanent identity card.  He went to school in Hong Kong and in 1994 left Hong Kong for India with his family.  He was a holder of both an Indian passport and a British National (Overseas) passport. 

9. The applicant returned to Hong Kong with his family on 9 January 2005.  He made an application for a new permanent identity card and it was from then on that he was denied right of abode status and embroiled in a dispute with the Director of Immigration. 

10. It was also during this period that the applicant was convicted of a number of criminal offences which seemed to have prompted a series of deportation proceedings being issued against him. 

Consideration of the application

11. This application was submitted to me on 11 April 2016 to decide, on the papers, whether to grant leave, and if not to conduct an oral hearing as requested.  The application raises a similar constitutional argument that is to be addressed in Sherpa Shove v Director of Immigration and Ors, HCAL 6/2014, which is fixed to be heard on 26, 27 and 30 May 2016. 

12. After consideration of the papers, I issued a direction where the applicant was informed that I was inclined to grant leave on the constitutional argument but refuse leave on the rest of the decisions which were out of time, as I did in Shove’s case, and the applicant was requested to confirm whether in that event he still wished to have an oral hearing in relation to the decisions I was minded to refuse. 

13. In Shove’s case, the decisions under challenge were made out of time but the applicant raised a constitutional argument that I ruled was reasonably arguable.  It was also noted that if the applicant was successful on the constitutional argument it may result in certain consequential declarations or orders.  The applicant in the present case, as far as I could ascertain, was in a similar position. 

Shove’s case

14. In Shove’s case, leave to bring judicial review was granted to the applicant to mount a constitutional challenge in relation to the right of abode of a non-Chinese prior to and after 1 July 1997. 

15. In that case, as in the present case, the applicant challenges a series of official decisions that are out of time and where no action had been taken in relation to the decisions during the relevant period but which stand or fall on the outcome of the constitutional argument. It was therefore on the basis of the constitutional argument only that leave was granted, although if successful consequential declarations or orders may arise. 

16. It is submitted that the applicant acquired right of abode as a result of three legal bases prior to the change of sovereignty which were intact as at 30 June 1997 and to which the constitutional transition scheme of the Basic Law applied and thereby conferred upon him right of abode in the HKSAR.  Without going into the intricate details of the argument, it is argued that the applicant acquired right of abode under his former status as a Hong Kong belonger and later as a Hong Kong permanent resident which he retained as at 30 June 1997 and as a Hong Kong permanent resident by virtue of section 2A of the Immigration Ordinance, Cap 115.  It is further argued that in so far as paragraphs 6 and 7 of Schedule 1 of the Immigration Ordinance deprives a non-Chinese of their status as a permanent resident and/or right of abode they are unconstitutional and invalid.  The argument is more fully explained in the decision granting leave. 

17. The applicant in the present case is running a similar argument in relation to his particular circumstances.  In fact, he is seeking very similar reliefs as in Shove’s case.  In the present case, there are a number of old decisions that are out of time.  I was of the initial view that the same approach should be taken in the present case as I did in Shove’s case and grant leave to the applicant to apply for judicial review on the constitutional argument only. 

Direction from the Court

18. Accordingly, I gave a direction on 3 May 2016 that I was inclined to grant leave on the constitutional argument but refuse leave in relation to the rest of the decisions on the same basis that I did in Shove’s case and if the applicant did not request an oral hearing for the other decisions for review, I was minded to have the present proceedings heard together with Shove’s case. 

19. The applicant through his solicitors relinquished his right to an oral hearing in relation to the other decisions if leave was refused on the papers.  

20. The Department of Justice on behalf of the Director of Immigration, the putative respondent, put forward a counter proposal that the case be adjourned until the Shove’s case was finally determined as this would provide guidance for the parties on how to deal with the present case and give time to the Director of Immigration and/or Secretary for Security (or any other respondents named by the applicant) to prepare full evidence. 

21. The solicitors for the applicant did not agree to adjourn the proceedings and pointed out that the putative respondents had three weeks to prepare their case which was limited to a constitutional argument which was similar to the one to be argued in Shove’s case. 

22. The Department of Justice maintained its position that there was insufficient time available to prepare evidence for the case and that the decision in Shove’s case would provide guidance to the present and other cases. 

23. In light of the exchange of correspondence between the parties, I fixed the matter for hearing on 10 May 2016 to hand down my decision on the applicant’s application for leave to apply for judicial review and thereupon to hear from the parties on the way forward. 

Director of Immigration’s change of position

24. By letter dated 9 May 2016 from the Department of Justice, the Court was informed that the Right of Abode Section of the Immigration Department had recently reviewed the applicant’s case and decided that the applicant had the right of abode in Hong Kong under paragraph 2(f) of Schedule 1 to the Immigration Ordinance, and thus he is eligible for the issue of a Hong Kong permanent identity card.  The Court was also informed that the Permanent Secretary for Security had taken steps to rescind the deportation order issued against the applicant. 

25. The Department proposed that in light of this development, the present proceedings be adjourned sine die for the parties to negotiate on the issues of damages and costs of these proceedings. 

26. The Department also noted that the reassessment of the applicant’s entitlement to right of abode in Hong Kong had nothing to do with any of the pleaded grounds of judicial review in the applicant’s application for leave to apply for judicial review and was without prejudice to the Director of Immigration’s position in relation to the issues and arguments to be decided by the Court in Shove’s case. 

27. The parties filed a consent summons for an order to vacate the directions hearing and subject to the handing down of the judgment on the leave application, all further proceedings be adjourned sine die for the parties to negotiate on the issues of damages and costs of the proceedings with liberty to restore. 

Hearing on 10 May 2016

28. The hearing proceeded on 10 May 2016 but I did not hand down a decision on the leave application in light of the recent developments in the case. 

29. At the hearing, Ms Bethany Choi, counsel for the Director of Immigration, confirmed that the Director of Immigration conceded that the applicant was entitled to right of abode under paragraph 2(f) of Schedule 1 to the Immigration Ordinance.  She submitted that as a consequence the substance of the application had been addressed except for the quantum of damages for the periods of unlawful detention. 

30. Mr Edwin Lau, for the applicant, generally agreed that there remained only the issue of damages between the parties but reserved his position with respect to the application in the event there was a change of position or circumstances. 

31. It would seem that given the concession made by the Director of Immigration, the principal issue the subject of the proceedings has been resolved.  It is yet clear what matters arise and need to be resolved between the parties as a result of the concession by the Director.

32. The parties requested that they be given 4 months in an effort to negotiate and settle all matters in relation to or arising from the application, in particular the question of damages for the periods of detention. 

Direction

33. In consequence of the recent events, I have not decided upon the leave application which I have placed in abeyance pending the outcome of the discussions between the parties.  I will therefore fix a hearing of the proceedings for 10 am on 30 September 2016 to give the parties the time that they have requested to resolve the matters in relation to or arising from the application. 

34. In the event that the matters pertaining to this application are resolved between the parties, I note the requirements of paragraph 23 of Practice Direction SL3 in relation to uncontested proceedings. 

35. On the question of costs of this application, I order that costs be granted to the applicant and such costs to be taxed in accordance with the Legal Aid Regulations.