COMMISSIONER OF REGISTRATION v. REGISTRATION OF PERSONS TRIBUNAL AND ANOTHER

HCAL 11 of 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 11 OF 2013

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J U D G M E N T

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A. INTRODUCTION

1. This is a judicial review brought by the Commissioner of Registration (“Commissioner”) against the decision (“the Decision”) of the Registration of Persons Tribunal (“the Tribunal”) dated 15 October 2012.

2. Mr Man Wai Sing (“Mr Man”) who was born in the UK in 1974 claims that he has the right of abode in Hong Kong, and applied in 2010 to the Commissioner for the issue of a new Hong Kong permanent identity card. This was however refused by the Commissioner.  The Commissioner decided that he did not have the right of abode in Hong Kong after July 1997.  The Commissioner also declared invalid a permanent identity card which was issued to Mr Man in 1995.

3. Mr Man appealed the Commissioner’s decision to the Tribunal.

4. By way of the Decision, the Tribunal allowed the appeal and reversed the Commissioner’s decision.  It determined that Mr Man has the right of abode in Hong Kong.

5. Since then, Mr Man has on the records left Hong Kong and has not returned to Hong Kong.  He has also not contacted the Immigration Department to follow up the matter.

B.  BACKGROUND

6. The background of the matter and the appeal is not in dispute and can be briefly summarised as follows:

(1) Mr Man’s parents were permanent residents of Hong Kong.

(2) In November 1968 and then August 1969, Mr Man’s father arrived in the UK in his capacity as a British subject: citizen of the United Kingdom and Colonies (“BSCUKC”).  The respective UK landing stamps bore no condition or limit of stay.

(3) In June 1971, Mr Man’s mother was issued with a UK Entry Certificate to join her husband.  In July 1971, she arrived in the UK as a BSCUKC and the landing stamp also bore no condition or limit of stay.

(4) In April 1972, Mr Man’s parents gave birth to his elder brother in the UK.

(5) On 30 May 1974, Mr Man was born in the UK.

(6) By birth thus, Mr Man obtained the status of BSCUKC.  He is thus a “British subject” and also has the right of abode in the UK under the UK relevant Acts.

(7) On 3 April 1995, Mr Man arrived in Hong Kong on the strength of his British citizen passport.  Later, he submitted an application to claim the right of abode in Hong Kong.  The application was allowed based on the applicable relevant law at that time.  He was thus registered for and issued with a Hong Kong permanent identity card (“the Old HKPIC”).  He then returned to the UK.

(8) In October 2010, Mr Man arrived in Hong Kong on the strength of his British citizen passport.  He applied for a new smart Hong Kong permanent identity card.

(9) The Commissioner assessed Mr Man’s application with reference to the eligibility criteria set out under the new paragraph 2 of Schedule 1 (“Schedule 1”) to the Immigration Ordinance (Cap 115) (“the IO”) and the transitional arrangement under paragraph 6 of Schedule 1.  The new paragraph 2 and paragraph 6 were enacted after 1 July 1997 after the establishment of the Hong Kong Special Administrative Region.

(10) Under the new statutory criteria, one of the relevant factors that Mr Man would have to satisfy is that he is of Chinese Nationality.  The Commissioner considered that Mr Man was not of Chinese nationality under Art 5 of the Chinese Nationality Law (“CNL”) for the following reasons:

(a) He was born in the UK which is not within the Chinese territories (including Hong Kong);

(b) He acquired foreign nationality (ie, British citizenship) by virtue of his birth in the UK; and

(c) The parents were considered to have settled in the UK at the time of his birth on 30 May 1974.

(11) The Commissioner therefore considered Mr Man no longer a Hong Kong permanent resident as he did not come within any category of permanent resident under paragraph 2 of Schedule 1.

(12) The Commissioner therefore refused Mr Man’s application for the new smart permanent identity card.  She also informed Mr Man at the same time that the Old HKPIC was declared invalid.

7. The principal question raised in Mr Man’s application for a new smart permanent identity card and in the appeal is whether he could be properly regarded as a permanent resident of Hong Kong after 1 July 1997 by reference to paragraph 2 of Schedule 1.

8. As mentioned above, by way of the Decision, the Tribunal decided in favour of Mr Man.

C.  THE DECISION

9. At the hearing of the appeal, Mr Man did not appear either by himself or through his father as initially intended.  As there was no application by Mr Man to adjourn the hearing, the Tribunal proceeded to hear the appeal[1]. The Commissioner made representations through a senior immigration officer.

10. At the hearing, the Tribunal raised a number of questions with the Commissioner.  At the request of the Commissioner, the Tribunal granted time to the Commissioner and Mr Man to make further written submissions in response to those questions.  The Commissioner subsequently submitted her written submissions (made by Government counsel), while Mr Man did not make any responses.  The parties had also not asked for a further hearing in relation to those submissions.

11. By way of the Decision, the Tribunal allowed the appeal.  The reasons for allowing the appeal can be summarised as follows:

(1) The question for determination in the appeal was whether Mr Man had established to the Tribunal’s satisfaction that “on the fact of his case, he enjoys the right of abode in Hong Kong”.  The burden was on Mr Man to satisfy the Tribunal (see paragraphs 6 and 7 of the Decision).

(2) Mr Man’s Old HKPIC however could be regarded as prima facie evidence of his right of abode in Hong Kong.  As such, it was the Commissioner who sought to upset Mr Man’s status quo ante of the right of abode, and thus be required to substantiate the basis of her action (see paragraph 13 of the Decision).

(3) The Tribunal rejected the Commissioner’s reliance on Art 5 of the CNL to determine that Mr Man was not a Chinese national.  This was so as Art 17 of the CNL provided that “The nationality status of persons who have acquired or lost Chinese nationality before the promulgation of this Law shall remain valid”.  Since the CNL was promulgated in 1980, while Mr Man was born in 1974, Art 5 was not applicable.  Applying the general presumption that legislative acts were not intended to take away vested rights, the Tribunal refused to read down Art 17 to apply to cases where only the prior nationality of a particular person had been resolved or determined as submitted by the Commissioner.  Given Art 5 was not applicable, and Mr Man had shown prima facie right of abode by reason of the Old HKPIC, the Tribunal found on the facts he had the right of abode in Hong Kong, and thus the Commissioner was wrong to have refused Mr Man’s application (see paragraphs 15-19 of the Decision).

(4) However, even if the Tribunal were to apply Art 5 of the CNL, it would have found on the evidence that Mr Man was a Chinese national.  This was so as the Commissioner (who the Tribunal said carried the burden to rely on the proviso under Art 5) had failed to show that Mr Man’s parents had already “settled” in the UK at the time when he was born, and thus the proviso under Art 5 did not apply (see paragraphs 20‑24 of the Decision).

D.  THIS JUDICIAL REVIEW

12. On 15 January 2013, the Commissioner applied for leave to apply for judicial review against the Decision.

13. Leave was granted by Lam J (as he then was) on papers.

14. Since then, Mr Man (as the 2^nd respondent) has not participated in the application notwithstanding being served with the relevant documents in the UK pursuant to the court’s directions.  The Tribunal (as the 1^st respondent) has taken (as usual) a neutral stance and has not taken part in the application as well.

D1.  Grounds of judicial review

15. The grounds raised by the Commissioner in the judicial review against the Decision are in gist that:

(1) Given the very different relevant applicable statutory provisions governing who has the right of abode in Hong Kong before and after 1 July 1997, the Tribunal has erred in law by taking into account the Old HKPIC issued to Mr Man in 1995 as prima facie evidence that he is entitled to the right of abode in Hong Kong after 1 July 1997, (see paragraphs 35‑35 of Form 86) (“Ground 1”).

(2) The Tribunal has erred in law by finding that Art 5 of CNL has no retrospective effect and hence not applicable to the determination of Mr Man’s claim of right of abode in Hong Kong (see paragraph 36 of Form 86) (“Ground 2”).

(3) The Tribunal has made an error of law in its finding that the burden is on the Commissioner to prove that Mr Man’s parents were settled in the UK at the time of his birth (see paragraphs 37-40 of Form 86) (“Ground 3”).

(4) The Tribunal has made an error of fact in finding that Mr Man’s parents had been travelling between Hong Kong and the UK at the time of Mr Man’s birth, and thus had not settled in the UK, as there was no evidence in support of that finding (see paragraphs 41-44 of Form 86) (“Ground 4”).

16. As said above, Mr Man has not participated in this application while the Tribunal remains neutral.  The court has therefore invited the assistance of Ms Grace Chow as amicus curiae.

17. In substance, Ms Chow’s submissions are that the Commissioner has not made out the above grounds in support of the judicial review.  Further, and in particular, it is Ms Chow’s fall back submissions that, even if (which she says not) the Commissioner could establish the first to third grounds, the court should still refuse to exercise its discretion to grant any remedy as the Tribunal was clearly entitled on the evidence to find that Mr Man’s parents had not “settled” in the UK when Mr Man was born, and thus Mr Man was a Chinese national under Art 5 of the CNL (even if applicable).  As such, Mr Man has established that he enjoys the right of abode under paragraph 2(c) of Schedule 1.

D2.  The statutory criteria for determining the right of abode

18. The central issue determined by the Tribunal was that Mr Man has established his right of abode in Hong Kong after July 1997.  The grounds of judicial review attack the Tribunal’s said determination on the various bases of errors of law as set out above.

19. In order to properly understand the submissions raised under these grounds and by Ms Chow, it would be pertinent to first look at the statutory regime under which a person would be regarded as a permanent resident of Hong Kong (who then enjoys the right of abode in Hong Kong) after 1 July 1997.

20. There is no dispute that the statutory criteria governing whether a person is a permanent resident of Hong Kong are different before and after July 1997 upon the establishment of the Hong Kong Special Administrative Region.  Thus, someone who was a permanent resident of Hong Kong before July 1997 would only also be regarded as a permanent resident after July 1997 if he also meets the post-July 1997 statutory criteria.

21. After 1 July 1997, such criteria are comprehensively set out in Art 24 of the Basic Law, which are reproduced at paragraph 2 of Schedule 1.

22. Art 24 provides as follows:

“Article 24

Residents of the Hong Kong Special Administrative Region (‘Hong Kong residents’) shall include permanent residents and non-permanent residents.

The permanent residents of the Hong Kong Special Administrative Region shall be:

(1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);

(4) Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;

(5) Persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the Hong Kong Special Administrative Region; and

(6) Persons other than those residents listed in categories (1) to (5), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only.

The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.

   The non-permanent residents of the Hong Kong Special Administrative Region shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode.”

23. These are effectively reproduced at paragraph 2 of Schedule 1 as follows:

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

(a) A Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region.

(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.

(c) A person of Chinese nationality born outside Hong Kong before or after the establishment of the Hong Kong Special Administrative Region to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b).

(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.

(e) A person under 21 years of age born in Hong Kong to a parent who is a permanent resident of the Hong Kong Special Administrative Region in category (d) before or after the establishment of the Hong Kong Special Administrative Region if at the time of his birth or at any later time before he attains 21 years of age, one of his parents has the right of abode in Hong Kong.

(f) A person other than those residents listed in categories (a) to (e), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only.”

24. Paragraph 6 of Schedule 1 further relevantly provides as follows:

“6. Transitional

(1) A person who is not of Chinese nationality and who was a permanent resident of Hong Kong before 1 July 1997 is taken to be a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) and exempt from the requirements under paragraph 3 if-

(a) he was settled in Hong Kong immediately before 1 July 1997;

(b) after he ceased to be settled in Hong Kong immediately before 1 July 1997 he returns to settle in Hong Kong within the period of 18 months commencing on 1 July 1997; or

(c) after he ceased to be settled in Hong Kong immediately before 1 July 1997 he returns to settle in Hong Kong after the period of 18 months commencing on 1 July 1997 but only if he has not been absent from Hong Kong for a continuous period of not less than 36 months.

(2) A person who is a Chinese citizen and was a Hong Kong permanent resident immediately before 1 July 1997 under this Ordinance as then in force shall, as from 1 July 1997, be a permanent resident of the Hong Kong Special Administrative Region as long as he remains a Chinese citizen.”

25. Thus, in order to succeed in the appeal, Mr Man has to show that he meets any of the criteria provided under paragraph 2 of Schedule 1 or paragraph 6.  It is clear that he does not meet paragraphs 2(a), (b), (d) or (e).  He also cannot meet paragraph 2(f) as he did not only have the right of abode in Hong Kong before July 1997, as he had the right of abode in the UK as well.

26. Similarly, the transitional provision under paragraph 6(1) also does not apply to him (if he does not assert himself to be of Chinese nationality) as he is not saying that he satisfies any of the conditions under subparagraphs (a) to (c).

27. The issue in the appeal is thus whether he could show that he falls within paragraph 2(c) of Schedule 1, that is, he is a Chinese national born outside Hong Kong to parents who fall within either paragraph 2(a) or (b).

28. With this proper context, I would now turn to look at the grounds of judicial review and deal with the relevant submissions as necessary.

D3.  Ground 1 - The Tribunal has erred in law by taking into account the Old HKPIC issued to Mr Man in 1995 as prima facie evidence that he is entitled to the right of abode in Hong Kong after 1 July 1997

29. As mentioned above, the only basis upon which Mr Man could show that he enjoys the right of abode in Hong Kong after 1 July 1997 is that he satisfies the criteria under paragraph 2(c) of Schedule 1.  This is recognised by the Tribunal at paragraph 14 of the Decision, where it is stated as follows:

“14. It was common ground that the only basis on which [Mr Man] can qualify for the right of abode is that he is a person of Chinese nationality born outside Hong Kong of parents who were born in Hong Kong, and who were Chinese nationals at the date of [Mr Man’s] birth [ie, satisfying paragraph 2(c) of Schedule 1]. The only ground upon which [Mr Man]’s clam was rejected by [the Commissioner] was that [Mr Man] himself is ‘considered not of Chinese nationality’.” (emphasis added)

30. Further, it is again recognised by the Tribunal at paragraph 13 of the Decision that, under Regulation 21(2) of the Registration of Persons Regulations (Cap 177A)^[2], Mr Man carries the onus of proof to show that he enjoys the right of abode.  In other words, Mr Man carries the onus to prove that he satisfies each and every criteria set out under paragraph 2(c) of Schedule 1.

31. Notwithstanding these, the Tribunal goes on to say at paragraph 13 of the Decision that, for the purpose of the appeal, (a) it could take Mr Man’s Old HKPIC as prima facie evidence of his right of abode in Hong Kong, and (b) it is for the Commissioner to displace or upset that status quo ante (ie, Mr Man’s prima facie entitlement to right of abode in Hong Kong).

32. With the greatest respect, in my view, the Tribunal has erred in law in that part of Decision.  My reasons are as follows.

33. As mentioned above, the only issue in the appeal is whether Mr Man can show that he enjoys the right of abode in Hong Kong after 1 July 1997 under paragraph 2(c) of Schedule 1.  In that, he needs to show (and the onus is on him) that:

(1) He is of Chinese nationality; and

(2) He was born outside Hong Kong before 1 July 1997 to a parent who, at the time of Mr Man’s birth, was a Chinese citizen falling within paragraph 2(a) or (b).

34. There is no dispute that, at the time of Mr Man’s birth, his parents fell within paragraph 2(a) or (b).

35. In the premises, the only question is whether Mr Man could show that he was of Chinese nationality when he was born.  It is only if he could show that then he would satisfy paragraph 2(c) and be regarded as a permanent resident of Hong Kong after 1 July 1997.

36. Insofar as that question is concerned, the Old HKPIC is not evidence, prima facie or otherwise, as to whether Mr Man is of Chinese nationality.  This is particularly so when it is not challenged that the Old HKPIC was issued to Mr Man for his right of abode entitlement before July 1997 under paragraph 2(a) of the old Schedule 1 (repealed after July 1997) on the basis that he was a British Dependent Territories Citizen (under s 23(1)(b) of the British Nationality Act 1981) with a connection with Hong Kong (under Article 2(1)(a) of the Hong Kong (British Nationality) Order 1986), and hence eligible for Hong Kong permanent resident status before 1 July 1997.

37. In the premises, the Old HKPIC is irrelevant as a matter of evidence as to the real issue before the Tribunal, that is whether he can show that he was of Chinese nationality when he was born and thus falling within paragraph 2(c) of Schedule 1 to prove that he is a permanent resident of Hong Kong (and thus enjoying the right of abode) after 1 July 1997.

38. The Tribunal therefore has erred in law in treating and taking into account the Old HKPIC as prima facie evidence of Mr Man’s right of abode when the relevant issue is and should only be whether Mr Man enjoys the right of abode after 1 July 1997 under an entirely new statutory regime (as the Tribunal has accepted at paragraph 13 of the Decision).

39. Given that the Tribunal has erred in law in this respect, I agree with Mr Suen (for the Commissioner) that it has also further erred in saying that the burden then rests on the Commissioner to “upset the status quo ante”.  Mr Man carries the statutory onus to prove that he enjoys the right of abode after 1 July 1997 by showing that he comes under paragraph 2(c).  The said “status quo ante” has nothing to do with paragraph 2(c), and thus is irrelevant to the issue. That cannot therefore reverse the onus to the Commissioner to “upset” that irrelevant “status”[3].

40. For these reasons, the applicant succeeds in the 1^st ground.  However, given Ms Chow’s fall back submissions that the court should not quash the Decision as the Tribunal has eventually determined the question properly as a matter of evidence, I would only deal with the relief at the end of this judgment after I have looked at all the grounds of challenge.

D4.  Ground 2 - The Tribunal has erred in law by finding that Art 5 of CNL has no retrospective effect and hence not applicable to the determination of Mr Man’s claim of right of abode in Hong Kong

41. At the appeal, a question turns on whether Art 5 of the CNL is applicable to determine whether Mr Man was a Chinese national at the time of his birth in 1974.  Art 5 provides as follows:

“Any persons born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality.”

42. It is common ground that the CNL was promulgated and came into effect in 1980.

43. In this respect, Art 17 of CNL further provides as follows:

“The nationality status of a person who have acquired or lost Chinese nationality before the promulgation of this Law shall remain valid”

44. The Commissioner in her supplemental written submissions relies on various writings and texts by Mainland legal academics to support the construction that Art 17 only applies to those nationality status that had already been “resolved” prior the promulgation of the CNL in 1980.  In other words, the Commissioner submits that Art 5 of the CNL can and should be applied to determine whether someone born before 1980 is of Chinese nationality so long as that person’s Chinese nationality has not been “resolved” before 1980.  The Commissioner therefore contends that Art 5 should be applied to determine whether Mr Man was born as a Chinese national as his said status had not been “resolved” previously.

45. The Tribunal rejects the arguments and refuses to “read down” the effect of Art 17 as contended by the Commissioner.  It therefore decides that Art 5 is not applicable.  However, the Tribunal, without then making any determination as to whether Mr Man is a Chinese national, goes on to conclude that Mr Man has established on the facts that he enjoys the right of abode in Hong Kong.  The Tribunal explains the conclusion at paragraphs 18 and 19 of the Decision as follows:

“18. We thank those representing the Respondent for their submissions, but we are far from persuaded that Article 5 should operate retrospectively in the manner advocated by him. Having regard to the wording of Article 17, we do not see any room for reading down that provision and confine its application to those cases where a person has made a claim for Chinese nationality and his claim has already been adjudicated upon. Article 17 clearly refers to the acquisition and loss of Chinese nationality, which are objective facts not dependent on whether or not a claim to Chinese nationality has been made and adjudicated upon. In arriving at the above conclusion, we have also reminded ourselves that it is a general presumption of law that legislative acts are not intended to take away vested rights. Fundamental rights once acquired cannot be abrogated except by the clearest language. Even though we are here dealing with an enactment by the National People’s Congress, we have no reason to doubt that this presumption against retrospective effect is applicable.

19. It follows that we do not accept that Article 5 of the CNL can be invoked to determine that the Appellant does not possess Chinese nationality. And given that the Respondent’s case before us is dependent on the applicability of Article 5 and he has not put forward any alternative argument in support of the conclusion that the Appellant does not possess Chinese nationality according to the law in force prior to 1980, we are entitled to fall back on the Appellant’s possession of the Old Style Permanent ID Card as prima facie evidence of his entitlement to the right of abode without investigating into the underlying basis for his entitlement and we find that the Appellant has established to our satisfaction that on the facts of his case he enjoys the right of abode in Hong Kong” (emphasis added)

46. I agree that the Tribunal has erred as a matter of law in this part of the Decision.  I will explain why.

47. The CNL should be interpreted and construed in accordance with PRC law.  The Tribunal is of course entitled not to accept the evidence on PRC law (ie, the academic writings relied on by the Commissioner) with reasons.  However, after disapplying Art 5 of the CNL, the Tribunal has not made any determination that Mr Man was born with Chinese nationality in 1974 given that there is nothing before the Tribunal to show that, as a matter of any relevant PRC law existed before 1980, Mr Man had already acquired Chinese nationality[4]. The failure to make such a determination or finding has two consequences:

(1) First, it has rendered the Tribunal’s reasons for disapplying Art 5 unsound.  The Tribunal disapplies Art 5 as it says Art 5 could not be applied retrospectively to cases where, as a matter of objective fact, the subject person had already acquired or not Chinese nationality before 1980.  This is the basis why it rejects the evidence on the PRC law that Art 17 only applies to cases where the nationality had already been “resolved” before 1980,  However, given that there is nothing (as a matter of evidence of PRC law existed before 1980 and relevant to the determination of Mr Man’s Chinese nationality in 1974) before the Tribunal to show that Mr Man had already or not acquired Chinese nationality, there is in my view no sound basis yet for the Tribunal to disapply Art 5 by refusing to (in the Tribunal’s own words) read down Art 17 as submitted by the Commissioner.

(2) Second, and in any event, without this finding, which is the only issue pertinent to the question of whether Mr Man has satisfied the criteria under paragraph 2(c) of Schedule 1, the Tribunal has also erred in law in concluding that Mr Man has proved his right of abode by relying on the Old HKPIC as prima facie evidence of right of abode without investigating the underlying basis for Mr Man’s said entitlement.  As I have emphasised above, the Old HKPIC is not a proof (prima facie or otherwise) of Mr Man’s Chinese nationality.

48. In the premises, the Tribunal has erred in law in (a) its conclusion in disapplying Art 5 of the CNL, and (b) concluding that Mr Man has established his right of abode after July 1997 as there is no legal or evidential basis to justify that.

49. In this respect, Ms Chow further draws the court’s attention to s 2AA of the IO which provides as follows:

“2AA. Establishing status of permanent resident under paragraph 2(c) of Schedule 1

  (1) A person’s status as a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be established by his holding of-

(a) a valid travel document issued to him and of a valid certificate of entitlement also issued to him and affixed to such travel document;

(b)a valid HKSAR passport issued to him; or

(c) a valid permanent identity card issued to him.

 (2) A person’s right of abode in Hong Kong by virtue of his being a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be exercised upon the establishment of his status as such a permanent resident in accordance with subsection (1) and, accordingly, where his status as such a permanent resident is not so established, he shall, for the purposes of this Ordinance, be regarded as not enjoying the right of abode in Hong Kong.”

50. Ms Chow therefore submits that the Tribunal is entitled to rely on the Old HKPIC as a “a valid permanent identity card” as proof of Mr Man’s status as a permanent resident under paragraph 2(c) of Schedule 1.  In support, Ms Chow also relies on Director of Immigration v Lau Fong (2004) 7 HKCFAR 56 at paragraph 38, whereby it was observed by Sir Anthony Mason NPJ that:

“…an identity card is valid until declared invalid and that it is an official document which…recognises and confirms that the holder is a resident of Hong Kong, thereby indicating that he has satisfied the qualifications for registration and, in the case of a non-permanent resident, that he has the status of a non‑permanent resident of Hong Kong…” (emphasis added)

51. Ms Chow then further says as the Commissioner only informed Mr Man in her decision in 2010 in rejecting his application for a new smart permanent identity card that the Old HKPIC was declared invalid, Mr Man is entitled to rely on the Old HKPIC (which was according to Lau Fong still regarded as valid before then) in support of his application.  Similarly, the Tribunal is entitled to do so as well.

52. With respect to Ms Chow, I have reservations of these submissions:

(1) As I think correctly submitted by Mr Suen, Lau Fong deals with a different context, where the issue concerns the freedom of movement of a non-permanent resident. It is in that context (which has nothing to do with s 2AA of the IO) that it is observed that a Hong Kong identify card (not a Hong Kong permanent identity card) which has not been declared invalid remains valid and is thus evidence of one’s non-permanent residency (but not permanent residency) status.

(2) One therefore cannot simply take the observation by Sir Anthony Mason NPJ (as quoted above) to be equally applicable to the context of s 2AA to say that even a Hong Kong permanent identity card issued before the new paragraph 2(c) of Schedule 1 was enacted, which has not been declared invalid, to be amounting to a “valid permanent identity card” intended under s 2AA(1)(c) as proof of permanent residency status under the new paragraph 2(c).  Further, I think there is force and merit in the arguments that, on a purposive interpretation, the “valid permanent identity card” referred to under s 2AA(1)(c) is intended to mean a valid permanent identity card issued to the person by the Commissioner after he has satisfied the Commissioner that he meets the criteria under the new paragraph 2(c) of Schedule 1.  This is particularly so given that (a) s 2AA apparently deals with what kind of documentary proof a person can rely on to show for immigration purposes that he enjoys the status of permanent residency of the Hong Kong Special Administrative Region (which was established on 1 July 1997) under the new paragraph 2(c), and (b) a permanent identity card issued before 1 July 1997 under the old statutory permanent residency regime has nothing to do with whether all the criteria of the new paragraph 2(c) have been met[5].

(3) Moreover and in any event, in response to Ms Chow’s submissions, Mr Suen also draws the court’s attention to an Order (“the 2007 Order”) issued by the Secretary for Security under s 7C of the Registration of Persons Ordinance (Cap 177) on 14 May 2007, which was gazetted on 12 July 2007.  The 2007 Order invalidated all identity cards issued, among others, before 23 June 2003 with effect on 17 September 2007.  Mr Suen thus submits that, even if (which he disagrees) Ms Chow’s submissions on the effect of Lau Fong were correct, the Old HKPIC had in fact been declared invalid by 17 September 2007 by reason of the 2007 Order and thus Mr Man could not rely on it.

(4) Ms Chow however says the Commissioner is not entitled to refer to and rely on the 2007 Order at this judicial review since that was not before the Tribunal.

(5) Again with respect to Ms Chow, neither Mr Man nor the Tribunal refers to and relies on s 2AA and Lau Fong when the Tribunal says Mr Man could rely on the Old HKPIC as prima facie evidence of his status of permanent residency.  The question of whether the Old HKPIC can be regarded as a “valid permanent identity card” issued to Mr Man for the purpose of s 2AA(1)(a) is therefore never an issue in the appeal.  As such, the Commissioner could not have been blamed for not raising in the appeal the purported fact that the Old HKPIC had been already declared invalid by the 2007 Order.

(6) In the premises and circumstances, the Tribunal has never considered the questions of (a) the proper construction of s 2AA and the applicability of Lau Fong, and (b) whether (even if Ms Chow’s above contentions on the effect of s 2AA and Lau Fong are correct) factually the Old HKPIC had already been declared invalid for the purpose of s 2AA and thus Mr Man is not entitled to rely on it.  As a result, in my view, these questions should be considered by the Tribunal afresh if the appeal is remitted back to it, and if the Tribunal or any party wishes to raise them then.  This is particularly so since the question of interpretation would in my view require fuller submissions (and if necessary references to evidence of relevant legislative materials, if any) to be made by the parties, while the question relating to the effect of the 2007 Order is likely to be fact sensitive.

53. For all the above reasons, I am therefore not convinced that the Tribunal is correct as a matter of law in the Decision to conclude that Mr Man has established his right of abode after July 1997 by his reliance on the Old HKPIC.

54. The Commissioner therefore also succeeds under this ground.

D5.  Ground 3 - Whether the Tribunal has erred in law in holding that the burden is on the Commissioner to show that Mr Man’s parents had settled in UK when Mr Man was born as required Art 5 of CNL

55. Whether Mr Man is a permanent resident under paragraph 2(c) of Schedule 1 depends on whether he can show that he was of Chinese nationality when born in UK.

56. As mentioned above, although the Tribunal has rejected the application of Art 5 of the CNL to determine whether Mr Man was a Chinese national at the time of birth in 1974, it goes on to say that even if Art 5 did apply, then the burden rests on the Commissioner to show that the “proviso” in it applies.  In other words, it is for the Commissioner to prove that Mr Man’s parents had “settled” in the UK when Mr Man was born, so as to make Mr Man not a Chinese national.  The Tribunal explains this at paragraph 21 of the Decision as follows:

“21. We do not accept the Respondent’s submission that the burden is on the Appellant to show that his parents were ‘not settled’ at the time of his birth. It is clear that the first sentence in Article 5 laid down as a general rule that all those born abroad of parents who are Chinese nationals would acquire Chinese nationality at birth and that the words in the second sentence operate by way of a proviso or exception to qualify or narrow down that which precedes it. The burden is on the party seeking to invoke a proviso or exception to show that the case under consideration falls within it – in other word, the burden is on the Respondent to show that the Appellant’s parents were ‘settled’ in the UK at the date of his birth if he wishes to contend that the Appellant is not a Chinese national despite the fact that he was born to parents who were themselves Chinese nationals at the time of his birth. Hence, notwithstanding that Regulation 21(2) places the onus of proving that he enjoys the right of abode on the Appellant, if Article 5 had been application in determining the Appellant’s nationality, all that he needs to do is to show that his parents were Chinese nationals at the date of his birth, which is not an issue in the present case. There is no additional obligation on the part of the Appellant to show that he falls outside the proviso or exception.”

57. I think the Tribunal also commits an error of law in this analysis.

58. It has been rightly accepted by the Tribunal that in the appeal, under Regulation 21(2), it is Mr Man who carries the onus of showing that he enjoys the right of abode in Hong Kong.  Thus, the burden is on Mr Man to show that he has met all the criteria set out in paragraph 2(c) of Schedule 1, including the fact that he was of Chinese nationality at the time of his birth.

59. If Art 5 of CNL applies in determining whether he was of Chinese nationality at the relevant time, it must be for him to show that he has met all the requirements set out in Art 5.  Art 5 properly read provides a complete code for when a person born abroad to Chinese national parents shall or shall not be regarded as a Chinese national.  In other words, Art 5 provides that a person is of Chinese nationality if he is (a) and not (b).  It is thus for Mr Man to show that he falls squarely within Art 5 to make him a Chinese national, which should include showing that he does not fall within the exclusionary part of the provision.  The Tribunal analysis in “splitting” a “general rule” first in Art 5 from what it describes as a “proviso” or “exception” is in my view not justified in a proper reading of Art 5 as well as in light of the overall burden put on Mr Man by Regulation 21(2) to show that he enjoys the right of abode in Hong Kong.

60. As such, on a proper analysis, in order to show that he was a Chinese national at the time of birth under Art 5 of CNL, the burden is on Mr Man to show that he was born in the UK to Chinese parents who at that time had not settled in the UK.

61. The Tribunal is therefore wrong in law to say that it is for the Commissioner to show that Mr Man’s parents had settled in the UK at that relevant time.

62. Ms Chow however says that, even if the Tribunal has committed such an error, the court should not quash the Decision since the error was in substance not a material one, as the Tribunal is in any event entitled to conclude on the evidence that the parents had not so settled in UK.

63. The Tribunal explains this conclusion on non-settlement at paragraphs 22 to 24 of the Decision as follows:

“22. The Respondent rightly did not contend that for the purposes of Article 5 of the CNL, the parents are to be treated as having ‘settled’ in the UK at the material time by virtue of the fact that they had indefinite leave to remain in the UK. Whether the parents were ‘settled’ in the UK can only be decided by looking at the way they ordered their lives to see the extent to which they had established themselves in the UK with a view to taking the UK as their home indefinitely.

23. The evidence is scanty. We have no information on whether at the material time the Appellant’s parents had set up their permanent home in the UK or their presence in the UK (albeit of prolonged periods) remained of a transient character. The only information we have is the undisputed facts that: (1) at the time of the Appellant’s birth, his father was working as a cook in the UK; (2) the father had first gone to the UK for work in 1969 and his wife went to the UK to be with him in 1971; and (3) at the time of the Appellant’s birth, both of his parents had indefinite leave to remain in the UK, but they did not acquire the right of abode in the UK until 1976. In addition, we have the evidence of the Appellant (which is not accepted by the Respondent) that at that time of his birth the parents were travelling between Hong Kong and the UK on a regular basis.

24. If we were called upon to decide whether the Appellant’s parents were ‘settled’ in the UK at the date of the Appellant’s birth for the purposes of applying Article 5, we would have found the undisputed facts recited above at best equivocal.  Against that, there is the evidence of the Appellant that the parents were making frequent trips between Hong Kong and the UK on a regular basis (which we accept).  The evidence is consistent with their not having established themselves in the UK with a view to taking the UK as their home on an indefinite basis (ie, they were more sojourners residing in the UK to enable the father to take up employment there) at the time of the Appellant’s birth.  Without further evidence, we are not prepared to draw the inferences which are necessary to support a finding that the parents were already ‘settled’ in the UK at the date of the Appellant’s birth.”

64. It can be seen that the Tribunal emphasises in its reasons the scanty and equivocal nature of the evidence on the question settlement.  When this is understood in the context that the Tribunal has posed the burden on the Commissioner to prove that the parents had settled abroad, one can understand why it says it is not satisfied that it was the case. However, I am not so sure whether the same conclusion would be definitely drawn if the Tribunal had properly regarded the burden being on Mr Man to adduce evidence of no settlement.  This is so since it would be for Mr Man to provide sufficient evidence (which is likely be within Mr Man’s power (with the help of the parents) to produce) to show that the parents had not so settled, say by (as mentioned by the Tribunal as an example) showing that the parents had not set up their permanent home in the UK.  It may well be that, the scantier the evidence that Mr Man produces, the less likely it would be for the Tribunal to be satisfied that he has shown that the parents had not so settled in the UK.

65. I therefore do not agree that the Tribunal would have definitely come to the same conclusion on the same quality of the evidence that the parents had not so settled abroad if it had treated the burden being on Mr Man to show that the parents had not done so.

66. I therefore would also accept this ground of challenge.

D6.  Ground 4 - The Tribunal has made an error of fact in finding that Mr Man’s parents had been travelling between Hong Kong and UK at the time of Mr Man’s birth, and thus had not settled in UK, as there was no evidence in support of that finding

67. The Commissioner says under this ground that, there is simply no evidence in support of the Tribunal’s factual finding on “no settlement” by Mr Man’s parents.  This amounts to an error of law.

68. However, given my above conclusion under Grounds 1 to 3, in particular in relation to the Tribunal’s errors in treating the Old HKPIC as a relevant piece of evidence showing Mr Man’s right of abode and reversing the evidential burden on the Commissioner, the proper and right course for this court to do is to remit the appeal to a differently constituted Tribunal to reconsider the evidence and make the necessary fact finding.  It is therefore inappropriate for this court to express any view on the state of the evidence at this stage.

69. I therefore would not deal with this ground in this application.

E.  CONCLUSION

70. For the above reasons, I would allow the judicial review on Grounds 1 to 3.  I further order that the Decision be quashed and the appeal be remitted to a differently constituted Tribunal for reconsideration.

71. I further make an order nisi that there be no order as to costs.  The order shall become absolute 14 days from today, unless any of the parties applies to vary it by summons.

72. Lastly, I would like to express my thanks to the amicus for her valuable assistance and helpful submissions.  I also thank Mr Suen for his assistance.

[1] See paragraph 8 of the Decision.

[2] Which provides that “if, in any proceedings with reference to any decision or act done or proposed to be done by a registration officer under any of these regulations, a person claims (a) that he enjoys the right of abode in Hong Kong; or (b) that he is entitled to a permanent identity card, the onus of proving the same shall lie on that person.”

[3] In this respect, it is also pertinent to note that, insofar as the transitional arrangement under paragraph 6(2) of Schedule 1 is concerned, it is still necessary for Mr Man to show that he is and remains to be of Chinese nationality after July 1997 so that his permanent residency status before July 1997 could be continued after then.  Thus, it is the same relevant issue that needs to be determined.

[4] If by way of paragraph 19, the Tribunal had in fact intended to say that Mr Man was of Chinese nationality for the reason that the Commissioner had not advanced any alternative basis other than Art 5 to say why he was not a Chinese national, I am also of the view that the Tribunal has erred on this.  The burden is on Mr Man to prove that, as a matter of law and facts, he acquired Chinese nationality at birth.  He has not adduced any such law.  His contentions before the Commissioner and the Tribunal are principally that he has in fact satisfied Art 5.  There is thus nothing to support the Tribunal’s finding (if that was in fact the Tribunal’s position) that Mr Man was born of Chinese nationality after disapplying Art 5. Further, this finding would also be inconsistent with the Tribunal’s reliance on the Old HKPIC to conclude that Mr Man has established his right of abode after July 1997.

[5] See also the second last paragraph of Art 24 of the Basic Law.