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Li Shuk Fan v The Director Of Immigration

Judgment Cited authorities 58 Cited in Precedent Map Related
Vincent
Judgment Date10 January 2002
Citation[2002] 1 HKLRD 561; (2002) 5 HKCFAR 1
Judgement NumberFACV2/2001
Subject MatterFinal Appeal (Civil)
CourtCourt of Final Appeal (Hong Kong)
FACV000002/2001 LI SHUK FAN v. THE DIRECTOR OF IMMIGRATION

FACV000002/2001

FACV Nos. 1-3 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL Nos. 1-3 OF 2001 (CIVIL)

(ON APPEAL FROM CACV NOS. 415-417 OF 2000)

_____________________

FACV 1/2001

BETWEEN:
NG SIU TUNG AND OTHERS Appellants
AND
THE DIRECTOR OF IMMIGRATION Respondent

_____________________

FACV 2/2001

LI SHUK FAN Appellant
AND
THE DIRECTOR OF IMMIGRATION Respondent

_____________________

FACV 3/2001

SIN HOI CHU AND OTHERS Appellants
AND
THE DIRECTOR OF IMMIGRATION Respondent

_____________________

Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Dates of Hearing: 28, 29, 30, 31 May; 1, 19, 20, 21 June; 6 and 7 September 2001

Date of Judgment: 10 January 2002

____________________

J U D G M E N T

____________________

Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ :

1. In view of the length of this judgment, we have divided it into the following sections for easy reference:

Paragraphs Heading
2 INTRODUCTION
3 BACKGROUND
13 THE PARTIES
21 THE MAIN ISSUES IN THESE APPEALS
25-39 "JUDGMENTS PREVIOUSLY RENDERED" ISSUE
40-152 "LEGITIMATE EXPECTATION" ISSUE
40 Applicants' basis for legitimate expectation
43 The Ng Ka Ling and Chan Kam Nga litigation
47 Court decisions in Ng Ka Ling and Chan Kam Nga litigation
54 Events following Court of Final Appeal decisions in the two cases
58 General statements by senior government officials
(1) Prior to 29 January 1999
65 (2) Post 29 January 1999
66 Specific representations by government agencies
(1) By Immigration Department/Secretary for Security
67 (2) By Legal Aid Department
78 "Test cases"
81 Representations viewed in context of the "test case" character of Ng Ka Ling and Chan Kam Nga
82 General representations
84 Specific representations
87 The doctrine of substantive legitimate expectation
100 The applicants' argument on substantive legitimate expectation
101 The legitimacy of the expectation considered in the light of the representations
112 The legitimacy of the expectation considered in the light of the Director of Immigration's argument that enforcement of the expectation would be contrary to law
123 The scope of the Director of Immigration's statutory discretion under ss. 11, 13 and 19(1) of the Immigration Ordinance
134 The application of the Director of Immigration's statutory powers to the facts of this case
140 The validity of the removal orders and the decisions not to quash removal orders
145 Legitimate expectation in individual cases
152-163 "ABUSE OF PROCESS" ISSUE
164-178 "PERIODS 1 AND 2" ISSUE
166 Period 1
171 Period 2
174 Periods 1 and 2 issue : determining the individual cases
179-277 "THE CONCESSION" ISSUE
179 Factual basis for the Concession
189 Nature of policy decision
190 The policy decision
193 Applicable principles
200 The Director of Immigration's interpretation of the policy
203 To whom could a claim be made
207 Presence in Hong Kong when claim was made
209 Requirement of a record
212 What amounts to a claim
215 (1) Presence/overstaying in Hong Kong
216 (2) Applying for one-way permit/certificate of entitlement
217 (3) Approaching the Legal Aid Department
222 (4) Applying for extension of stay
226 (5) Approaching the Immigration Department
228 (6) Writing to the Immigration Department or other government departments
233 Application of policy to representative applicants
278 - 293 CONCLUSION
279 (1) The "judgment previously rendered" issue
280 (2) The "legitimate expectation" issue
286 (3) The "abuse of process" issue
287 (4) The "Periods 1 and 2" issue
290 (5) The "Concession" issue
294-301 RELIEF

INTRODUCTION

2. In these appeals, the appellants ("applicants") (some of whom are representative applicants in the proceedings) seek a determination on the claims to the right of abode in Hong Kong of various classes of persons who, though not actual parties to the decisions in Ng Ka Ling & others v. The Director of Immigration (1999) 2 HKCFAR 4 and Chan Kam Nga & others v. The Director of Immigration (1999) 2 HKCFAR 82, claim that they are entitled to the benefit of those decisions. The applicants make this claim, notwithstanding the Interpretation issued by the Standing Committee of the National People's Congress (the "Standing Committee" or the "NPCSC") on 26 June 1999 which in effect displaced the interpretation which this Court in the two decisions had placed on arts. 22(4) and 24(2)(3) of the Basic Law. The applicants also seek orders quashing various decisions of the Director of Immigration including removal orders made by the Director of Immigration under s.19 of the Immigration Ordinance, Cap. 115. They base their case on five separate grounds. These grounds raise questions as to the interpretation and application of the Basic Law, the doctrine of legitimate expectation, abuse of process and the effect of the policy announced by the government of the Hong Kong Special Administrative Region (the "HKSAR" or the "Region") on the day when the Standing Committee Interpretation issued.

BACKGROUND

3. Article 24(2)(3) of the Basic Law confers the status of permanent resident and the right of abode on persons of Chinese nationality born outside Hong Kong of permanent residents who are Chinese citizens born in Hong Kong or having ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the HKSAR. The Immigration (Amendment) (No. 2) Ordinance 1997 (the "No. 2 Ordinance") was enacted on 1 July 1997 which provided, among other things, that persons eligible under art. 24(2)(3) were limited to those who were born after at least one of their parents had become a Hong Kong permanent resident (the "time of birth limitation"). The Immigration (Amendment) (No. 3) Ordinance 1997 (the "No. 3 Ordinance") was enacted on 10 July 1997 (but purporting to take effect on 1 July 1997) to put in place a scheme for the verification of permanent resident status under this article.

4. In early July 1997, a number of Mainland born children of Hong Kong permanent residents who claimed permanent resident status under art. 24(2)(3), but did not comply with provisions of the ordinances and the scheme, instituted judicial review proceedings to challenge these provisions, after the Director of Immigration had rejected their claims and made removal orders against them. The number of persons applying for legal aid to join in those proceedings or commence similar proceedings quickly increased. The large number of applications for legal aid and the potential volume of litigation aroused serious concern and attracted public responses from senior government officials regarding the government's position in relation to those proceedings. These responses conveyed that the government would abide by the decisions of the courts. Letters were written by the Legal Aid Department to individual applicants for legal aid stating that there was no need for them to commence proceedings.

5. The main issues in those proceedings centred on the exact meaning and scope of art. 24(2)(3) and its relationship with art. 22(4). In order to reduce both the number of cases and costs, several cases were chosen as suitable vehicles for a determination by the court of the common issues. Such cases were regarded as "test cases" or "representative cases", although there was no court order directing the applicants to act as representative parties for persons who had not joined in the proceedings or commenced fresh proceedings. There is also no evidence that (except perhaps in the cases assigned by the Director of Legal Aid to the same firm of solicitors acting for the chosen cases) any agreement had been reached in some other cases to the effect that they would abide or be bound by the results in those "test cases" or "representative cases". Those cases ultimately came before the Court of Final Appeal. Pending the final determination of those cases, decisions on some of the claims for permanent resident status were withheld by the Immigration Department. Applications for legal aid were also put on hold.

6. On 29 January 1999, in the first case Ng Ka Ling, this Court held, among other things, that art. 24(2)(3) was not qualified by art. 22(4) so that those persons who fell within art. 24(2)(3) and who were residing in the Mainland did not require one-way exit permits issued by the Mainland authorities to come to Hong Kong to exercise their right of abode as permanent residents. Hence, that part of the No. 3 Ordinance which required those persons to hold one-way exit permits was held to be unconstitutional as being inconsistent with art. 24(2)(3). The retrospective provision in the No. 3 Ordinance was also held to be unconstitutional.

7. On the same...

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