ABAYOMI BAMIDELE FAYOMI v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 60/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 60 OF 2009

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BETWEEN

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J U D G M E N T

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Introduction:

1.  By these proceedings Mr Fayomi seeks to challenge by way of judicial review two decisions:

(i)  a decision of the Director of Immigration dated 9 May 2007, that Mr Fayomi is not eligible for permanent resident status pursuant to Schedule 1 para 2(d), Immigration Ordinance, Cap 115 (the Ordinance), and

(ii)  a Deportation Order made by the Secretary for Security dated 22 May 2007, requiring Mr Fayomi to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter.

2.  The relief sought comprises the quashing of both decisions, and a declaration that Mr Fayomi is eligible for permanent resident status in Hong Kong. As a permanent resident Mr Fayomi would not be liable to deportation.

The requirements for permanent resident status:

3.  As a consequence of the decision in Prem Singh v Director of Immigration & Anor (2003) 6 HKCFAR 26 at §49, three conditions must be satisfied in order to qualify as a permanent resident under the provisions of Article 24 (4) of the Basic Law:

(i)  the applicant must have entered Hong Kong with a valid travel document, (the entry requirement);

(ii)  the applicant must have ordinarily resided in Hong Kong for a continuous period of not less than seven years, (the residence requirement); and

(iii)  the applicant must have taken Hong Kong as his place of permanent residence, (the permanence requirement).

4.  In respect of the residence requirement, the reckoning of the period of seven years continuous ordinary residence must occur immediately before the application to establish permanent resident status: see Schedule 1, para 1(4)(b) of the Ordinance. The constitutionality of this provision was upheld by the Court of Final Appeal in Fateh Muhammad v Commissioner of Registration & Anor (2001) 4 HKCFAR 278.

5.  It is accepted that Mr Fayomi meets the entry requirement. The primary issue in this case is whether or not he meets the residence requirement.

6.  It is the Director of Immigration (the Director) who determines whether or not a person is entitled to stay in Hong Kong, either conditionally or unconditionally, as distinct from merely being a visitor. The presentation to an Immigration Officer, by a person not holding any right to stay in Hong Kong, of a passport or other valid travel document at a lawful entry point in Hong Kong is treated as an application for a Visitor’s Visa.

7.  Once lawfully in Hong Kong, or prior to entry to Hong Kong through appropriate channels, a person may seek the right of conditional stay in Hong Kong, for example for the purposes of employment. In other circumstances a person may seek unconditional stay in Hong Kong. If the Director determines that a person is entitled to stay conditionally or unconditionally in Hong Kong, as distinct from staying merely as a Visitor, that person must then make application to the Commissioner of Registration (the Commissioner) pursuant to the Registration of Persons Ordnance, Cap 177 (ROP Ordinance) for an identity card.

8.  Upon a person believing that they meet all three requirements for permanent residence, on that person making an application to the Commissioner for a permanent identity card, the application is referred to the Immigration Department for verification of eligibility for permanent identity card. This is an exercise which attracts the unnecessary acronym VEPIC.

9.  The posts of Director of Immigration, (established under s 3 & Schedule 1, Immigration Service Ordinance, Cap 331) and Commissioner of Registration, (established under s 2(1) ROP Ordinance) are occupied by the same individual.

10.  It appears from the evidence that the duties of the Commissioner are discharged by the Registration of Persons subdivision of the Immigration Department, which subdivision is responsible for issuing Hong Kong identity cards to persons entitled to conditional or unconditional stay in Hong Kong. Within that subdivision is a Right of Abode Section which is responsible for processing applications for VEPIC.

The background facts:

11.  Mr Fayomi was born on 14 February 1958 in Ondo, Nigeria, and is now aged 59. He first came to Hong Kong on 4 August 1994, when he was granted a 3 month Visitor’s Visa. His evidence was that he came to Hong Kong to “explore business and opportunities”.

12.  He remained in Hong Kong for eight days, and on 11 August 1994, departed Hong Kong for China. He returned to Hong Kong on 16 August 1994, after a four-day absence. On his return to Hong Kong he was granted a new Visitor’s Visa, this expiring on 16 November 1994. Mr Fayomi left Hong Kong after 51 days, prior to the expiry of this Visa, on 5 October 1994. He was absent from Hong Kong for 38 days, re-entering on 13 November 1994, when he was granted a new Visitor’s Visa which was due to expire on 13 February 1995.

13.  Thereafter, until 31 March 1997, Mr Fayomi lived in Hong Kong, occasionally leaving Hong Kong, but returning, either immediately on the same day or within two or three days.

14.  On three occasions he stayed away longer than three days. In October-November 1994, the absence was for 38 days, in June-July 1996, for 27 days, and in October 1996, for six days. On each occasion of return, until May 1996, Mr Fayomi was granted a new three-month Visitor’s Visa. Thereafter, on one such occasion, in September 1996 he was again granted a new three-month Visitor’s Visa, in July 1996, he was granted a three-week Visitor’s Visa, and in October 1996, a two-week Visitor’s Visa. Finally, in February 1997, he was granted a one-month Visitor’s Visa, which was extended to 9 April 1997.

15.  On 14 occasions he was granted an extension of his Visitor’s Visa, enabling him to stay in Hong Kong without having to leave and re-enter and obtain a new Visitor’s Visa.

16.  In total, Mr Fayomi was granted 16 Visitor’s Visas between 4 August 1994 and 18 February 1997, which, together with the extensions, enabled him to stay in Hong Kong for that whole period with the exception of a total of 82 days.

17.  On two occasions between 1994 and 1997 Mr Fayomi attempted to change his immigration status from that of “Visitor” to conditional stay in the category “Employment”. Both applications were refused, and Mr Fayomi took no steps to challenge those decisions.

18.  On 4 August 1996, in Hong Kong, Mr Fayomi married Ms Linda Elizabeth Fancy, a permanent resident of Hong Kong. On 7 August 1996, Mr Fayomi applied to change his immigration status from “Visitor” to conditional stay in the category “Dependent” of his wife. Following a number of extensions of his Visitor status, that application was approved on 4 April 1997, and he was thereafter permitted to remain in Hong Kong as a Dependent. He was issued with a Hong Kong identity card, carrying a “C” code, that is for conditional stay in Hong Kong. Although it is not clear from the papers, it is likely that the condition of stay was that Mr Fayomi remained a dependent of his wife.

19.  His conditional stay in Hong Kong was extended on a number of occasions, ultimately to 1 April 2003.

20.  On 21 January 2003, Mr Fayomi applied to remain in Hong Kong unconditionally. On 7 May 2003 a letter was sent to Mr Fayomi inviting him to attend the Extension Section of the Department of Immigration, and to bring with him his Hong Kong identity card, his passport and financial proof in relation to himself and his spouse.

21.  On 20 May 2003, he attended the Immigration Department, supplying those documents, as a consequence of which his application for unconditional stay was then approved. Having been granted unconditional stay, Mr Fayomi was now entitled to an identity card bearing the code “U”, signifying his residential status as being unconditional.

22.  The bureaucratic procedures of the Department of Immigration required that Mr Fayomi thereupon complete a form known as “ROP 1”, entitled: “APPLICATION FOR A PERMANENT IDENTITY CARD/AN IDENTITY CARD BY A PERSON OF THE AGE OF 18 YEARS OR OVER - REGISTRATION OF PERSONS ORDINANCE CAP 177.”

23.  Although that form was completed at the request of officers of the Immigration Department, it is the Commissioner of Registration, discharging his responsibilities under the ROP Ordinance, who deals with the VEPIC procedure, those responsibilities being carried out by persons in the Registration of Persons section of the Immigration Department. Those officers are entitled Registration Officers, as distinct from Immigration Officers.

24.  There is a box in the form ROP 1 in which the applicant may answer the question: “Have you been ordinarily resident in the HKSAR for a continuous period of not less than 7 years?”. Mr Fayomi ticked the box for “Yes”.

25.  It is accepted by Ms Sit, that the consequence of the decision of the Court of Appeal in Yoothip v Secretary for Security & Commissioner of Registration CACV 276/2006 (unreported, 22 June 2007), is that, by reason of Mr Fayomi having ticked that box, the Commissioner of Registration was obliged to treat that form as a claim by Mr Fayomi for eligibility for permanent resident status. Upon such a claim for eligibility being made, the Registration Officer is obliged to refer the document to the Director of Immigration for verification. It is appropriate to note that the decision in Yoothip was more than four years after Mr Fayomi completed the ROP 1 form.

26.  The Registration Officer, in fact, did not make that referral, but instead issued Mr Fayomi with an identity card bearing the code “U”. The reason why the referral was not made was not explained by the evidence. Instead, the Immigration Officers who made affidavits asserted that as at 20 May 2003, Mr Fayomi had not been ordinarily resident in Hong Kong for seven years. Consequently, they said, had had the application being referred for verification, it would not have been verified.

27.  On 15 September 2004, Mr Fayomi was arrested by the Hong Kong Police, and on 18 September 2004 was remanded in custody pending trial. On 12 April 2005, he was convicted on three counts of dealing with property known or believed to represent the proceeds of an indictable offence. He was sentenced to a term of imprisonment for three years and three months. Although he had lodged an appeal against the conviction, that was subsequently withdrawn. An appeal against the sentence was dismissed on 22 December 2005.

28.  On 14 December 2005, the Immigration Department served on Mr Fayomi a Notice of Consideration of Deportation. That notice informed Mr Fayomi that if he wished to make any representations on the proposed deportation order he should do so within 14 days of the receipt of that notice.

29.  On 24 December 2005, Mr Fayomi’s wife sent a letter by fax to the Immigration Department objecting to the proposed deportation order. The letter stated that Mr Fayomi had unconditional stay, that he was eligible to apply for permanent residence, but that he had been too busy to do so. No further submissions were made.

30.  On 20 March 2007, seven days prior to his expected date of discharge, Mr Fayomi was interviewed by the Immigration Department in prison. He was informed that the Immigration Department had not received any representations from him other than the letter from his wife referred to above. Mr Fayomi requested that the Immigration Department should make contact with a particular friend and also asserted that he should have the right of abode in Hong Kong. He then produced to the Immigration Department written submissions setting out reasons objecting to the proposed deportation.

31.  An Immigration Officer subsequently contacted Mr Fayomi’s friend, subsequent to which solicitors for Mr Fayomi were instructed. On 27 March 2007, the solicitors wrote to Immigration Department making submissions against the deportation order.

32.  That letter was referred to the Deportation Section who, on 10 April 2007, wrote to the solicitors advising:

(i)  Mr Fayomi had never applied for verification of permanent identity card;

(ii)  he was not the holder of a permanent identity card;

(iii)  he was not a Hong Kong permanent resident; and

(iv)  he had no claim on Hong Kong.

33.  On the same day the Immigration Department received an application for verification of eligibility for permanent identity card signed by Mr Fayomi on 29 March 2007. Because, as a matter of law, periods of imprisonment cannot count towards the relevant period of seven years, (see Fateh Muhammad), the fact that Mr Fayomi had been in custody from 18 September 2004 to 27 May 2007, meant that inevitably, he was found not to have the appropriate seven years ordinary residence immediately before the application for verification was made. On 9 May 2007, Mr Fayomi was notified of that decision, now the subject of the application for judicial review.

34.  On 29 May 2007, Mr Fayomi petitioned the Chief Executive by way of appeal against the refusal of the Registration of Persons Sub-division to verify the permanent identity card application. Petitions have also been lodged in respect of the proposed deportation.

35.  A number of submissions were made over a period of time in support of those petitions, and on 14 January 2009, the appeal by way of petition against the refusal to verify the period of seven years continuous residence was refused. No decision has yet been made on the petition against the decision to deport.

The 9 May 2007, decision:

36.  Mr Ng was obliged to acknowledge that any application made by Mr Fayomi filed while he was in jail custody, for verification of the status of an ordinary resident of Hong Kong for a period of not less than seven years immediately prior to the application was bound to fail. When a person is in jail custody he is not ordinarily resident in Hong Kong, thus any application made while in jail custody will fail, because the applicant is not ordinarily resident in Hong Kong immediately prior to making the application, (see para 33 above).

37.  Consequently, the application for judicial review of the 9 May 2007, decision must fail.

The 20 May 2003, application:

38.  Consequently, Mr Ng was forced to rely upon the application for an identity card made by Mr Fayomi on 20 May 2003, containing as it did an inherent request for verification.

39.  Ms Sit, correctly in my view, did not seek to contend that Mr Fayomi was not ordinarily resident in Hong Kong after 31 March 1997, the date when he entered Hong Kong and was permitted to remain as a dependent to his wife. But for Mr Fayomi to have seven years ordinary residence in Hong Kong on 20 May 2003, he must have been ordinarily resident in Hong Kong no later than 20 May 1996.

40.  Between 4 August 1994, and 29 March 1997, Mr Fayomi was present in Hong Kong from time to time, his presence in Hong Kong being permitted by virtue of a Visitor’s Visa. During that period he entered Hong Kong, for various periods of time, leaving, and subsequently re-entering, on 17 occasions, as described in paragraphs 11-18 above.

41.  On 31 March 1997, Mr Fayomi re-entered Hong Kong, initially being granted a Visitor’s Visa, subsequently obtaining a Dependency Visa on 4 April 1997, that right being backdated to 31 March 1997. Ms Sit argued that the earliest date upon which Mr Fayomi could claim to have met the residence requirement was 31 March 1997, and consequently, as at 20 May 2003, the required period of seven years would not be completed until 31 March 2004. As at 20 May 2003, Mr Fayomi was, Ms Sit argued, still a little over 10 months short of the required period.

42.  Mr Ng argued that that period between 4 August 1994 and 31 March 1997, should be treated as continuous ordinary residence in Hong Kong, because Mr Fayomi intended to take Hong Kong as his permanent place of residence during that period. Any absence from Hong Kong during that period, Mr Ng argued, was merely a temporary absence that did not break the period of continuous ordinary residence.

43.  I reject that argument.

44.  On each occasion during that period on which Mr Fayomi left Hong Kong, his Visitor’s Visa automatically terminated simply because he ceased to be a Visitor. Consequently, while event outside Hong Kong, Mr Fayomi had no permission to stay in Hong Kong. On each occasion upon which he re-entered Hong Kong his presentation of his passport to a Immigration Officer constituted a new application for a Visitor’s Visa. As it happened, on each occasion that occurred a new permission to stay in Hong Kong was granted to him.

45.  That is plain from the decision in Sun Jie v Registration of Persons Tribunal & Ors FAMV 20/2006, (unreported, CFA, 28 September 2006), per Chan PJ at para 4. In that case the applicant was given permission to remain on the basis of employment, and during the period of his employment had the opportunity to acquire ordinary residence in Hong Kong. Upon his employment being terminated, Mr Sun no longer had permission to remain, that permission being dependent upon the existence of the employment. In exactly the same way, upon the departure of a Visitor, that person then ceasing to be a Visitor in Hong Kong, the permission given by way of a Visitor’s Visa to remain in Hong Kong comes to an end.

46.  In those circumstances, notwithstanding any wish Mr Fayomi may have, during his absence, to remain in Hong Kong, or any desire to take Hong Kong as his permanent place of residence, his absence is, to adopt the words of Chan PJ at para 4 in Sun Jie, “not a merely temporary hiatus in a continuous period of ordinary residence”.

47.  Mr Ng sought to contend that because the status of a departed visitor is not included in the list of persons who shall not be treated as ordinarily resident in Hong Kong in s 2(4)(a) of the Ordinance, it was open to the court to hold that a temporary departure by a person holding a Visitor’s Visa, with the intention of returning to Hong Kong shortly thereafter by way of a new Visitor’s Visa did not constitute a break in the period of ordinary residence.

48.  Again I reject the argument.

49.  A person who has a continuing permission to remain in Hong Kong may leave Hong Kong temporarily, but that permission continues to exist. That is recognised by s 4(6) of the Ordinance. A Visitor’s Visa operates quite differently, plainly the permission to remain in Hong Kong ceasing to exist upon the departure of the visa holder. Thus it is simply not necessary to make provision in s 2(4)(a) for the case of Visitor’s.

50.  I accordingly conclude that during the period between 4 August 1994 and 31 March 1997, Mr Fayomi was, despite his regular presence from time to time in Hong Kong, as a matter of law, not ordinarily resident in Hong Kong.

The effect of Yoothip:

51.  It is clear from Yoothip that Mr Fayomi’s application for an identity card in form ROP 1, made on 20 May 2003, should have been referred to the Commissioner for the VEPIC procedure. But the answer that would inevitably have come back would have been that Mr Fayomi had not been ordinarily resident in Hong Kong for a period of seven years.

52.  The case advanced for Mr Fayomi was that had the Director of Immigration properly discharged his duty on 20 May 2003, and referred Mr Fayomi’s application for VEPIC, Mr Fayomi would have learned, upon the refusal of verification, that he was not entitled to claim the period during which he was in Hong Kong under a Visitor’s Visa. It is argued that he would then have known that, at least by 31 March 2004, he would have been arguably ordinarily resident in Hong Kong, notwithstanding any temporary absences, by virtue, first of his dependency visa granted on 4 April 2004 and subsequently by his right of unconditional stay from and after 20 May 2003.

53.  Mr Ng argued that had Mr Fayomi known of those circumstances he would have been able between 31 March 2004, and his arrest on 15 September 2004, to have made application for a permanent ID card, claiming seven years ordinary residence, which would have been likely to have been verified. Mr Ng argued that by breaching his duty to refer the 20 May 2003 application for verification Mr Fayomi was deprived of the opportunity to make an application during the period of eligibility.

54.  Ms Sit contended, relying on the decision in Raquiza v Director of Immigration, CACV 272/2006, unreported 3 August 2007, that that because, as at 20 May 2003, Mr Fayomi had not been ordinarily resident in Hong Kong for a period of seven years, he had no rights, and that consequently any argument as to an obligation on the part of the Director of Immigration to advise Mr Fayomi of his rights could not arise.

55.  The court in Raquiza did not consider the consequences of the decision in Yoothip. That is almost certainly because the decision challenged was a decision by the Director of Immigration to refuse to grant an extension of stay on a dependency visa. In such circumstances an issue of verification does not arise.

56.  The situation of Mr Fayomi is different. Upon completing the ROP 1 form, and marking the box claiming ordinary residence in Hong Kong for a continuous period of not less than seven years, a duty arose upon the Director to refer the form for VEPIC. It is quite clear that in failing to undertake verification, the Director was in breach of that duty.

57.  In Naseer Ahmed v Director of Immigration & Anor, HCAL 76/2008, (unreported, 5 December 2008), the court explained that the duty of verification is a duty owed by the Commissioner. Ms Sit originally argued in her skeleton that the Commissioner was not a party to the proceedings, and that the Director, who was a party to the proceedings owed no duty to Mr Fayomi. Upon my informing Ms Sit that, particularly bearing in mind that the Commissioner and the Director are the same person, I would not hesitate to join the Commissioner into the proceedings, even at that late stage, she took instructions and informed me that she would not oppose such a joinder. That was a sensible position to take. In so far as is necessary for the resolution of these proceedings therefore, there will be an order that the Commissioner of Registration be joined as a party to the proceedings.

58.  I am satisfied that the present case is distinguishable from Raquiza, and in the circumstances of this case a duty arose on the Director to refer the application for VEPIC, and on the Commissioner, to notify Mr Fayomi that his claim that he was ordinary resident in Hong Kong for a period of not less than seven years had not been verified.

The consequence of the breach of duty:

59.  Mr Ng argued that the consequence of the breach of duty on the part of the Commissioner to notify Mr Fayomi that his claim was not verified was that Mr Fayomi was consequently unaware of his right to apply for permanent residency between 4 April 2004 and 15 September 2004, and that accordingly he was deprived of that right.

60.  But the argument fails on the evidence. I am satisfied that Mr Fayomi was, all along, aware that his status was merely that of unconditional stay, and that he had not been granted permanent residence.

61.  First, in response to the Notice of Intended Deportation, Mr Fayomi’s wife wrote to the Immigration Department on 24 December 2005 saying:

“ (Mr Fayomi) has lived in Hong Kong in excess of the seven years which is required in order to apply for permanent residence.  He has unconditional stay and was only too busy to apply for his permanent residence however he is eligible for such.” (sic) (the emphasis is mine)

It is plain from that letter that Mr Fayomi knew that he did not have permanent residence in Hong Kong as a consequence of the 20 May 2003 decision, but that he only had unconditional stay status.

62.  Second, in a letter written by Mr Fayomi to the Director, nearly 18 months later, on 20 March 2007, he said:

“As at January 2003 I got the application forms for an unconditional stay and permanent stay in Hong Kong.  I got the application forms from immigration department in Wanchai in 2003.  But I was busy travelling mostly between HK and mainland China, so effect I submitted only my application for unconditional stay at the time because I thought I can pick up my permanent ID card at any convenient time.” (sic) (the emphasis is mine)

On the same day Mr Fayomi dictated a statement to an Immigration Officer containing an explanation as to why he did not get a permanent identity card.  In that statement he acknowledged that in 2003 he was granted unconditional stay in Hong Kong.

63.  Mr Fayomi asserted that this letter, and the statement, were dictated by him under the instruction of an Immigration Officer. This assertion, (paragraph 20 of his first affidavit, repeated at paragraph 13 of his second affidavit), is wholly incredible. The content of his letter is entirely consistent with the letter written by Mr Fayomi’s wife, and there is no suggestion that that was dictated to her by an Immigration Officer. The assertion by Ms Fancy that her letter was merely an excuse for her husband is equally incredible. Had she, at that time, believed that her husband held permanent residence status, I have no doubt that she would have said so.

64.  Further, it is plain that both Mr Fayomi and his wife well knew of the distinction between unconditional stay and permanent residence. Ms Fancy had applied for, and obtained permanent residence prior to 20 May 2004. Consequently it cannot be said that Mr Fayomi’s application for unconditional stay, and his receipt of an identity card that was different to that of his wife, would have been something that would have gone unnoticed by them.

65.  In all of those circumstances Mr Fayomi cannot be heard to say that he was unaware of his status. Had he wished to, he had ample opportunity to make application for a permanent identity card during the 16 months prior to his arrest. He did not do so.

66.  Consequently, although there may have technically been a breach of duty on the part of the Commissioner, that breach has caused no prejudice at all to Mr Fayomi. That is sufficient to justify a refusal of relief on an application for judicial review.

Delay:

67.  The application for judicial review in its original form sought review of a decision made on 9 May 2007, that Mr Fayomi was not eligible for permanent resident status on the ground that he did not meet the residence requirement. That decision was in response to an application made in 2007, for verification of his status by Mr Fayomi at the suggestion of immigration officers.

68.  As the application proceeded it became instead an application for judicial review of the decision made on 20 May 2003, rejecting Mr Fayomi’s assertion in the form ROP 1 that he met the residence requirement. The basis of the argument was that at that time Mr Fayomi in fact met the residence requirement.

69.  The only explanation offered for the delay was that Mr Fayomi believed that he had been issued with a permanent identity card, and assertion which, for the reasons given above, I have rejected.

70.  Leave to bring the proceedings out of time was granted on an ex parte basis, and no application to set that leave aside has been made. Consequently, the order for live to proceed out of time does not fall to be reopened at the substantive hearing on the basis that there is no ground for extending time: see R v Criminal Injuries Board, ex parte A [1999] AC 330 at 341D. But it is open to the court, where there is delay, to refuse to grant relief: see 341F.

71.  Although it is not necessary to reach a conclusion on the delay issue, for the sake of completeness I record that were the application for judicial review and application to review the 20 May 2003 decision, the delay is such that relief ought to be refused.

The Deportation decision:

72.  Having found that there is no basis to review the decision of the Director, either in respect of the 20 May 2003, decision, or the 9 May 2007 decision, the deportation decision is unimpeachable, Mr Fayomi having no right of abode in Hong Kong.

Conclusion:

73.  For the foregoing reasons the application for judicial review must be dismissed. Mr Fayomi must pay the Respondents costs on the application, to be taxed on a party and party basis.