PHAGAMI, SHIVA v. REGISTRATION OF PERSONS TRIBUNAL

HCAL 1028/2022

[2022] HKCFI 3105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1028 OF 2022

________________________

________________________

_____________

D E C I S I O N

_____________

A.  Introduction

1.  By his Form 86 dated 30 September 2022, the Applicant seeks leave to apply for judicial review to challenge the decision in the Determination of the Registration of Persons Tribunal made on 19 September 2022. In the Determination, the Tribunal dismissed the Applicant’s appeal against the decision of the Commissioner of Registration dated 17 June 2021 to refuse to issue a Hong Kong permanent identity card (“HKPIC”) to the Applicant.

2.  The Applicant’s affirmation in support of his Form 86 simply states:

My Appeal is dismissed by the Registration of Persons Tribunal on 19 Sep 2022. The said decision is totally not reasonable and I would request for re-view the said decision. Enclosed herewith total page(s) 18 Exhibit-A.

3.  The exhibit is the Tribunal’s Notice of Determination of an Appeal after a Hearing, together with the Determination itself.

4.  The content of those documents themselves demonstrate that the present intended challenge is utterly without merit.

B.  Background

5.  The necessary background can be canvassed briefly.

6.  The Applicant was born in Nepal on 24 December 1990. He married a Hong Kong resident in Nepal on 20 November 2009, on the basis of which he applied for entry to Hong Kong as a dependant of his wife. A dependant visa was granted on 25 August 2011, and the Applicant entered Hong Kong with permission to remain first until 18 September 2012. Permission to remain on dependant status was subsequently extended until 18 September 2015.

7.  On 15 September 2015, the Applicant submitted an application for extension of stay without a sponsor, claiming that his marital status had changed from “married” to “separated”. The application was refused on 12 April 2016, and the Applicant was informed that his dependant status had already expired on 18 September 2015, and he was required to leave Hong Kong within 14 days. Through various legal representatives, the Applicant requested reconsideration of his application. The requests for reconsideration were refused on 16 August 2016 and 16 June 2017, on the basis that the Director found no reason or justification to reverse his earlier decision. Each time the Director of Immigration reiterated that the Applicant’s limit of stay in Hong Kong had already expired on 18 September 2015, so that his continued presence in Hong Kong was a breach of his condition of stay.

8.  The Applicant unsuccessfully applied for legal aid with a view to seeking leave to apply for judicial review against the last reconsideration refusal. In later correspondence, the Applicant was required by the Director to depart from Hong Kong on or before 22 June 2018. He did not leave, but instead surrendered on 25 June 2018. He was released on recognizance the same day.

9.  On 13 February 2019, the Applicant was convicted of a breach of condition of stay (overstaying) and was sentenced to 2 days’ imprisonment, suspended for 12 months. On 11 April 2019, a removal order was made against him, which he indicated he did not intend to appeal.

10.  On 4 October 2018, the Applicant sought verification of eligibility for permanent identity card (“VEPIC”), but he was informed on 1 April 2019 that his claim to Hong Kong permanent resident (“HKPR”) status could not be established on the ground that the Applicant had not ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately prior to the VEPIC application. Nevertheless, on 7 May 2019, he applied for a HKPIC, which application was refused on the same day on the ground that there was insufficient evidence to show that the Applicant had the right of abode in Hong Kong. The Applicant lodged an appeal to the Tribunal against that refusal, but subsequently abandoned it. His attempt later to resurrect the abandoned appeal was refused.

11.  On 24 August 2020, the Applicant applied for leave to apply for judicial review against the decision of the Tribunal refusing to reopen his appeal against the Commissioner’s refusal to issue a HKPIC to him. That application was dismissed by Chow J (as Chow JA then was), by his Decision dated 16 December 2020, [2020] HKCFI 3071. It is to be noted that at §19 of his Decision, Chow J said:

… on the facts of the present case, there can be no doubt that the Applicant has failed to show that he “has ordinarily resided in Hong Kong for a continuous period of not less than 7 years”, such period being “immediately before the date when [he applied] to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region” as required by paragraphs 1(4)(b) and 2(d) of Schedule 1 to the Immigration Ordinance, Cap 115. The Applicant was ordinarily resident in Hong Kong for a period of 4 years from 18 September 2011 to 18 September 2015. After that date, he no longer had the permission of the Director to stay or remain in Hong Kong. Under s 2(4)(a)(ii) of the Immigration Ordinance, a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong in contravention of any condition of stay. The Applicant’s stay in Hong Kong after 18 September 2015 cannot therefore be regarded as ordinary residence in Hong Kong.

12.  By reference to that Decision, and independently by its own analysis, the Tribunal held that by virtue of section 2(4)(a)(ii) of the Immigration Ordinance Cap 115 (“Ordinance”), the Applicant shall not be treated as ordinarily resident in Hong Kong during the period in which he remained in Hong Kong in contravention of any condition of stay. As a result, his presence in Hong Kong from 19 September 2015 to 29 December 2020 (the relevant date for looking backwards to see whether he had fulfilled the 7-year ordinary residence requirement) did not amount to ordinary residence. In those circumstances, the Tribunal held that the Applicant failed to fulfil the 7-year ordinary residence requirement, and could not meet any other requirement for HKPR status.

13.  As it happens, it does not matter from what date one considers the position, because the Applicant has never fulfilled a 7-year ordinary residence requirement.

C.  The Current Application

14.  I shall assume in the Applicant’s favour that he has sought to identify a public law ground for his intended challenge to the Decision of the Tribunal, when he described it as “totally not reasonable” – which I shall take as being an allegation that it was irrational or Wednesbury unreasonable.

15.  Nevertheless, the Decision of the Tribunal is clearly neither irrational nor Wednesbury unreasonable. The Tribunal had made no error of law in its consideration as to whether the period of the Applicant’s presence in Hong Kong between 19 September 2015 and 29 December 2020 amounted to ordinary residence under the terms of the Ordinance. Rather, the Tribunal has simply applied the correct law to the facts, and to do so was obviously neither irrational nor unreasonable

16.  In any event, that point had already been decided against the Applicant by Chow J. Therefore, even his appeal to the Tribunal was – and certainly the intended challenge brought by these proceedings is – a collateral attack on that decision. That is an abuse of process.

D.  Result

17.  The intended challenge is unarguable on any public law grounds. Not only is there no reasonable prospect of success, there is absolutely no merit.

18.  The Applicant’s application for leave to apply for judicial review is dismissed. I make no order as to costs.