NOWODZELSKI, STACEY ALAN v. DIRECTOR OF IMMIGRATION

CACV 187/2017

[2018] HKCA 295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 187 OF 2017

(ON APPEAL FROM HCAL 73/2017)

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J U D G M E N T

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Hon Chow J (giving the Judgment of the Court):-

INTRODUCTION

1.  This is the Applicant’s appeal against the order of Au J dated 15 August 2017 dismissing his application for leave to apply for judicial review of (i) a removal order made by the Director of Immigration (“the Director”) against the Applicant dated 7 February 2017 (“the Removal Order”), and (ii) the decision of the Immigration Tribunal dated 2 March 2017 dismissing the Applicant’s appeal against the Removal Order (“the Decision”).

BASIC FACTS

2.  The Applicant was born in the United States of America on 26 October 1966.  He arrived in Hong Kong on 21 December 2007 on employment status and his limit of stay was later extended to 5 January 2010.  From 6 January 2010 to 28 June 2010, the Applicant travelled in and out of Hong Kong intermittently as a visitor.  He last entered Hong Kong on 28 June 2010 and was permitted to remain in Hong Kong as a visitor until 26 September 2010.

3.  On 2 July 2010, the Consulate General of the United States of America, Hong Kong, notified the Applicant that his US passport had been cancelled on the ground that he was the subject of an outstanding warrant of arrest for the felony offence of theft by false representation, and stated that despite the cancellation of his US passport, the Applicant was eligible to be documented for direct and immediate return to the United States of America if he so wished.

4.  The Applicant did not depart from Hong Kong after the expiry of his limit of stay on 26 September 2010.  He has been overstaying in Hong Kong since 27 September 2010.

5.  On 2 November 2016, the Applicant was convicted of the offence of breach of condition of stay contrary to Section 41 of the Immigration Ordinance, Cap 115 (“the Section 41 Offence”).  In what follows, unless the context indicates otherwise, references to sections shall be to the Immigration Ordinance.

6.  On 22 November 2016, the Applicant’s conviction was set aside by the magistrate upon review.  As mentioned in paragraph 5 of the judgment of Au-Yeung J dated 5 December 2017 in HCA 393/2017 (being a civil action commenced by the Applicant against the Director of Immigration claiming damages under a variety of grounds), the acquittal was on the basis that “he did not have the mens rea to overstay and had been staying in Hong Kong involuntarily”.

7.  On 19 January 2017, the Applicant applied for verification of eligibility for permanent identity card (“VEPIC”).  That application was refused by the Director by letter dated 1 February 2017.

8.  On 7 February 2017, the Director made the Removal Order against the Applicant under Section 19(1)(b)(ii).  On 2 March 2017, the Applicant’s appeal against the Removal Order was dismissed by the Immigration Tribunal.

9.  On 13 March 2017, the Applicant applied for leave to apply for judicial review of the Removal Order and the Decision.  As stated in his Notice of Application for Leave to Apply for Judicial Review (Form 86), the ground of his application was that he had not contravened any condition of stay and he had entered Hong Kong legally.  In his affirmation filed in support of the application, the Applicant referred to and relied on the fact that he had been lawfully acquitted of the Section 41 Offence by the magistrate, and complained that in the “Summary of Facts and Reasons for Removal” prepared by the Director for the purpose of the Applicant’s appeal to the Immigration Tribunal pursuant to paragraph 8 of Schedule 3 to the Immigration Rules, Cap 115A, it was stated that the Applicant had contravened his condition of stay by overstaying in Hong Kong since 27 September 2010.

10.  On 15 August 2017, Au J made an order dismissing the Applicant’s application for leave to apply for judicial review, on the grounds (inter alia) that the Applicant had failed to show that he had any reasonably arguable case that (i) he had the right to remain in Hong Kong, or (ii) he had satisfied the legal requirements for the right of abode in Hong Kong, or (iii) he had been given lawful permission by the Director to remain in Hong Kong after the expiry of his limit of stay on 26 September 2010, and the mere fact that he had been acquitted of the Section 41 Offence did not show or prove that he had any lawful right to remain in Hong Kong after 27 September 2010.

11.  In his Notice of Appeal dated 21 August 2017 against the aforesaid order of Au J, the Applicant raises the following substantive grounds of appeal:-

(1)  He has not breached any condition of stay as shown by his acquittal of the Section 41 Offence.

(2)  He has been ordinarily resident in Hong Kong for over 7 years being the period required to become a Hong Kong permanent resident.

(3)  He is a “stateless person” under the 1954 UN Convention Relating to the Status of Stateless Persons and should be “naturalized” under Article 32 of that treaty.

(4)  He is lawfully married to a Hong Kong permanent resident, but his repeated attempts to submit an application for a dependant visa was ignored by the Director, contrary to Sections 5 and 6 of the Family Status Discrimination Ordinance, Cap 527.

DISCUSSION

(i)   First ground: no breach of condition of stay

12.  Section 19(1)(b)(ii) states as follows:-

“A removal order may be made against a person requiring him to leave Hong Kong -

(b) by the Director if it appears to him that that person –

(ii)  …is contravening or has contravened a condition of stay in respect of him.”

13.  And Section 41 provides that:-

“Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence and shall be liable on conviction to a fine at level 5 and to imprisonment for 2 years.”

14.  As earlier mentioned, the Applicant was acquitted of the Section 41 Offence on the ground that he did not have the mens rea and had been staying in Hong Kong involuntarily.  For the purpose of this appeal, we shall proceed on the basis that he was correctly acquitted of the Section 41 Offence on that ground.  It does not follow, however, that for the purpose of making a removal order under Section 19(1)(b)(ii), a person who has overstayed in Hong Kong but lacks the necessary mens rea for the offence under Section 41 should be regarded as not having contravened a condition of stay in respect of him.  We consider it to be the clear legislative intent of Section 19(1)(b)(ii) that a person is liable to be removed from Hong Kong if he has, as a matter of fact and law, no further right to remain in Hong Kong after the expiry of the limit of stay granted to him by the Director even if his continued presence in Hong Kong may be said to be “involuntary” in some sense, eg because he has lost his travel documents.

15.  In the present case, the Applicant’s US passport was cancelled by the immigration authority of the United States of America. Although the letter from the Consulate General of the United States of America to the Applicant dated 2 July 2010 stated that he was eligible to be documented for direct and immediate return to the United States, the Applicant’s position is that he was unable to obtain any form of identification from the Consulate despite his efforts in Hong Kong (see paragraph 4 of the Judgment of Au-Yueng J in HCA 393/2017).  Assuming, for the purpose of the present appeal, that he was indeed unable to obtain the necessary documentation to enable his return to the United States, it remains the case that he has overstayed in Hong Kong since 27 September 2010 and thus is contravening or has contravened a condition of stay in respect of him. Subject to the Applicant’s contention that he is entitled to be regarded as a Hong Kong permanent resident (a matter which we shall consider below), there can be no doubt that the Applicant has had no right to remain in Hong Kong after the expiry of his limit of stay on 26 September 2010 and he is therefore liable to be removed from Hong Kong.  In our view, the Director was lawfully entitled to make the Removal Order against the Applicant on 7 February 2017 based on Section 19(1)(b)(ii).

(ii)   Second ground: Applicant is entitled to be treated as a Hong Kong permanent resident

16.  The second, third and fourth grounds referred to in paragraph 11(2), (3) and (4) above were not raised in the Applicant’s Form 86.  Strictly speaking, they are not open to the Applicant in the present appeal.  We shall, nevertheless, deal with them briefly for the sake of completeness.

17.  The Applicant’s contention that he should not be removed from Hong Kong because he has been ordinarily resident in Hong Kong for over 7 years being the period required to become a Hong Kong permanent resident is plainly unsustainable for the following reasons.

18.  Paragraph 2(d) of Schedule 1 to the Immigration Ordinance states as follows –

“A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region –

(d) A person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than 7 years and has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region”.

19.  In order to qualify as a Hong Kong permanent resident under this paragraph, an applicant must have “ordinarily resided” in Hong Kong for a continuous period of not less than 7 years immediately prior to the date of the VEPIC application.  However, the Applicant here has had no lawful right to stay in Hong Kong after the expiry of his limit of stay on 26 September 2010.  It is well established that “[i]f a man’s presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence” (see Akbarali v Brent London Borough Council, ex p Shah [1983] 2 AC 309, at 343-344 per Lord Scarman).  Likewise, in Sun Jie also known as Sun, Alex J v Registration of Persons Tribunal and Another, CACV 320/2004, 22 December 2005, Rogers VP (with whom the other members of the Court of Appeal agreed) stated, at paragraph 9 of his judgment, that “it is impossible for somebody to be ordinarily resident in a place when he cannot be resident there”.  In other words, during a large part of the period of 7 years immediately before the date of his VEPIC application, the Applicant was not “ordinarily resident” in Hong Kong for the purpose of paragraph 2(d) of Schedule 1 to the Immigration Ordinance.

20.  Further, paragraph 3(2) of Schedule 1 to the Immigration Ordinance expressly provides that -

“A person claiming to have the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) does not have the status of a permanent resident in the Hong Kong Special Administrative Region until he has applied to the Director and the application has been approved by the Director.”

21.  As a matter of fact, the Applicant’s VEPIC application was refused by the Director on 1 February 2017 (his appeal against such refusal to the Registration of Persons Tribunal is currently pending determination).  Since the Applicant’s VEPIC application has not been approved by the Director, he does not have the status of a permanent resident in Hong Kong even if he has otherwise satisfied all the requirements under paragraph 2(d) of Schedule 1 to the Immigration Ordinance.

22.  In all, the Applicant has failed to show that, at the time when the Director made Removal Order on 7 February 2017, or when the Immigration Tribunal made the Decision on 2 March 2017, he had the status of a permanent resident in Hong Kong.  Nor, as a matter of fact and law, does he have status of a Hong Kong permanent resident at present.

(iii)   Third ground: status of a “stateless person”

23.  The ground that the Applicant is a “stateless person” under the 1954 UN Convention Relating to the Status of Stateless Persons and should therefore be “naturalized” under Article 32 of that treaty can be disposed of shortly.  Before this court, the Applicant sought to rely on paragraph 2705 of Title 22 Foreign Relations and Intercourse of the United States Code.  There was no expert evidence on this foreign law.  However, on a literal reading of paragraph 2705, all that it purports to state is that a valid passport is proof of United States citizenship.  It does not purport to state (nor does it follow logically) that the cancellation of a passport is proof of revocation of United States citizenship.

24.  In any event, first, under the dualist principle applicable in this jurisdiction, treaties are not self-executing and, unless and until they are made part of our domestic law by legislation, they do not give rise to any rights or obligations enforceable in the domestic court (see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, at paragraph 43 per Ribeiro PJ; GA v Director of Immigration (2014) 17 HKCFAR 60, at paragraph 58 per Ma CJ; and Comilang v Director of Immigration, CACV 59/2016, 26 March 2018, at paragraph 111 per Poon JA).  Since the 1954 UN Convention has not been “domesticated” in Hong Kong, it cannot give rise to any enforceable rights in favour of the Applicant in this court.

25.  Second, even if the Applicant is a “stateless person” as that expression is defined in the 1954 UN Convention (which is doubtful on the evidence), it is for the Applicant to apply to be naturalized pursuant to Article 7 of the Nationality Law of the People’s Republic of China, which is applicable in the HKSAR by virtue of Article 18 of the Basic Law and Annex III thereto.  There is no evidence that he has made any application for naturalization, still less that such application has been accepted.  In all, the Applicant’s bare allegation that he is a stateless person cannot give rise to any reasonably arguable basis to challenge the Removal Order or the Decision by way of judicial review. 

(iv)   Fourth ground: Family Status Discrimination

26.  The Applicant’s reliance on the provisions in the Family Status Discrimination Ordinance is plainly misconceived. Sections 5 and 6 of that Ordinance referred to by the Applicant relate to “discrimination against a person who has family status” and “discrimination by way of victimization”.  According to the Applicant, his attempts to submit an application for a dependant visa were repeatedly ignored by an immigration officer on 7 December 2016 when he was accompanied by his wife to an interview at the Castle Peak Bay Immigration Centre.  This allegation, even if established, does not begin to show that the Applicant was discriminated against because of his family status under Section 5, or that he was victimized on any of the grounds referred to in Section 6 of that Ordinance.

27.  Further, it does not follow from the fact that a person has made a dependant visa application that a removal order cannot be made against that person under Section 19.  Consideration of an application for a dependant visa does not require the physical presence of the applicant in Hong Kong.  In our view, the Applicant’s bare allegation that he was not allowed to make an application for a dependant visa has no bearing on the lawfulness of the Removal Order made by the Director on 7 February 2017 or the Decision made by the Immigration Tribunal on 2 March 2017.

28.  For the sake of completeness, we would also point out that the fact that the Applicant is married to a Hong Kong permanent resident does not give him any right to stay in Hong Kong under Article 37 of the Basic Law (see Comilang v Director of Immigration, CACV 59/2016, 26 March 2018, at paragraphs 22-23, 62, 68 and 70).

DISPOSITION

29.  For the foregoing reasons, the Applicant’s appeal against the order of Au J dated 15 August 2017 is dismissed with an order nisi that the Applicant is to pay the Respondent’s costs.  The Respondent is directed to provide a statement of costs to the Applicant and the Court within 14 days.  If the Applicant objects to any items in the statement of costs, he may file with the court (with copy to the Respondent) a statement of opposition setting out the items to which he objects within 14 days thereafter.  The court will then undertake a summary assessment of costs.