PREM SINGH v. THE DIRECTOR OF IMMIGRATION

HCAL1379/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1379 OF 2000

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J U D G M E N T

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1. This is an application by the applicant, Mr Prem Singh ("Mr Singh"), for judicial review. The decisions that are being challenged are :

1. The decision of the Director of Immigration made on 4 June 1999 refusing Mr Singh's application for unconditional stay.

2. The decision of the Director of Immigration made on 9 October 1999 upholding his earlier decision of 4 June 1999.

3. The decision of the Director of Immigration made on 14 June 2000 finding that Mr Singh is not a permanent resident of Hong Kong under Article 24(2)(4) of the Basic Law.

The personal background

2. Mr Singh was born in India on 14 August 1964. He is an Indian national and on 2 January 1988 he came to Hong Kong as a visitor. On 11 March 1988, he changed his status to be employed as a cook in a restaurant in Hong Kong. Apart from two short periods which are not relevant for the purpose of this case, he has remained in Hong Kong since 1988. In June 1996, he married a Philippino national and on 30 August 1999, a child was born of this marriage.

The criminal convictions

3. Between 1994 and 1999, Mr Singh was convicted of criminal offences in Hong Kong.

1. On 3 November 1994, he was convicted of common assault, a fine was imposed him.

2. On 7 January 1995, he was convicted of criminal damage and he was bound over.

3. On 23 January 1997, he was convicted of being drunk and disorderly behaviour and a fine was imposed on him.

4. On 3 May 1999, he was convicted of indecent assault and was sentenced to two weeks' imprisonment. He had served the last sentence.

Application for unconditional stay

4. Prior to 1998, Mr Singh had on two occasions applied for unconditional stay in Hong Kong. The first application was made on 13 November 1996, which he did not follow up. The second application was made on 26 November 1997, which was refused by the Director of Immigration. On 24 November 1998, he applied to extend his working visa in Hong Kong because he had obtained a new job from a restaurant. At the Immigration Department, he was told by an immigration officer that "On the application form, you should say 'unconditional stay'. When you get your unconditional stay, you can then apply for the right of abode". He said his understanding was that "unconditional stay and right of abode are virtually the same thing". Afterwards he filled in the form as suggested by the immigration officer and provided the documents in support of his application. The form he used was an Application for an Extension of Stay. Thereafter there was a number of interviews with the Immigration Department in which he confirmed that he would pursue his application for unconditional stay.

5. While processing Mr Singh's application for unconditional stay, the Director of Immigration came to notice that he was charged and convicted of the offence of indecent assault. The Director of Immigration was not satisfied that he had met the criteria for the grant of unconditional stay in Hong Kong and by a letter dated 4 June 1999, the Director of Immigration refused his application. The letter stated that :

"Under existing policy, a temporary resident may be granted unconditional stay provided, inter alia, that he/her business or moral conduct is not in doubt nor is he/she known to associate with bad characters. In processing your application, we have taken into the information made available including your criminal conviction records from 1994 to 1999. Your case has been carefully considered and I regret to inform you that your application has been refused."

6. Thereafter, Mr Singh sought the help of an organization and he wrote to the Director of Immigration to reconsider his case. Although in his affirmation in support of the judicial review, he stated that he had asked the Director of Immigration to reconsider his case for permanent residence, in the letters he wrote he actually referred to a request for a review of a decision on unconditional stay.

7. By a letter dated 9 October 1999, the Director of Immigration reaffirmed his earlier decision, he repeated the policy referred to in the earlier letter, and further stated that :

".... As unconditional stay is granted at the discretion of the Director having regard to the policy criteria mentioned above, your application was fully considered under that policy. In view of your criminal conviction records between 1994 and 1999, you are therefore not qualified for the granting of unconditional stay status."

"..... your application for unconditional stay was refused once in May 1998. Your latest arrest by the police in January 1999 for the offence of indecent assault and the subsequent conviction in May 1999, coupled with your previous conviction records formed the basis of our decision to refuse your application again in June 1999."

The application for permanent resident status

8. Thereafter, there was further appeals made by Mr Singh to the Chief Executive which was not successful. He then instructed his present solicitors Barnes & Daly who took up the matter with the Director of Immigration. On 30 May 2000, Barnes & Daly wrote to the Director of Immigration stating :

"Mr. Singh is a permanent resident pursuant to Article 24(2)(4) of the Basic Law. He claims that the formal verification of his status was wrongly refused when he claimed such status in October 1998 and when he was informed that he was denied 'unconditional stay' in a letter dated 4 June 1999"

The letter further enclosed an application for verification of eligibility for permanent identity card, Form ROP145, and a Declaration, Form ROP146.

9. By a letter dated 14 June 2000, the Director of Immigration informed Barnes & Daly that Mr Singh did not meet the statutory requirements in paragraph 1(4)(b) and paragraph 3(1)(c) of Schedule 1 to the Immigration Ordinance and could not become a permanent resident of Hong Kong under paragraph 2(d) of that Schedule.

Basis Law

10. Article 24 of the Basic Law provides that :

"1. Residents of the Hong Kong Special Administrative Region ('Hong Kong residents') shall include permanent residents and non-permanent residents.

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

(1) .....;

(2) .....;

(3) .....;

(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) .....; and

(6) ......

3. 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.

4.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."

The statutory scheme

11. Under paragraph 2(d) of Schedule 1 to the Immigration Ordinance, a person not of Chinese nationality is eligible to be a permanent resident of the HKSAR if he 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 HKSAR. This is in identical terms with Article 24(2)(4) of the Basic Law.

12. Paragraph 1(4)(b) of the Schedule provides that for the purposes of calculating the continuous period of 7 years in which a person has ordinarily resided in Hong Kong, such period is reckoned to include a continuous period of 7 years immediately before the date when the person applies to the Director of Immigration for the status of a permanent resident of the HKSAR.

13. Section 2(4)(b) of the Immigration Ordinance provides that a person shall not be treated as ordinarily resident in Hong Kong during any period, whether before or after the commencement of the Immigration Ordinance, of imprisonment or detention pursuant to the sentence or order of any court.

14. Paragraph 3(1) of Schedule 1 deals with establishing permanent residence by a person qualified under Article 24(2)(4).

"(1) For the purposes of paragraph 2(d), the person is required-

(a) to furnish information that the Director reasonably requires to satisfy him that the person has taken Hong Kong as his place of permanent residence. The information may include the following-

(i) whether he has habitual residence in Hong Kong;

(ii) whether the principal members of his family (spouse and minor children) are in Hong Kong;

(iii) whether he has a reasonable means of income to support himself and his family;

(iv) whether he has paid his taxes in accordance with the law;

(b) to make a declaration in the form the Director stipulates that he has taken Hong Kong as his place of permanent residence; the declaration for a person under the age of 21 years must be made by one of his parents or by a legal guardian; and

(c) to be settled in Hong Kong at the time of the declaration."

15. As can be seen under paragraph 3(1)(c), a person is required to be settled in Hong Kong at the time of the declaration of having taken Hong Kong as his place of permanent residence. Paragraph 1(5) of Schedule 1 provides that a person is settled in Hong Kong if he is ordinarily resident in Hong Kong and is not subject to any limit of stay. A limit of stay is defined by section 2(1) of the Immigration Ordinance as "a condition of stay which limits the period during which a person may remain in Hong Kong".

Seven-year requirement not fulfilled

16. Mr Singh is not of Chinese nationality. He needs to bring himself within Article 24(2)(4) of the Basic Law in order to qualify as a permanent resident. If his application for permanent resident status was made on 30 May 2000, then because of the two-week imprisonment which he served in May 1999, he had not been ordinarily resident in Hong Kong for a continuous period of seven years immediately prior to the application. The Court of Appeal in the Commissioner of Registration v. Registration of Persons Tribunal & Another [2000] 2 HKLRD 523 ("the Fateh Muhammad case") held that the "immediately before" provision in paragraph 1(4)(b) of the Schedule 1 is not inconsistent with Article 24(2)(4) of the Basic Law. Further, the imprisonment provision in section 2(4)(b) of the Immigration Ordinance is also not inconsistent with the same article. The Court of Appeal decision is binding on me. This was accepted by Mr Dykes, SC, counsel for Mr Singh. I was informed that the Court of Final Appeal will consider the Fateh Muhammad appeal in May 2001.

Mr Singh's case

17. Mr Dykes, however, sought to distinguish the Fateh Muhammad case on the basis that Mr Singh had lodged his application for permanent residence prior to him serving the two-week sentence in May 1999 : the application was made on 24 October 1998 when he was advised by the staff of the Immigration Department to apply for unconditional stay which he did. To apply for unconditional stay is to apply for settled status in order to qualify the applicant to be eligible for permanent residence.

18. Mr Dykes further argued that the requirement that a person must be settled in accordance with paragraph 3(1)(c) of the Schedule 1 is unconstitutional because Article 24(2)(4) of the Basic Law describes a state of affairs that, upon being established as matters of fact, entitled the claimant to recognition of permanent resident status. It does not make such a status dependent upon the exercise of discretion of the Director of Immigration. His functions are governed by the Basic Law and not vice versa. The only role for the Director of Immigration that is compatible with that right is that of a finder of fact, namely whether the applicant has been ordinarily resident for more than seven years, and whether he has taken Hong Kong as his place of permanent residence. In support of his arguments, he relied on the judgment of Keith J (as he then was) who was the judge in the first instance of the Fateh Muhammad case [1999] 3 HKLRD 199. Keith J said (at 212) :

"...However, there is a powerful argument for saying that para.1(5)(b) is not compatible with art.24(4). Its effect is to make the right of abode in Hong Kong for non-Chinese nationals dependent on the Director of Immigration lifting any limit on the applicant's stay. The acquisition of the right of abode in Hong Kong is therefore dependent on the exercise of a discretion in the applicant's favour. Since art.24(4) confers the right of abode in Hong Kong on non-Chinese nationals who satisfy the ordinary residence requirement and the requirement to have taken Hong Kong as their place of permanent residence, it is strongly arguable that to impose a further hurdle for them to cross - namely, the exercise of a discretion in their favour - amounts to a derogation from the automatic right of abode in Hong Kong contemplated by art.24(4)."

Mr Dykes further submitted that if I should find the statutory scheme unconstitutional, then I should make a declaration that Mr Singh is a permanent resident of Hong Kong. Otherwise, if the Director of Immigration is directed to reconsider Mr Singh's application for permanent residence, then he would be met with the obstacle of dealing with the two-week imprisonment which disrupted his seven-year residence.

The Director of Immigration's stand

19. Mr Fok, SC, counsel for the Director of Immigration, submitted that there are two distinct statutory schemes, one relating to the removal of conditions of stay and the other relating to application for permanent resident status. Different forms are used for each of these applications and different sections in the Immigration Department are responsible for these applications as well. What Mr Singh had applied for on 25 October 1998 was an application to have unconditional stay in Hong Kong. This was also the same application when he asked for a review of the decision of the Director of Immigration. It was only in respect of the application on 30 May 2000 that he applied for permanent resident status. To that, he clearly had not fulfilled the seven-year ordinarily residence requirement because of his two-week imprisonment and it is, therefore, not necessary to consider the arguments on the constitutionality of the statutory scheme relating to unconditional stay.

20. If I need to consider this issue, then I should adopt the approach of Ribeiro JA (as he then was) in the Court of Appeal which heard the appeal of the Fateh Muhammad case, in which he stated, obiter, that implicit in the "taking Hong Kong" condition, the applicant must not only declare his own intention to reside here indefinitely, but must also not to be subject to a lawful restriction against his so doing.

Conditions of stay

21. Under section 11(2) of the Immigration Ordinance, when permission is given to a person to land or remain in Hong Kong, an immigration officer may impose a limit of stay and such other conditions of stay. Regulation 2 of the Immigration Regulations sets out the conditions that may be imposed on different categories of persons such as visitors, persons in transit, students, employees and contract seamen who are given the permission to land in Hong Kong. Regulation 2(4) provides that those who are permitted to land in Hong Kong for employment shall be subject to the condition of stay that they shall only take such employment, or establish, or join in such business, as may be approved by the Director of Immigration. Section 11(5A) of the Immigration Ordinance provides that an immigration officer may cancel or vary the conditions of stay.

22. Hence, it is clear that, apart from its place in the statutory scheme relating to application for permanent residence, there is a distinct and separate scheme relating to conditions of stay and removing such conditions for those who are permitted to land in Hong Kong. These persons may not necessarily wish to become permanent residents in Hong Kong even if they are given unconditional stay.

An integral part?

23. I accept in a sense the application for unconditional stay is an integral part of the application for permanent residence, because under the existing scheme, unless you have unconditional stay which is the equivalent of settled status, you would not be qualified as a permanent resident even if you have fulfilled the seven-year ordinarily residence requirement. However, I am not convinced that by lodging the application for unconditional stay, an applicant, or Mr Singh in this present case, has already invoked the procedure for applying for permanent residence in Hong Kong. It is merely a step to fulfill a condition which needs to be present when an applicant wishes to become a permanent resident of Hong Kong.

24. It is clear from the judgment of the Court of Appeal in Fateh Muhammad, which followed the decisions of the Court of Final Appeal in Ng Ka Ling & Others v. Director of Immigration [1999] 2 HKCFAR 4 and Lau Kong Yung & Others v. Director of Immigration [1999] 2 HKCFAR 300 that there is a clear distinction between establishing a permanent resident status under Article 24(2)(4), which an applicant is required to do and enjoying the rights which that status gives. Paragraph 3(2) of the Schedule 1 provides that a person claiming to have the status of a permanent resident does not have such status until he has applied to the Director of Immigration and the application has been approved by him. In my view, an application for permanent resident status is made when the person lodged the application for verification of eligibility for permanent identity card which is the document required to be lodged in applying for permanent residence and not earlier. It is clear from the wording of paragraph 1(4) of Schedule 1 which states that for the purposes of calculating the continuous period of seven years in which a person has ordinarily resided in Hong Kong, the period is reckoned to include a continuous period of seven years immediately before the date when the person applies to the Director for the status of a permanent resident of the Hong Kong (my emphasis). The earlier application for unconditional stay cannot be treated as such an application because even if such an application is approved, an applicant still needs to satisfy the Director of Immigration that he has taken Hong Kong as his place of permanent residence. Hence, in the present case, even though Mr Singh may have considered that unconditional stay is the same as right of abode, the fact remains that the steps he had taken to apply for unconditional stay cannot be treated as an application for permanent resident status. On the facts of this case, he had not met the seven-year ordinarily requirement when he lodged his application on 30 May 2000.

The "settlement" requirement

25. Although Keith J referred to the argument that the settlement requirement which depends on the discretion of the Director of Immigration is not compatible with Article 24(2)(4), he did not actually decide on this issue because on the facts of that case, the issue was not determinative of the applicant's right. Likewise, it is not necessary for me to come to any concluded view on this matter because this is not a matter that would be determinative of Mr Singh's right in this case when he clearly had not fulfilled the seven-year ordinarily residence requirement in the first place.

Mr Singh would not have succeeded in any event

26. In any event, even if Mr Dykes is correct in his submission, Mr Singh would still not have succeeded in this application because as Mr Dykes had recognised, if the decisions were quashed, any fresh consideration by the Director of Immigration would inevitably result in a refusal because the seven-year ordinarily residence requirement had not been fulfilled. It is clearly beyond the jurisdiction of the court to take upon itself to decide that Mr Singh is a permanent resident when under the statute such a status has to be approved by the Director of Immigration.

Conclusion

27. As Mr Dykes had confined his submissions to the narrow point on the compatibility of the limit of stay provision, it was not challenged that the first and second decisions were not Wednesbury unreasonable. The third decision was obviously a correct one.

28. In the circumstances, I shall dismiss the application and order that the Director of Immigration is to have the costs nisi of this application.