Immigration: Registration of Persons Tribunal - Wan Chai

[kma88]

There is no financial costs incurred in lodging an appeal, unless you hire a lawyer or an expert witness, etc. If you want to know more, try calling the tribunal office. They have some staff there who can answer your queries.

[dossier]

Thanks. The Registration of Persons Tribunal has confirmed there is no cost involved in the process, nor is there any potential for a cost-order against you in the event of being unsuccessful (i.e. for the Director of Immigration's costs).

However, what about if you win at the Tribunal, but are then taken to the Court of First Instance in a judicial review (as was the case in the Man Wai Sing case), and do not qualify for legal aid? (albeit you being the Respondant party rather than the party who has brought the judicial review case - i.e. the Director of Immigration)

[dossier]

I have gone thru an appeal at the HKSAR passports appeal board (but lost). I believe has the same structure & procedures as the registration of persons tribunal. In fact they are based in the same location. It operates like a mini and informal court. Both sides (the person lodging the appeal and the immigration department) will present their arguments. The tribunal will schedule a hearing if necessary where both sides will attend, and will make a decision after that. The tribunal is made up of professionals, particularly lawyers. And each proceeding will be heard by three of its members. My whole appeal, from the time I lodge an appeal application, to the final verdict, took about 9 months.

Thanks kma88: can you share a bit about the actual process and timing that happened?

Did you just self-represent (without any professional legal assistance) throughout?

And how was the actual "hearing" process itself? Any tips on first hand dealings are most welcome

[kma88]

It took around 7 months from the time lodging the appeal to the actual hearing, and in between you submit the supporting documents/evidence supporting your case. I did not hire professionals as I think I am quite aware of the key legal issues about my case. In fact I knew the respective laws probably better than the appeal board members. The actual hearing is akin to a court case, although less formal. It was pretty much a fact-finding exercise for the tribunal, so just prepared to have all the info on hand, esp those info that support your case.

Do bear in mind though, I went through the SAR passports appeal board as I was applying directly for the HKSAR passport rather than VEPIC / HKID. You are going thru the Registrations of Persons tribunal. The latter are probably more experienced as they handle a lot more cases.

[dossier]

I was appealing against the ImmD's decision to reject my overseas born child's application of HKSAR passport. So the key is whether the child has Chinese nationality based on Article 5 of the Chinese Nationality Law. And in our case it centers on whether I (the Chinese parent) is "settled abroad". ImmD's argument is that I have permanent residence in Singapore, and "permanent residence" = "settled abroad". My argument was that the Singapore status needs to be renewed every 5 years on basis of continual employment, so it's really not "permanent" despite the name. And in addition our child despite born in Singapore is not entitled to SG citizenship. But in the end the tribunal took the view of the ImmD, basically stating that since everyone in the family was physically living in SG and running our lives here then we are "settled" in SG. I guess my next option is to challenge this in the HK courts, which I am not prepared to do.

Thanks. Your grounds were similar to the HCAL 103/2011 Court of First Instance case of MASTER LAMB NICHOLAS EDWARD vs. the REGISTRATION OF PERSONS TRIBUNAL and COMMISSIONER OF REGISTRATION in 31 December 2012.

In that instance, Master Lamb, born in Canada in 2008, obtained Canadian Citizenship at birth, but his parents were in Canada as permanent residents, although Canadian PR was subject to renewal and could be lost.

However, the CFI also ruled against Master Lamb. Master Lamb had legal aid funding.

http://lexisnexishk.com/2013/01/07/cases-highlights-2/

[dossier]

Something seems off here. The "settled abroad" rule only comes into play when the child has a foreign nationality at birth. Your child is not entitled to SG nationality, and ImmD said that the child doesn't have Chinese nationality either ... so your child is de jure stateless?

I agree with Ice Eagle. In the case of CACV351/2001 TSE PATRICK YIU HON vs. HKSAR Passport Appeals board and the Director of Immigration in 28 January 2002, the Court of Appeal found that as Patrick Tse was born in Germany, but did not obtain German nationality at birth, he is a Chinese national under Article 5.

12. For this reason, since the Applicant’s parents are Chinese nationals and he has not acquired any foreign nationality at birth, by virtue of the above provision, the Applicant is a person who satisfies the requirements in Article 5 of the Chinese Nationality Law and shall have Chinese nationality.

25. For the reasons given the Director of Immigration cannot cancel the Hong Kong Special Administrative Region Passport of the Applicant. The appeal must be allowed. The judgment of the trial judge is set aside and the decision of the Director of Immigration quashed.

26. We would also make an order nisi that costs be to the Applicant at the trial as well as in this appeal.

So Patrick Tse won. Strangely, costs were still ordered against him for the CFI and CA process.

[dossier]

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.

Paragraph 1 of Cap 115 Schedule 1 of the Immigration Ordinance states that:

“(5) A person is settled in Hong Kong if-
(a) he is ordinarily resident in Hong Kong; and
(b) he is not subject to any limit of stay in Hong Kong.”

So you can be settled in Hong Kong if you have no limit of stay (e.g. unconditional stay, RTL, ROA)

Ordinary residence is defined on the Immigration Department's own web site as: http://www.immd.gov.hk/eng/services/roa/term.html

Ordinary Residence

You have ordinary residence in Hong Kong if you remain in Hong Kong legally, voluntarily and for a settled purpose (such as for education, employment or residence), whether of short or long duration. That status does not change if you are temporarily absent from Hong Kong.

Whether or not you have ceased to be ordinarily resident in Hong Kong is determined by your circumstances and those of your absence. The circumstances may include:

The reason, duration and frequency of any absence from Hong Kong;
Whether you have habitual residence in Hong Kong;
Whether you are employed by a Hong Kong based company; and
The whereabouts of the principal members of your family (spouse and minor children).
You will, however, not be treated as ordinarily resident in Hong Kong
During any period in which you remain in Hong Kong:
With or without the authority of the Director of Immigration, after landing unlawfully; or
In contravention of any condition of stay; or
As a refugee, or while in detention pending determination of refugee status or removal; or
While employed as a contract worker from outside Hong Kong under a Government importation of labour scheme; or
While employed as a domestic helper from outside Hong Kong; or
As a member of a consular post within the meaning of the Consular Relations Ordinance; or
As a member of the Hong Kong Garrison; or
As the holder of a prescribed Central People’s Government travel document; or
During any period of imprisonment or detention pursuant to the sentence or order of any court.

[dossier]

There is no financial costs incurred in lodging an appeal, unless you hire a lawyer or an expert witness, etc. If you want to know more, try calling the tribunal office. They have some staff there who can answer your queries.

Thanks. The issue is not the "no financial cost" of the tribunal; it is the potential costs of winning at the tribunal (ironically). There are two recent cases in the last 3 years where people won at the tribunal, and then the Commissioner (Immigration Department) took them to the High Court (Court of First Instance):

1. James McAllister (c/o Mother Chan Hei-Yee)

2. Man Wai-Sing

Both of them won at the Registration of Persons Tribunal; both of them were taken to the High Court (CFI) by the Commissioner

[Morrison]

If it is less than the cost of now abolished investment visa you made a deal....


Sent from my iPhone using GeoClicks

[dossier]

The case of HCAL 136 of 2013: COMMISSIONER OF REGISTRATION vs. REGISTRATION OF PERSONS TRIBUNAL and MCALLISTER JAMES HENRY GERVASE, a minor represented by his mother and next friend CHAN HEI YEE from 10 June 2014

Result