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Immigration: Registration of Persons Tribunal - Wan Chai

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  1. #31

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    By comparison, "Permanent Residence" for non-Chinese Citizens in the Hong Kong SAR is also not "Permanent" in the sense that it can be lost after 36 months of absence! So I guess the dictionary definition of "Permanent" really doesn't work when it comes to Hong Kong immigration matters.


  2. #32

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    Quote Originally Posted by IceEagle:
    Hmm .. wouldn't Man Wai-sing have RTL though? The article says that Man Wai-sing is a former BDTC and former BDTCs either retained ROA or lost it and obtained RTL instead.

    Thinking it over, my original reading of the court case was wrong. It actually agrees with the definition on ImmD's website. Ordinary residence is only mentioned in passing because it wasn't contested. So that court case explains that "settled abroad" means permanent residence, not Right of Abode, which is ordinary residence not under a condition of stay, and then defines what it means to not be under a condition of stay. It's the tribunal's decision here that's the outlier. (However, an ImmD officer once tried to explain to me what "settled" means, and said outright that permanent residence did not matter...)

    I think that the implication here is that a condition of stay must have a specific legal meaning. Sadly, the court case does not define what that means.
    Man Wai Sing should hold the Right to Land:

    Immediately before 1 January 1983 section 8(1)(a) read as follows-

    "Right to land in Hong Kong and to remain
    free of conditions
    of stay. 8. (1) The following persons shall have the right to land in Hong Kong that is to say-
    (a) Hong Kong belongers*;".
    * "Hong Kong belonger" in section 2(1) (Interpretation) was defined as follows-

    ""Hong Kong belonger" means a person who-

    (a) immediately before 1 January 1983 was-
    (i) a British subject who was born in Hong Kong;
    (ii) a British subject by naturalization in Hong Kong; (iii) a British subject by registration in Hong Kong under section 7(2) of the British Nationality Act 1948;
    (iv) a British subject married or who had been married to, or was a child of, a person mentioned in sub-paragraph (i), (ii) or (iii);".

  3. #33

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    Well, I can't think of a country or territory where permanent residence is truly permanent in that sense (that is, irremovable like the dictionary definition). Even citizenship /nationality can be lost in the right circumstances.

    Perhaps a better term for it might have been "settled residence" or "non-sojourner residence."


  4. #34

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    The case text in relation to the Man Wai Sing case has now been published:

    Judgment


  5. #35

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    Another term might be "unconditional residence".

    Quote Originally Posted by dossier:
    The case text in relation to the Man Wai Sing case has now been published:

    Judgment
    That's really interesting. The judgement mentions in passing the following:

    This is so since it would be for Mr Man to provide sufficient evidence (which is likely be within Mr Man’s power (with the help of the parents) to produce) to show that the parents had not so settled, say by (as mentioned by the Tribunal as an example) showing that the parents had not set up their permanent home in the UK.
    This sounds like the Tribunal was pushing for a dictionary definition of 'settled' rather than giving it the specific legal meaning of 'ordinary residence not subject to a limit or condition of stay' (inherited from English/UK common law) that we saw in the court case for Lamb. In this case though, the court didn't rule on the meaning of the term 'settled'. That is a surprising result though, as one can have permanent residence in a country while locating one's permanent and real home elsewhere.

  6. #36

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    What is the current practice of the Immigration Department of the HKSAR in terms of interpreting someone as not being "settled abroad"? I have read many cases where the Director of Immigration / ROPT asserts that someone is "settled abroad", either based on having permanent residency there, or other evidence to indicate permanent settlement.

    My question is: what would constitute clear and irrefutable evidence of not being "settled abroad" under CNL?


  7. #37

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    Quote Originally Posted by dossier:
    My question is: what would constitute clear and irrefutable evidence of not being "settled abroad" under CNL?
    The same answers you got for the same question you posted in 2009.

  8. #38

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    Quote Originally Posted by dossier:
    What is the current practice of the Immigration Department of the HKSAR in terms of interpreting someone as not being "settled abroad"? I have read many cases where the Director of Immigration / ROPT asserts that someone is "settled abroad", either based on having permanent residency there, or other evidence to indicate permanent settlement.

    My question is: what would constitute clear and irrefutable evidence of not being "settled abroad" under CNL?
    Keep in mind that mainland China and HK have different rules for what this means. And HK's rules are more strict.

    In the past, I believed that "settled" was "ordinary residence not subject to a limit or condition of stay". This is what Hairball's guide states. So showing any visa that had a limit of stay (that is, you have to leave the country to renew by XX date) was proof of not being settled.

    Then I was told that permanent residence doesn't really matter. So I don't know what it means anymore.

    One thing I'm curious about - see USC Passports v. Foreign Passports [Archive] - DREAM Act Portal Forum

    Would kikibay92's child, born in the US, have ROA in HK? (kikibay92 appears to be a Chinese citizen born in HK with HK ROA, who entered the US without inspection (EWI) by illegally crossing the border from Canada as a little child, and then grew up in the US and established a permanent home in the US. So there's no visa to show anyone.)

  9. #39

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    Quote Originally Posted by emx:
    The same answers you got for the same question you posted in 2009.
    Thanks - although I ask as sometimes later precedent in Hong Kong SAR courts can set a different direction on "settled abroad" interpretations

  10. #40

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    Just on the original topic of the Registration of Persons Tribunal, it might interest some to know that there is a copy of the "Guidance Notes for Adjudicators / Registration of Persons Tribunal" at the HKU Library - University of Hong Kong Libraries /All Locations

    AUTHOR Hong Kong (China). Registration of Persons Tribunal.
    TITLE Guidance notes for adjudicators / Registration of Persons Tribunal.
    IMPRINT [Hong Kong : Registration of Persons Tribunal, 1998].

    Permanent URL for this record=> University of Hong Kong Libraries /All Locations

    Spec Coll HK Coll HK 323.63 H77 LIB USE ONLY

    I Definitions 1
    II Establishment and Constitution of Registration of Persons Tribunal 2
    III Decision not to issue a permanent identity card 2
    IV Decision to declare a permanent identity card invalid 4
    V Appeals 4
    VI Grounds of Appeal 4
    VII Appeal procedure 5
    VIII Appeal hearings 6
    IX Determination of appeal under section 3D(4) 12


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