ATTORNEY GENERAL v. THE REGISTRATION OF PERSONS TRIBUNAL and Another

1997, No. AL 5

IN THE MATTER OF an application for judicial review
and
IN THE MATTER OF the decision of the Registration of Persons Tribunal dated 31 January 1997 allowing the appeal by Miss Tan Helen

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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1. This is an application for judicial review pursuant to leave I granted myself.

2. The case concerns a lady who has been living in the Philippines but is partly Chinese and she came to Hong Kong as a domestic helper. She was born in December 1956 and when she was nearly 30, she came to Hong Kong as a domestic helper in May 1986 and has had certain employment contracts. However, on 12^th March 1992, her 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^th March 1993.

3. She has made a claim to be a Hong Kong permanent resident. The statutory framework is found in Cap. 115, Schedule 1 which says : "Any person who is wholly or partly of Chinese race and has at any time been ordinarily resident in Hong Kong for a continuous period of not less than 7 years is a Hong Kong permanent resident." The statutory exceptions to that, however, are found in s.2(4) where people are not and shall not be treated as ordinary resident during any period in which they remain in Hong Kong without the authority of the Director or in contravention of a limit of stay or refugee, etc.

4. The position is, therefore, simply this: this lady who is partly of Chinese race, can be treated as being ordinary resident if she has been residing here for 7 years. Now that is essentially a question of fact. The legislature has given the right to determine these factual questions to the Registration of Persons Tribunal which is a body of persons who hear appeals from the citizens of Hong Kong when the Commissioner of Registration refuses to give them a permanent I.D. card.

5. As I have said, ordinary residence is a question of fact, it does not require really authorities, Cheung J. recently in Lau San Ching v. Liu, Apollonia (1995)5 HKPLR 23 has set out a number of very helpful guidelines, it really is a question of intention.

6. The Tribunal heard all of the evidence, they heard the appellant giving her evidence and her explanations and listened to all of them. At the end of the day, they gave a reasoned decision which, if I may say so, is very clearly set out and demonstrated that they know what their role is, and they said : "After hearing both parties and considering the evidence, we've come to the conclusion that on the particular facts of the case, it is more likely than not that the appellant's intention to settle has continued during the intervening period between 15^th April 1992 and 13^th March 1993. We are satisfied that the appellant has been ordinary resident in Hong Kong for the requisite period".

7. Mr Shieh, appearing on behalf of the Commissioner of Registration accepts her ordinary residence from 1986 to 1992, however says that she was not ordinary resident during this period. He seeks to challenge this. First of all, he says in his application that it was an unreasonable decision that has now been abandoned. It is clear that this particular Tribunal examined all of the matters and they came to the conclusion that although she had gone back to the Philippines, her intention remained that of being resident in Hong Kong and that she was trying to get back. She had tried to get back as a secretary, that was refused, but eventually has to come back as a domestic helper.

8. He therefore says that although they conceded that point is wrong, there is a point of law because the Immigration control practice by the Director of Immigration to Filipinas, either they are of Chinese race or just ordinary Filipinas, when their contracts finished, even though, for example, they had been seriously abused by their employer and therefore they have to leave him, they get 14 days and after that, they got to leave Hong Kong. That is a matter for the Director to decide whether people should stay here and it does not affect one's residence intention because the person might be able to get straight back again in a few days' time. Clearly, the Immigration status, in my judgment, is not decisive in deciding whether or not a person is ordinary resident, see for example the well known case of R. v. Barnet LBC, Ex. p. Shah [1983]2 AC 309.

Mr Paul Lam's view, which was clearly set out in his written submission, that it is a relevant factor because it may be a factor that you weigh in the balance as to whether or not a person does have an intention to settle here. But, in my judgment, it is not a decisive factor.

9. 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 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.

10. It was a question of fact whether she has been here as ordinary resident, it may be the tribunal listening to the evidence could have come to a different view, I do not know. But this tribunal looked at the matter very carefully, they came to the view that she had been here for the requisite period of time and having regard to the abandonment by the Attorney on the unreasonable point, in my judgment, the point of law does not prevail here. I would hold that this lady is entitled to have a permanent identity card and therefore refuse the relief sought by Commissioner of Registration and I dismiss his application.