AZIZ AKBAR BUTT v. DIRECTOR OF IMMIGRATION

HCAL 32/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 32 OF 2007

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

1. The applicant is a permanent resident of Hong Kong and a naturalised Chinese citizen.  As such, pursuant to the Hong Kong Special Administrative Region Passports Ordinance, Cap 539, he is entitled to apply for and be issued an HKSAR passport.

2. Although the applicant is a long-term resident of Hong Kong, and although Hong Kong is his home and is the base for his business activities, he was born in Pakistan; more specifically, in the city of Karachi, which I am told is in the Sind Province.

3. In early 2007, the applicant made an application to the Director of Immigration for the issue to him of an HKSAR passport, specifically a passport capable of being read by computer.  The applicant, however, did not wish to have his country of birth stated in his details of identity in his new passport.  He therefore applied to have only his city of birth, that is, Karachi, and/or his province of birth, that is, the Sind Province, inserted into the passport details.

4. The applicant believed he had good reason for making his application.  The applicant informed the Director in writing that, from both personal experience and the experience of other people known to him, he was aware of the fact that the insertion of his place of birth as ‘Pakistan’ may – indeed, in all probability, would – hinder his freedom to travel to many other countries.

5. It is not disputed that at this time in history Pakistan is, especially along its northern borders with Afghanistan, home to certain fundamentalist sects, among them loosely associated groups known internationally as The Taliban, who seek to advance their cause both domestically and internationally by the use of violence.

6. For that reason, so the applicant asserted, the insertion of the country Pakistan in his passport would act as a ‘red warning light’ for immigration officers and may subject him to unnecessary questioning, and even, from time to time, refusal to allow him admittance to a country.

7. The applicant asserted that the insertion of his city of birth or his province of birth, while still accurately stating his place of birth, would be less likely to incite such an immediate defensive response from immigration authorities.

8. In support of his application, the applicant informed the Director that many jurisdictions did not insist, in the passports issued by them, that the country of birth must be given but were content for the place of birth to be described either by a city or a province.

9. The Director refused the application.  The stated basis for the refusal was the same in the three letters which were sent to the applicant.

10. The first letter was dated 3 February 2007.  In that letter, the following was said on behalf of the Director :

“Please note that, to facilitate the travel convenience of the holders, the format of the HKSAR e-passport would conform with the international standards (i.e. the specifications of the International Civil Aviation Organisation) which require, inter alia, that when a passport is issued to a person whose place of birth was outside the state issuing the document, the country of birth should be shown.  It is therefore necessary for the applicant to state his country of birth on the application form and the passport.  Under such circumstances, I regret that your request to insert the name of a Pakistan city instead of the country “Pakistan” under the place of birth column in your HKSAR e-passport cannot be acceded to.”

11. In a second letter, dated 7 March 2007, the same again was said :

“On the other hand, we wish to stress that the format of the HKSAR e-passport has to conform with the international standards (i.e., the specifications of the International Civil Aviation Organisation) which require, inter alia, that when a passport is issued to a person whose place of birth was outside the state issuing the document, the country of birth should be shown.  It is therefore necessary for the applicant to state his country of birth on the passport.  Please note that the aforesaid organisation is an international organisation....”

12. In the last of the three letters dated 16 March 2007, the following was said :

“As mentioned previously in our letter of 7 March 2007, the format of the HKSAR e-passport has to conform with the international standards, hence, only the country of birth will be shown on the passport.  Accordingly the country of birth, that is, Pakistan, will be inserted in the place of birth column in your HKSAR e-passport.”

13. It is in respect of these decisions that the applicant has sought judicial review.  The relief he has sought is mandatory in nature; namely, an order directing the Director of Immigration to issue a new passport to him, containing in that document, as the place of birth, the applicant’s city of birth, instead of his country of birth.

14. Having heard submissions this morning immediately before adjourning for lunch, I gave judgment.  I allowed the application for a judicial review, quashing the refusals of the Director and directing that the applicant’s application be considered afresh in accordance with law.  I also made an order nisi for costs in favour of the applicant.  I said that I would give my reasons for judgment this afternoon.  I now do so.

15. First, and fundamentally, it is necessary to understand the nature of the document which is the subject of this judgment, namely, a passport.  The term ‘passport’ has been in use for centuries.  But it is only since the First World War that the passport system in its modern sense has been introduced into almost all countries.  It is a system in terms of which aliens who wish to enter a foreign territory are required to produce a document issued by the country of their nationality which identifies the individual and which seeks permission for that individual to be able to travel in that country without let or hindrance.

16. In the absence of international treaty law, it is accepted that the conditions governing the documentary nature of a passport is a matter not for international law, customary or treaty law, but a matter for municipal law, that is, for the local law of each and every country.

17. The nature of a passport today is fairly well accepted.  It is a document which is internationally recognised as proof of the holder’s identity, but it is also a document which serves as a basis for a number of important decisions affecting the holder.  As I have said earlier, most passports in one way or another, based on the comity of nations, seek permission for the holder of the passport to travel freely.  In addition, although a passport does not of itself confer nationality but creates a presumption only of nationality, it does confer on the holder, according to international usage and without any further examination, a claim to the protection of the diplomatic and consular representatives of his country.

18. Expressed in the simplest of terms, a passport, while it is a document of identity recognised internationally as such, is a document issued in most cases by the holder’s country of nationality which seeks to enable the holder to travel freely, that is, to travel without let or hindrance, and which – on the basis of the document alone – enables the holder to seek help from the diplomatic or consular offices of his country if he comes into difficulties while travelling.

19. Travel may have been a rarity 200 years ago but today, it is an everyday occurrence.  In Hong Kong, the right to freedom of travel is a constitutionally recognised right.  Importantly, art.154 of the Basic Law authorises Hong Kong to issue its own passports.  In this regard, the article reads :

“The Central People’s Government shall authorise the Government of the Hong Kong Special Administrative Region to issue, in accordance with law, passports of the Hong Kong Special Administrative Region of the People’s Republic of China to all Chinese citizens who hold permanent identity cards of the region....”

20. The article goes on to say that these passports and other travel documents “shall be valid for all states and regions and shall record the holder’s right to return to the region.”

21. The issue of passports in Hong Kong must therefore be in accordance with law.  With the assistance of counsel, I have been referred only to one ordinance, that is, the Hong Kong Special Administrative Region Passports Ordinance.  A study of that Ordinance reveals that the legislature has not seen fit, within the body of the statute itself, to direct what exact details must be contained in a passport document.  Indeed, a study of the regulations made under that Ordinance reveals that the regulations themselves do not direct what must be contained in a passport.

22. Accordingly, what is to be put into an HKSAR passport is, it seems to me, a matter of policy for the Government of Hong Kong; more specifically, of course, for the Director himself.

23. There is, however, one international instrument which is relevant; that is, the guidelines issued by the International Civil Aviation Organisation in respect of the contents of passports which are capable of being read by computer.  In the schedule to that instrument – headed “Machine Readable Passports, Technical Specifications for Basic Machine Readable Passports” – there is a section which reads :

“12/II Optional element in mandatory zone

Place of birth

Field optionally used for city and State of holder’s birthplace.  A translation of the name into one or more languages, one of which should be English, French or Spanish, should be given when the translated name is more familiar to the international community.  At the discretion of the issuing State, the town or suburb of birth may be used.  When the MRP is issued to a person whose place of birth was outside the State issuing the document and it is desired that the State or territory of birth be shown, the three-letter code appearing in Appendix 7 shall be used.

Variable     ”

24. The 3-letter codes that are referred to in the extract above, identify sovereign countries together with a number of geographical territories.

25. As I have said earlier, when the applicant was refused permission to have his city and/or province of birth inserted in his passport, the reasons for that rejection were given in a series of letters.  In all three letters the reasons were the same.  They were to the effect that the guidelines issued by the International Civil Aviation Organisation required that, when a passport was issued to a person whose place of birth was outside the state issuing the document, the country of birth must be shown.  Accordingly, there was no discretion vested in the Director.

26. I see no other way of reading the three letters from the Director other than as an assertion that the Director has no discretion in the matter, not if he is to act in compliance with the guidelines.  On an ordinary reading, that is the only reason given and is, to that extent, exhaustive.

27. However, it is plain that, on a true construction, the schedule to the guidelines does not direct that the country of birth must be stated when the holder of a passport has been born outside of the state issuing that passport.  Indeed, the field description speaks of it being an optional element.  And indeed the substance of the guidelines makes it clear that it is for the issuing authority to determine whether or not it wishes to contain, in the passport, the country of birth.  The guidelines go on to say only that, if it is decided that the country of birth is to be inserted, then, so that the passport may be read by machine internationally, certain initials for various countries and territories should be used.

28. Counsel for the Director, Mr Jin Pao, has this morning accepted that, to this extent, the letters sent by the Director to the applicant were wrong.  As he has put it : “The Director does not shy away from this.”

29. In my judgment, the letters of refusal are a misinterpretation of the true effect of the guidelines issued by the International Civil Aviation Organisation.  The refusals are therefore based on a mistake of law.

30. As I have said earlier, no other reasons for the refusals are given.  It seems to me, therefore, the reasons for the refusals being wrong in law, the refusals themselves are vitiated.  That, on its own, is reason enough for granting the judicial review, for quashing the decisions and for referring the matter back to the Director for consideration by him in accordance with law.

31. During the course of submissions this morning, applicant’s counsel did not press for the relief originally sought, that is, a mandatory order that the Director must issue an amended passport.  I think he was right not to press the matter.  What is or is not to be contained in a passport in Hong Kong is not a matter of statutory or regulatory obligation.  It is a matter for administrative decision-making, that is, it is a matter of policy.  As such, it is not a matter which rests with this court; it is a matter which rests with the Administration.

32. It was argued before me that, even if the grounds for the refusal were wrong in law, nothing turns on it.  It was argued that the insertion of the country of birth as part of a policy is applied uniformly in respect of all persons born outside of Hong Kong and that, in any event, it is a mere statement of fact and no more, and that, accordingly, while it may from time to time create an inconvenience for travellers, that was not a matter which could be laid at the feet of the Director but was a matter which other countries into which the holders of passports sought admittance had a sovereign right to investigate.

33. I disagree.  If Hong Kong residents have the freedom to travel, and if Hong Kong has sovereign authority to issue its own passports, any policy concerning the issue of those passports must take into account the important issue of how best to ensure the freedom of travel of Hong Kong passport holders, while at the same time, of course, ensuring that Hong Kong passports do not misrepresent the true facts of identity and do not, by that reason, lose their reputation in the international community.

34. The applicant, as I have said earlier, when seeking to have only his city of birth and/or his province of birth given in his passport, made reference to other jurisdictions.  The evidence reveals that passports of the United Kingdom may contain only the city of birth.  Evidence reveals that Canada has the same policy.  Indeed, I was able to render some small assistance by referring to my own Australian passport, which gives my place of birth as a city only and not as a country.

35. I am informed by counsel for the applicant that some countries allow applicants not to put in their place of birth at all, one of those being Korea and another being Canada.  However, as I understand it, in Canada, those few persons who seek not to have their place of birth recorded at all are warned that it may visit upon them unnecessary questioning at border entrances.

36. But the important consequence of reference to these other jurisdictions, I think, is that it undermines the assertion that the giving of the place of birth as always the country of birth is a matter of no consequence.  I find it difficult to believe that jurisdictions such as the United Kingdom, Australia, Canada and Korea would allow a city of birth to be given, or indeed no place of birth at all to be given, unless their passport authorities believed there was reason for it.

37. During the course of the hearing this morning a good number of examples were given to show that many people, for entirely legitimate practical and emotional reasons, may not wish to have the country of their birth recited in their passports.  There is no need to go through a litany of the examples again.  The applicant’s own difficulties provide sufficient example.

38. I mention the fact that people may have good reasons for not wanting their country of birth recorded in their passports to emphasise the point again that the issue raised by the applicant is an important issue.  It is therefore, in the creation of a rational policy, an issue which cannot be ignored.

39. During the course of submissions this morning, it was said that the Director did have an existing policy.  If so, there is no evidence whatsoever that it contains an acknowledgement that the Director has a discretion as to the details that may go into HKSAR passports.

40. It was said this morning that in the Mainland as a matter of practice, country of birth is always given and that, as an integral part of the PRC, Hong Kong must place importance on Mainland practices.  That no doubt is so.  But that alone cannot be determinative, not when Hong Kong has, in terms of our constitution, been given the independent responsibility of issuing passports and the independent responsibility of issuing those passports according to its own internal directions, bearing in mind always that a primary purpose of a passport is to assist its own citizens to travel freely; that is, without let or hindrance.

41. I appreciate fully that a long-term policy has been exercised by the Director; one that he applies uniformly.  But the fact that a policy has been applied on a long-term basis does not, of itself, make it a correct policy.  The fact that the workings of a long-term policy are rendered more convenient by only putting in the place of birth as a country cannot of itself determine the lawfulness of that policy.

42. In all the circumstances, for the reasons given, the application is allowed.  The matter is remitted back to the Director for a fresh consideration of the applicant’s application.

43. As I have said earlier, there will be an order nisi as to costs.  That order will be made final in 14 days.