Aziz Akbar Butt v Director Of Immigration

Judgment Date16 April 2008
Citation[2009] 2 HKLRD 1
Judgement NumberHCAL32/2007
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL32/2007 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

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BETWEEN
AZIZ AKBAR BUTT Applicant
and
DIRECTOR OF IMMIGRATION Respondent

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Before : Hon Hartmann J in Court

Date of Hearing : 16 April 2008

Date of Judgment : 16 April 2008

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J U D G M E N T

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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...

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