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HCAL 198/2017
[2018] HKCFI 2173
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 198 OF 2017
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| BETWEEN |
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COMMISSIONER OF REGISTRATION |
Applicant |
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and |
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REGISTRATION OF PERSONS TRIBUNAL |
Respondent |
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WANG MIN (王敏)
also known as WANG TIFFANY MIN
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Interested Party |
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| Before: Hon Au J in Court |
| Date of Hearing: 11 September 2018 |
| Date of Judgment: 27 September 2018 |
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J U D G M E N T
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A. INTRODUCTION
1. This is the judicial review application of the Commissioner for Registration (“the Commissioner”) to challenge the decision (“the 2017 Tribunal Decision”) of the Registration of Persons Tribunal (“the Tribunal”) made on 10 February 2017.
2. In the 2017 Tribunal Decision, the Tribunal allowed the appeal (“the Appeal”) of the Interested Party (“Tiffany”) against the Commissioner’s decision of 21 September 2015 in which she refused to grant Tiffany a Hong Kong permanent identity card.
3. The Commissioner seeks an order of certiorari to quash the 2017 Tribunal Decision. The Commissioner also seeks an order of mandamus directing the Tribunal to dismiss the Appeal.
4. As usual, the Tribunal (as the respondent) adopts a neutral stance to the application, and has not taken any steps herein.
5. After leave to apply for judicial review was granted on 15 August 2017, attempts were made by the Commissioner to effect service on Tiffany at her provided addresses in Hong Kong to no avail. On 18 December 2017, the court ordered that notice of these proceedings and court papers be served on Tiffany by way of substituted service through email.
6. Although Tiffany has not responded to the email service nor has she filed any skeleton or evidence in this application, she has appeared at the hearing and opposes the application.
B. BACKGROUND
B1. The relevant statutory framework for permanent residency
7. The statutory framework that relates to the qualifications to be a Hong Kong permanent resident is well-rehearsed. Relevant for the present purposes, it is as follows.
8. Article 24 of the Basic Law (“BL24”) states, among others, that:
“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 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);
…
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.”
9. This definition of permanent residents in BL24 is implemented in paragraph 2 of Schedule 1 of the Immigration Ordinance (Cap 115) (“the IO”), which insofar as relevant provides as follows:
“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).”
10. Hence, under paragraph 2(c) of Schedule 1 of the IO (“Paragraph 2(c) of Schedule 1”), a person who is born abroad will be regarded as a Hong Kong permanent resident only if (a) he is a Chinese national; and (b) he is born to a parent who is also a Chinese national and a Hong Kong permanent resident.
11. Paragraph 1(1) of Schedule 1 defines “Chinese citizen” as a person of Chinese nationality under the Nationality Law of the People’s Republic of China (“the Nationality Law”).
12. Article 5 of the Nationality Law provides that:
“父母雙方或一方為中國公民，本人出生在外國，具有中國國籍；但父母雙方或一方為中國公民並定居在外國，本人出生時即具有外國國籍的，不具有中國國籍。
(English Translation)
Any person 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.”
13. Thus, under Article 5 of the Nationality Law, even if a person (“A”) is born to a parent who is a Chinese national, A would not be regarded as a Chinese national if at the time of A’s birth:
(1) A’s Chinese national parent has already settled abroad; and
(2) A has acquired foreign nationality.
14. In other words, under BL24 and Paragraph 2(c) of Schedule 1, as a matter of law, a person who is born abroad would not be regarded as a permanent resident in Hong Kong if at the time of his birth, his Chinese parent has already settled abroad, and he has acquired foreign nationality.
B2. Tiffany’s first application to the Commissioner
15. Tiffany’s father (“Mr Wang”) was born in Mainland China.
16. Tiffany’s mother (“Ms Boke”) was born in Mainland China. She was first issued with a Hong Kong Identity Card in November 1963. It is not disputed that she is a Chinese national and was and remains a Hong Kong permanent resident.
17. Mr Wang and Ms Boke married in 1967 and moved to the United States in the same year. Mr Wang and Ms Boke both acquired US citizenship on 23 May 1977.
18. Tiffany was born in the United States on 13 March 1982 and acquired US citizenship at birth. On 9 September 1982, about six months after her birth, Tiffany left the United States with her parents and moved to Taiwan.
19. Tiffany has lived in Taiwan since then. She renounced her US citizenship on 14 June 2013.
20. Tiffany applied for Verification of Eligibility for a Permanent Identity Card (“VEPIC”) on 23 July 2013.[1] This was rejected by the Immigration Department by letter dated 17 October 2013. The Immigration Department was of the view that she did not fall within Paragraph 2(c) of Schedule 1, since she was not a Chinese national as at the time of her birth, she acquired United States nationality and her parents had already settled abroad in the United States.
21. Notwithstanding that, on 8April 2014, Tiffany applied to the Commissioner for registration of a permanent identity card under the Registration of Persons Regulations (Cap 177A). The Commissioner refused this application by letter on the same day on the basis that there was insufficient evidence to prove that she had the right of abode in Hong Kong. I refer to this decision as “the Commissioner’s 2014 Decision”.
B3. The 2015 Tribunal Decision
22. Tiffany appealed the Commissioner’s 2014 Decision to the Tribunal. The Tribunal as then constituted (“the 2015 Tribunal”) heard the appeal (“the Previous Appeal”) on 16 January and 5 March 2015.
23. Before both the Commissioner and the 2015 Tribunal, Tiffany contended that she qualified to be a Hong Kong permanent resident under Paragraph 2(c) of Schedule 1. This was so as she said she was a person of Chinese nationality born outside Hong Kong to a Chinese citizen who was a Hong Kong permanent resident (ie, Ms Boke).
24. It was not disputed that Tiffany was: (a) born outside Hong Kong, and (b) born to a Chinese citizen (Ms Boke)who was a Hong Kong permanent resident. Hence, the only relevant question remained in the Previous Appeal for the 2015 Tribunal to determine whether Tiffany fell within Paragraph 2(c) of Schedule 1 was whether she was a Chinese national.
25. As to that question, there was no dispute that Tiffany acquired foreign nationality at birth. In the premises, the sole issue for the 2015 Tribunal in the Previous Appeal was whether Ms Boke was “settled abroad” at the time of Tiffany’s birth.
26. By way of a decision dated 14 May 2015 (“the 2015 Tribunal Decision”), the 2015 Tribunal dismissed the Previous Appeal. In doing so, the Tribunal held that:
(1) Ms Boke did settle in the United States by no later than 23 May 1977.
(2) Tiffany had failed to prove that Ms Boke was no longer settled in the United States at the time of Tiffany’s birth.
(3) As such, Tiffany was not a Chinese national under Article 5 of the Nationality Law. She therefore was not a permanent resident of Hong Kong as defined in Paragraph 2(c) of Schedule 1, and did not enjoy a right of abode in Hong Kong.
B4. Tiffany’s subsequent application and the 2017 Tribunal Decision
27. Despite the 2015 Tribunal Decision, which was made on 14 May 2015, Tiffany made a fresh VEPIC application only two months later on 15 July 2015. This was again rejected by the Immigration Department by letter dated 18 August 2015.
28. Tiffany then again applied to the Commissioner for registration of a Hong Kong permanent identity card on 21 September 2015. The Commissioner promptly refused this application by letter of the same day. I will refer to this decision as “the Commissioner’s 2015 Decision”....
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