Case Detail

HCAL 60/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 60 OF 2009

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BETWEEN
	ABAYOMI BAMIDELE FAYOMI	Applicant
and
	SECRETARY FOR SECURITY	1^st Respondent
	DIRECTOR OF IMMIGRATION	2^nd Respondent

_______________

Before: Hon Chow J in Court

Date of Hearing: 26 March 2015

Date of Judgment: 22 May 2015

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J U D G M E N T

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INTRODUCTION

1. The applicant is a Nigerian national who first entered Hong Kong in 1994 as a visitor to “explore business opportunities in Hong Kong and China”. On 4 August 1996, he married Ms Fancy Linda Elizabeth (“Ms Fancy”), who was then permitted to remain in Hong Kong on time limitation and who later became a Hong Kong permanent resident in 2001. By reason of that marriage, the applicant was permitted to remain in Hong Kong as Ms Fancy’s dependant on 4 April 1997, and obtained an “unconditional stay” on 20 May 2003.

2. On 12 April 2005, the applicant was convicted of three criminal charges each for dealing with property known or believed to represent the proceeds of an indictable offence (arising from, it would appear, an internet fraud) and sentenced to a term of imprisonment of three years and three months in total.

3. On 10 April 2007, the applicant applied for verification of eligibility for permanent identity card (“VEPIC Application”). The application was rejected by the Director of Immigration (“the Director”) on 9 May 2007 on the ground that the applicant had not ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately before the date of the VEPIC Application.

4. On 22 May 2007, a deportation order (“the Deportation Order”) was made against the applicant requiring him to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter.

5. In his original notice of application for leave to apply for judicial review (“Form 86”) dated 21 May 2009, the applicant sought to challenge (i) the Director’s decision dated 9 May 2007 to reject the VEPIC Application, and (ii) the Secretary for Security’s Deportation Order dated 22 May 2007.

6. The applicant’s original application for judicial review was dismissed by Saunders J in his judgment given on 16 December 2009. When the matter came before the Court of Appeal, the applicant sought, and was granted, leave to amend the Form 86 to challenge “the Director of Immigration’s failure to verify the applicant’s application for permanent resident status through the submission of a form ROP 1 on 20 May 2003”.

7. By a judgment of the Court of Appeal handed down on 15 April 2013 (“the CA Judgment”), the Court of Appeal allowed the applicant’s appeal against the judgment of Saunders J on the basis that the Director, in his capacity as the Commissioner of Registration (“the Commissioner”) and acting through a registration officer, had failed to discharge his duty “to inquiry, to clarify, which of the identity cards referred to at the heading of the form [ROP 1]” (ie, a “permanent identity card” or “identity card”) was sought by the applicant when he made the application on 20 May 2003 (see paragraph 19 of the CA Judgment).

8. The Court of Appeal directed that the issue of whether the applicant suffered any “prejudice” as a result of the aforesaid breach of duty should be remitted to the Court of First Instance for argument and determination (see paragraph 41 of the CA Judgment). The Court of Appeal further directed that the question of whether relief should be refused on the ground of delay should also be remitted to the Court of First Instance for consideration afresh (see paragraph 44 of the CA Judgment).

9. This is my judgment on the issues remitted by the Court of Appeal for determination by the Court of First Instance.

BACKGROUND FACTS

10. The detailed background facts of this matter are set out in the CA Judgment. No useful purpose will be served by re-stating those facts in my own words. I set out below various passages in the CA Judgment as a sufficient summary of the relevant facts and to identify the context of the issues on which I am now required to make a determination:-

“ 1 The applicant is a national of Nigeria who has lived in Hong Kong, in various immigration capacities, since 1994. In 2004 he was arrested for an offence of dealing with property which he knew or believed to represent the proceeds of an indictable offence and he was remanded in custody pending trial for that offence. He was convicted in April 2005 and sentenced to 3 years 3 months’ imprisonment. On 22 May 2007 the Secretary for Security made an order that the applicant be deported. However, a deportation order may not lawfully be made in respect of a permanent resident of the HKSAR. The Director of Immigration had concluded that the applicant was not eligible for the status of permanent resident; whereas the applicant claimed that he was.
2 This conflict triggered the judicial review proceedings with which this appeal is concerned: the applicant challenged the Director’s decision that he was not eligible for that status as well as the Secretary’s decision to deport him.
3 The application to the Director for verification of eligibility for a permanent identity card was made on 29 March 2007, that is to say, whilst the applicant was serving his term of imprisonment and since periods of imprisonment do not constitute ordinary residence for the purpose of art. 24(2)(4) of the Basic Law and since the seven continuous years of ordinary residence must have been completed immediately before the time when an application for permanent residence is made under that limb of eligibility, the application was destined to fail: see art. 24 Basic Law and Fateh Muhammad v Commissioner of Registration and Another. Accordingly, on the application for judicial review, Saunders J dismissed the challenge to the Director’s decision of 9 May 2007 that the applicant was not eligible for permanent resident status. This appeal does not contest that aspect of the decision in the court below.
4 However, the focus of the proceedings below shifted from administrative decisions in May 2007 to events in 2003. This was because in January 2003 the applicant had made an application to the Director for unconditional stay in Hong Kong. That application was made against the following background.
5 The applicant had first entered Hong Kong in August 1994 on a visitor’s visa and it was as a visitor that he regularly entered and left and re-entered Hong Kong between that date and April 1997. In August 1996 he married a Hong Kong permanent resident. On 4 April 1997 he was granted conditional stay as a dependent of his wife, that new status to be effective as from 31 March 1997. It is now accepted, as the judge found, that whilst in Hong Kong as a mere visitor he could not, as a matter of law, be ordinarily resident here. But, assuming that he was on and from 31 March 1997 ordinarily resident in Hong Kong and remained so continuously thereafter, he could on and after 31 March 2004 successfully seek verification for eligibility as a permanent resident, provided also that he was able truthfully to state on the date of his application that he had adopted Hong Kong as his place of permanent residence.
6 Against that background, he applied in January 2003 for unconditional stay. On 20 May 2003 and at the invitation of the Director, he attended the Immigration Department pursuant to that application where a decision was made that day to grant him unconditional stay. Since, as a result, he was entitled to a different identity card evidencing that new status, he was given a form ROP 1, which is an application form ‘for a permanent identity card/ an identity card’. He filled it in. To the question: ‘Have you been ordinarily resident in the HKSAR for a continuous period of not less than 7 years?’ he ticked the ‘Yes’ box.
7 It seems that the form was presented to a registration officer; an officer acting on behalf of the Commissioner for Registration. The applicant was provided by the Registration of Persons section with a new identity card marked ‘U’ to denote his unconditional stay status but nothing was said to him about permanent residence status or a permanent identity card.
8 The judge concluded, relying on the decision of this Court, differently constituted, in Yoothip v Secretary for Security & Commissioner of Registration, that the Commissioner of Registration was obliged to treat the form ROP 1 completed by the applicant as a claim by him for eligibility for permanent resident status and that the document should have been referred to the Director for consideration of that claim. But he recognized that had the application been treated as an application for verification of permanent residence status, it would have failed because by 20 May 2003, seven years of ordinary residence had not been completed.
9 However, the applicant then argued that had the Director properly discharged his duty on 20 May 2003 by referring the application for an identity card for verification of status, the applicant would have been advised that his period of residence whilst a visitor did not constitute ordinary residence for the purpose of his application, wherefore he would then have realised that he should renew his application on or after 31 March 2004. In short, so the argument ran, the applicant was, by reason of this breach of duty in May 2003, deprived of the opportunity of making an application during the period of his eligibility for permanent residence verification; put by the applicant as the period between 31 March 2004 and the time of his incarceration in September 2004.
…..
13 The relief now sought, by way of proposed amendment to the notice of application, is an order of mandamus requiring the Director of Immigration to process the form ROP 1 submitted on 20 May 2003 as an application for permanent residence status and as if made on 31 August 2004. The latter date is chosen because it is shortly prior to the applicant’s arrest and remand in custody in the late summer of 2004, when, on one view, continuous ordinary residence was interrupted. The current state of the law is that continuous ordinary residence is only interrupted from the date of sentence, if the sentence is one of imprisonment; as to which I note that the original Notice of Application asserts that the Director ‘failed to advise the Applicant properly as to his right to apply for permanent residency in the period from 20^th May 2003 to April 2005’ (the date of sentence). The Notice went on to assert that had the applicant been notified in or about May 2003 that ‘his application for permanent identity card failed because of insufficient period of ordinary residence, he would have applied for permanent residency again in 2004 or any time thereafter but before the applicant was sent to prison in 2005.’
…..
19 … But even so, I would respectfully suggest that it is incumbent upon the registration officer to treat the form ROP 1 application by a non-Chinese citizen as an application for a permanent identity card only where the applicant asserts either orally or in writing that that is what he wants. Where it is clear that the application is an application for a permanent identity card, the duty, naturally, is to treat it as such and to refer it for verification of that status. Where, however, that is not clear, fairness dictates only a duty to inquire, to clarify, which of the identity cards referred to at the heading of the form is sought. That duty arises because the form is not itself an application for verification and because the assertion that one has been ordinarily resident for seven years is not an assertion that one has taken Hong Kong as one’s place of permanent residence. Nor, in my opinion, absent an application for verification, is there a duty to advise an applicant that he is or may be entitled to a permanent identity card although there is a duty, if asked the question, to notify a prospective applicant of the conditions precedent to the issue of such a card. All of this is to state no more, in my opinion, than the obvious in terms of fair and manageable administration.”

THE EVIDENCE BEFORE THE COURT

11. Subsequent to the handing down of the CA Judgment on 15 April 2013, none of the parties filed any further affidavit or affirmation in this application. Accordingly, the evidence now before me consists of the original affidavits or affirmations, together with the respective exhibits thereto, which were before the Court of Appeal. In addition, at the hearing before me, the applicant and Ms Fancy were cross-examined by Ms Sit (for the respondents) and re-examined by Mr Dykes SC (for the applicant).

THE DOCUMENTARY EVIDENCE

12. Subject to the evidence of the applicant and Ms Fancy which I shall examine below, the documentary evidence indicates that at all material times the applicant was fully aware (i) of the distinction between the “unconditional stay” and “permanent resident” status, and (ii) that he had not applied to become a Hong Kong permanent resident prior to around 10 April 2007. The following documents are of particular relevance in this regard.

13. First, the applicant made an application for “unconditional stay” on a form entitled “Application for an Extension of Stay” dated 21 January 2003. In one of the boxes in the application form, the word “UNCONDITIONALLY” was filled in after the printed words “I now apply to extend my stay until”.

14. Second, in a document entitled “Application for Unconditional Stay (Declaration of applicant aged 18 or over)” signed by the applicant dated 21 January 2003, the applicant stated that he was applying for “unconditional stay” in Hong Kong.

15. Third, in the sponsorship form signed by Ms Fancy in support of the applicant’s application for unconditional stay which was received by the Director on 22 January 2003, Ms Fancy stated that she was willing to sponsor her spouse (ie the applicant) in applying for “unconditional stay” in Hong Kong.

16. Fourth, by a standard form letter dated 7 May 2003, the Director asked the applicant to attend the office of the Immigration Department regarding “your application for extension of stay/unconditional stay”. The applicant was also asked to bring along his passport and his or his spouse’s financial proof. It may noted the other printed option on that letter (namely, “your application for Hong Kong Special Administrative Region Passport/Hong Kong Document of Identity”) plainly had no relevance to the applicant’s situation.

17. Fifth, in Ms Fancy’s letter which was sent by fax to the Immigration Department on 24 December 2005 (“the December 2005 Letter”) objecting to the proposed deportation of the applicant, Ms Fancy stated, in paragraph 2, as follows:-

“ He [ie the applicant] has lived in Hong King in excess of the seven years which is required in order to apply for permanent residence. He has unconditional stay and was only too busy to apply for his permanent residence however he is eligible for such.”

18. Sixth, in the applicant’s own letter to the Director dated 20 March 2007 (“the March 2007 Letter”) which he wrote during his interview by an officer of the Immigration Department while he was still in prison setting out his reasons for objecting to his proposed deportation, the applicant stated, inter alia, as follows:-

“ As at January 2003 I got the application forms for an unconditional stay and permanent stay in Hong Kong. I got the application forms from immigration department in Wanchai in 2003. But I was busy travelling mostly between HK and mainland China, so effect I submitted only my application for unconditional stay at the time because I thought I can pick up my permanent ID card at any convenient time…”

19. The contents of the March 2007 Letter are consistent with the file minute prepared by the immigration officer who interviewed the applicant on 20 March 2007. In that minute, it was recorded that:-

“ Subject stated that he should have right of abode in Hong Kong. However, he was just too busy in 2003 and applied for unconditional stay only. He had furnished an undertaking to state his claim …”.

20. Seventh, in an undated letter written by the applicant giving his instructions to his former solicitors (which the applicant at one stage in his evidence said was written in his former solicitors’ office after he had been released from detention in June 2007 but later suggested it might have been written while he was still in detention), the applicant stated, inter alia, as follows:-

“ In 2003, I was granted unconditional stay in Hong Kong.”

21. Eighth, in a further letter from the applicant to the Director dated 31 May 2007 to object to his proposed removal from Hong Kong, the applicant stated, inter alia, as follows:-

“ … I have unconditional stay status. As such I have a right of abode in Hong Kong.”

22. When considering the above documents, I bear in mind that the applicant, as he admitted in his evidence, has received university education and understands English. He gave evidence before me in English. Further, as can be seen from his passport (covering a period from 1994 to 1999) and as mentioned in his former solicitors’ letter dated 27 March 2007 to the Immigration Department, he used to travel frequently to English speaking countries (including the USA and Canada) to do business. There is no reason to believe that the applicant did not mean what he said in the various documents mentioned above. In so far as Ms Fancy is concerned, she is a British born Australian national, and obtained her Hong Kong permanent resident status in 2001. She accepted in her evidence that she understood the difference between unconditional stay and a permanent identity card.

THE EVIDENCE OF THE APPLICANT AND MS FANCY

(i) The Application for an Extension of Stay

23. In relation to the Application for an Extension of Stay, the applicant alleged, when giving evidence in cross examination, that the word “UNCONDITIONALLY” was not written by him but by someone else (presumably the immigration officer handling his application). This is a new allegation which has never previously been made by the applicant in his affirmations filed in this application or in letters written by him or by his solicitors on his behalf.

24. In any event, even if, which I do accept, the word “UNCONDITIONALLY” on the Application for an Extension of Stay was not written by the applicant, I consider that the applicant knew full well, in January 2003, that what he applied for was unconditional stay. It was clear from the application form itself that the applicant’s application was for an extension of stay. The nature of his application (namely, for unconditional stay) was clearly stated in the document entitled “Application for Unconditional Stay (Declaration of applicant aged 18 or over)” signed by the applicant dated 21 January 2003, the sponsorship form signed by Ms Fancy received by the Director on 22 January 2003, as well as the letter sent by the Director to the applicant dated 27 May 2003 asking him to attend the office of the Immigration Department regarding his application. In my view, the applicant’s allegation that the word “UNCONDITIONALLY” on the Application for an Extension of Stay was not written by him (even if true) would not materially affect the determination of the question of whether he was aware of the difference between unconditional stay and permanent resident status, and whether he suffered any prejudice as a result of the breach of duty of inquiry on the part of the Commissioner as found by the Court of Appeal.

(ii) The December 2005 Letter

25. In respect of the December 2005 Letter, Ms Fancy’s evidence is that on 24 December 2005, when she was on her way to the airport, she received a call from an immigration officer who told her that the Immigration Department was minded to deport the applicant. According to Ms Fancy, she was surprised by what the immigration officer said to her because she thought that the applicant had already become a Hong Kong permanent resident having resided in Hong Kong for over 7 years and it was not possible for a permanent resident to be deported from Hong Kong. However, she was told by the immigration officer that the applicant was not a Hong Kong permanent resident because he had not applied to become one and that he only had the unconditional stay status. Ms Fancy said she was curious and puzzled by what the immigration officer said but decided not to argue with him because she was then in a hurry. She further said that the immigration officer asked her to write three reasons in support of the applicant’s position and explain why he did not apply for the permanent resident status previously. Ms Fancy said that the immigration officer told her that the matter was urgent and she could fax her representations to the Immigration Department from the airport. According to Ms Fancy, she was under “stress” at that time as her flight would soon be departing. Thus, she “just tried to write down an excuse for [the applicant]” that he was too busy to apply for the permanent resident status, because she thought that “it was the most common excuse for anyone who omitted to do something”, such excuse being her “personal feeling rather than a statement of fact” (see paragraph 10 of Ms Fancy’s affirmation filed on 4 November 2009).

26. Ms Fancy also said, in her oral evidence, that because she had been told by the immigration officer that the applicant did not have the permanent resident status, she had “got to incorporate that” in the reasons she gave in her letter in support of the applicant.

27. In the December 2005 Letter, Ms Fancy gave two other reasons to object to the proposed deportation, namely:-

(1) She herself was a Hong Kong permanent resident, and the proposed deportation of the applicant would split up her family as she would not be able to see him.
(2) The applicant was used as an “accessory to the crime” and it had not been proven in any way that he was guilty of the offences for which he had been convicted in the first instance. In her words, the applicant was “an innocent by-stander”.

28. While these two reasons might or might not be valid, they were certainly rational.

29. I have carefully considered Ms Fancy’s explanation as to why, in the December 2005 Letter, she would state that the applicant “has unconditional stay and was only too busy to apply for his permanent residence however he is eligible for such”. I bear in mind that the applicant and Ms Fancy have divorced, and thus there may be less incentive for her to make up a story to support the applicant’s case. I am, however, unable to accept her explanation. I accept that Ms Fancy might well have been under time constraint or, in her words, “under stress”, when she wrote the letter on her way to the airport on 24 December 2005. However, she was plainly aware, as she admitted in her evidence, of the importance of the matter. I do not accept that Ms Fancy would simply make up a reason to explain why the applicant did not apply for the permanent resident status previously.

30. In my view, Ms Fancy stated in the December 2005 Letter that the applicant had an “unconditional stay” and was “eligible” for permanent residence in Hong Kong but was too busy to apply for it because she honestly thought that was indeed the position.

(iii) The March 2007 Letter

31. In the Form 86 and his affirmations, the applicant alleged that he wrote the March 2007 Letter under the dictation of an immigrant officer in the course of an interview while he was still in prison on or about 20 March 2007.

32. In his evidence given under cross examination, the applicant went further and alleged that during the interview, the immigration officer brought up the December 2005 Letter written by Ms Fancy and dictated to him a letter to explain why he had not made an application for the Hong Kong permanent resident status previously. The applicant did as instructed by the immigration officer but after he had read through the letter, he told the immigration officer that he could not sign it and then tore it up. Thereupon, the applicant wrote another letter again under the dictation of the immigration officer and that became the March 2007 Letter. According to the applicant, all these happened while he and the immigration officer were in an interview room and the whole proceedings were captured by video recording.

33. The applicant’s allegation that he wrote an earlier letter under the dictation of an immigration officer in his interview on 20 March 2007 which he tore up and then proceeded to write another letter under dictation is a new allegation which has never been mentioned in the Form 86/Amended Form 86 or in any of his previous affirmations. The suggestion that all these were done in front of a video recording machine in an interview room in the prison is, in my view, incredible.

34. I do not accept the applicant’s allegation that the March 2005 Letter was written by him under the dictation of an immigration officer. I consider that the contents of that letter reflected what he genuinely thought to have been the position at that time, in particular he applied for unconditional stay only but not for a Hong Kong permanent identity card because he was busy travelling between Hong Kong and China and thought that he could apply for one at any time convenient to him.

35. For the sake of completeness, I should address a point mentioned at paragraph 32 of the CA Judgment in respect of the meaning of the applicant’s statement in the March 2007 Letter that he “submitted only my application for unconditional stay at the time because I thought I can pick up my permanent ID card at any convenient time”. I do not read that statement as meaning that the applicant thought that a permanent identity card would follow, or automatically follow, from an unconditional stay. That statement, it seems to me, should be read in context, in particular the sentence preceding it, ie “But I was busy travelling mostly between HK and mainland China”. I consider the applicant to be saying simply that he thought that he could apply for and obtain a permanent identity card at any time to his convenience, but he did not do so at that time because he was too busy travelling between Hong Kong and mainland China.

(iv) The applicant’s knowledge that he had not gotaHong Kong permanent resident status

36. Having regard to the documentary evidence and the matters mentioned above, I consider it to be clear that the applicant knew, in January 2003, all that he was applying for at that time was unconditional stay. It is, however, the applicant’s evidence that in May 2003, he intended to apply for a Hong Kong permanent identity card. The applicant also said that he was unaware of the difference between unconditional stay and permanent resident status, and thought that he had been issued with a Hong Kong permanent identity card.

37. According to the applicant, when he attended the Immigration Department in answer to the letter of 7 May 2003, he first went to the 7^th floor of the building where, apparently, he had his passport endorsed with a note to the effect that all conditions of stay were cancelled. Afterwards, he was directed to go to the 8^th floor of the same building to change his identity card. The applicant said that he made it known that he wanted a permanent identity card and he was given the Form ROP 1. He filled in the form, ticking the “yes” box in answer to the question “Have you been ordinarily resident in the HKSAR for a continuous period of not less than 7 years”, and submitted it to the Immigration Department. Later, the applicant was issued with a new identity card.

38. Significantly, the applicant said, in his oral evidence, that after he had got his new identity card, he compared it with Ms Fancy’s identity card and noticed a difference between the two, in that her identity card bore the words “permanent” or “permanent resident”. The applicant thought that he had also been issued with a permanent identity card, even though the identity card that he obtained did not say so. The applicant came to that view because (according to him) he had got an endorsement in his passport stating that he no longer required a visa to enter Hong Kong, and he thought that Ms Fancy, being British or a British passport holder, would be given an identity card bearing the word “permanent” or stating her status as a “permanent resident”. The applicant also said that only Chinese and British would be given identity cards bearing the words “permanent” or “permanent resident”.

39. The applicant’s suggestion that only Chinese or British would be given identity cards bearing the words “permanent” or “permanent resident” has, of course, no foundation. What is significant, though, is his admission that when he got his new identity card in May 2003, he compared it with Ms Fancy’s identity card and noticed that the two were different in that Ms Fancy’s identity card had the word “permanent” stated thereon while his identity card did not have that word. In my view, it must have been clear to the applicant that he did not get a permanent identity card at that time. His suggestion that he thought he had obtained the permanent resident status because his passport stated that all conditions of stay were cancelled or he no longer required any visa to enter Hong Kong is, in my view, unsustainable. As earlier mentioned, the applicant knew full well that what he applied for in January 2003 was unconditional stay and his application was successful. Thus, he must have realised that the endorsement on his passport merely reflected his unconditional stay status but did not mean that he had obtained the permanent resident status. I do not accept his assertion made in his re-examination that he understood unconditional stay to be the same as permanent residence.

40. In all, I find that the applicant knew, when he obtained his new identify card in May 2003, that that he did not obtain the Hong Kong permanent resident status and was not issued with a Hong Kong permanent identity card.

FINDINGS ON THE ISSUE OF PREJUDICE

41. For the reasons given above, I make the following findings of fact:-

(1) the applicant was aware, in January 2003, that what he applied for was unconditional stay;
(2) the applicant knew, when he got his new identity card in May 2003, that he did not obtain the Hong Kong permanent resident status and was not issued with a Hong Kong permanent identity card;
(3) the applicant was at all material times aware of the difference between the unconditional stay and Hong Kong permanent resident status; and
(4) the applicant did not apply for a Hong Kong permanent identity card between 31 March 2004 (the date when, on one view of the matter, he may be regarded as having been ordinarily resident in Hong Kong for not less than 7 years) and 12 April 2005 (the date when he was sentenced to imprisonment) because he thought that he could apply for one at any time to his convenience and he was either too busy or did not see any urgent need to do so during that period.

42. It follows from the above findings that I do not consider that it would have made any difference even if the Commissioner had not failed in his duty to “inquire” or “clarify” in May 2003 as found by the Court of Appeal. In other words, the applicant did not suffer any prejudice as a result of that breach of duty.

43. In passing, I should mention that there is a short affirmation filed by Tsui Pui Pui, the applicant’s business partner since 2000, in support of the applicant’s application. Her evidence is largely based on what she allegedly was told by the applicant, in particular she says that the applicant told her that he was already a Hong Kong permanent resident many years ago. Having rejected the applicant’s direct evidence on the central issues mentioned above, I am not prepared to attach weight to the affirmation of Tsui Pui Pui.

DELAY

44. In view of my conclusions above on the issue of prejudice, I propose to deal with the issue of delay briefly.

45. As mentioned in paragraph 42 of the CA Judgment, the Form 86 was filed in May 2009, two years after the deportation order and the decision to reject the VEPIC application in 2007, and six years after the events of May 2003. There was undoubtedly substantial delay in making the present application. Nevertheless, the Court of Appeal has granted leave to the applicant to amend the Form 86. The issue is therefore not whether there is good reason for extending the period for making the present application, but whether the court should refuse to grant relief on the ground that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration under section 21K(6) of the High Court Ordinance (Cap 4): see R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330 at 341A-F.

46. If the applicant succeeds in the present application, his VEPIC application should be considered afresh by the Director. One of the issues which the Director will have to decide is whether the applicant can satisfy the permanence requirement, which is a fact sensitive issue. With the long passage of time, it would no doubt be more difficult to arrive at a proper determination of that issue. However, the burden remains on the applicant to satisfy the permanence requirement. Moreover, this is an isolated case. I am not satisfied that granting relief in the present case would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. Accordingly, if I should have found in favour of the applicant on the issue of prejudice, I would not be minded to refuse to grant relief merely on the ground of delay.

DISPOSITION

47. For the reasons given above, I dismiss the applicant’s application for judicial review. I also make an order nisi that the applicant shall pay to the respondents their costs of this application, to be taxed if not agreed. The applicant’s own costs are to be taxed in accordance with legal aid regulations.

48. Finally, it remains for me to thank counsel for the assistance that they have rendered to the court.

	(Anderson Chow)
	Judge of the Court of First Instance
	High Court

Mr Philip J Dykes, SC, instructed by M/s Raymond Kwong & Co., for the applicant

Ms Eva Sit, instructed by Department of Justice, for the respondents

HCAL 60/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 60 OF 2009

____________

BETWEEN

	ABAYOMI BAMIDELE FAYOMI	Applicant
	and
	SECRETARY FOR SECURITY	1^st Respondent
	DIRECTOR OF IMMIGRATION	2^nd Respondent

____________

Before: Hon Saunders J in Court

Date of Hearing: 3 December 2009

Date of Judgment: 16 December 2009

_______________

J U D G M E N T

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Introduction:

1. By these proceedings Mr Fayomi seeks to challenge by way of judicial review two decisions:

(i) a decision of the Director of Immigration dated 9 May 2007, that Mr Fayomi is not eligible for permanent resident status pursuant to Schedule 1 para 2(d), Immigration Ordinance, Cap 115 (the Ordinance), and
(ii) a Deportation Order made by the Secretary for Security dated 22 May 2007, requiring Mr Fayomi to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter.

2. The relief sought comprises the quashing of both decisions, and a declaration that Mr Fayomi is eligible for permanent resident status in Hong Kong. As a permanent resident Mr Fayomi would not be liable to deportation.

The requirements for permanent resident status:

3. As a consequence of the decision in Prem Singh v Director of Immigration & Anor (2003) 6 HKCFAR 26 at §49, three conditions must be satisfied in order to qualify as a permanent resident under the provisions of Article 24 (4) of the Basic Law:

(i)  the applicant must have entered Hong Kong with a valid travel document, (the entry requirement);
(ii)  the applicant must have ordinarily resided in Hong Kong for a continuous period of not less than seven years, (the residence requirement); and
(iii)  the applicant must have taken Hong Kong as his place of permanent residence, (the permanence requirement).

4. In respect of the residence requirement, the reckoning of the period of seven years continuous ordinary residence must occur immediately before the application to establish permanent resident status: see Schedule 1, para 1(4)(b) of the Ordinance. The constitutionality of this provision was upheld by the Court of Final Appeal in Fateh Muhammad v Commissioner of Registration & Anor (2001) 4 HKCFAR 278.

5. It is accepted that Mr Fayomi meets the entry requirement. The primary issue in this case is whether or not he meets the residence requirement.

6. It is the Director of Immigration (the Director) who determines whether or not a person is entitled to stay in Hong Kong, either conditionally or unconditionally, as distinct from merely being a visitor. The presentation to an Immigration Officer, by a person not holding any right to stay in Hong Kong, of a passport or other valid travel document at a lawful entry point in Hong Kong is treated as an application for a Visitor’s Visa.

7. Once lawfully in Hong Kong, or prior to entry to Hong Kong through appropriate channels, a person may seek the right of conditional stay in Hong Kong, for example for the purposes of employment. In other circumstances a person may seek unconditional stay in Hong Kong. If the Director determines that a person is entitled to stay conditionally or unconditionally in Hong Kong, as distinct from staying merely as a Visitor, that person must then make application to the Commissioner of Registration (the Commissioner) pursuant to the Registration of Persons Ordnance, Cap 177 (ROP Ordinance) for an identity card.

8. Upon a person believing that they meet all three requirements for permanent residence, on that person making an application to the Commissioner for a permanent identity card, the application is referred to the Immigration Department for verification of eligibility for permanent identity card. This is an exercise which attracts the unnecessary acronym VEPIC.

9. The posts of Director of Immigration, (established under s 3 & Schedule 1, Immigration Service Ordinance, Cap 331) and Commissioner of Registration, (established under s 2(1) ROP Ordinance) are occupied by the same individual.

10. It appears from the evidence that the duties of the Commissioner are discharged by the Registration of Persons subdivision of the Immigration Department, which subdivision is responsible for issuing Hong Kong identity cards to persons entitled to conditional or unconditional stay in Hong Kong. Within that subdivision is a Right of Abode Section which is responsible for processing applications for VEPIC.

The background facts:

11. Mr Fayomi was born on 14 February 1958 in Ondo, Nigeria, and is now aged 59. He first came to Hong Kong on 4 August 1994, when he was granted a 3 month Visitor’s Visa. His evidence was that he came to Hong Kong to “explore business and opportunities”.

12. He remained in Hong Kong for eight days, and on 11 August 1994, departed Hong Kong for China. He returned to Hong Kong on 16 August 1994, after a four-day absence. On his return to Hong Kong he was granted a new Visitor’s Visa, this expiring on 16 November 1994. Mr Fayomi left Hong Kong after 51 days, prior to the expiry of this Visa, on 5 October 1994. He was absent from Hong Kong for 38 days, re-entering on 13 November 1994, when he was granted a new Visitor’s Visa which was due to expire on 13 February 1995.

13. Thereafter, until 31 March 1997, Mr Fayomi lived in Hong Kong, occasionally leaving Hong Kong, but returning, either immediately on the same day or within two or three days.

14. On three occasions he stayed away longer than three days. In October-November 1994, the absence was for 38 days, in June-July 1996, for 27 days, and in October 1996, for six days. On each occasion of return, until May 1996, Mr Fayomi was granted a new three-month Visitor’s Visa. Thereafter, on one such occasion, in September 1996 he was again granted a new three-month Visitor’s Visa, in July 1996, he was granted a three-week Visitor’s Visa, and in October 1996, a two-week Visitor’s Visa. Finally, in February 1997, he was granted a one-month Visitor’s Visa, which was extended to 9 April 1997.

15. On 14 occasions he was granted an extension of his Visitor’s Visa, enabling him to stay in Hong Kong without having to leave and re-enter and obtain a new Visitor’s Visa.

16. In total, Mr Fayomi was granted 16 Visitor’s Visas between 4 August 1994 and 18 February 1997, which, together with the extensions, enabled him to stay in Hong Kong for that whole period with the exception of a total of 82 days.

17. On two occasions between 1994 and 1997 Mr Fayomi attempted to change his immigration status from that of “Visitor” to conditional stay in the category “Employment”. Both applications were refused, and Mr Fayomi took no steps to challenge those decisions.

18. On 4 August 1996, in Hong Kong, Mr Fayomi married Ms Linda Elizabeth Fancy, a permanent resident of Hong Kong. On 7 August 1996, Mr Fayomi applied to change his immigration status from “Visitor” to conditional stay in the category “Dependent” of his wife. Following a number of extensions of his Visitor status, that application was approved on 4 April 1997, and he was thereafter permitted to remain in Hong Kong as a Dependent. He was issued with a Hong Kong identity card, carrying a “C” code, that is for conditional stay in Hong Kong. Although it is not clear from the papers, it is likely that the condition of stay was that Mr Fayomi remained a dependent of his wife.

19. His conditional stay in Hong Kong was extended on a number of occasions, ultimately to 1 April 2003.

20. On 21 January 2003, Mr Fayomi applied to remain in Hong Kong unconditionally. On 7 May 2003 a letter was sent to Mr Fayomi inviting him to attend the Extension Section of the Department of Immigration, and to bring with him his Hong Kong identity card, his passport and financial proof in relation to himself and his spouse.

21. On 20 May 2003, he attended the Immigration Department, supplying those documents, as a consequence of which his application for unconditional stay was then approved. Having been granted unconditional stay, Mr Fayomi was now entitled to an identity card bearing the code “U”, signifying his residential status as being unconditional.

22. The bureaucratic procedures of the Department of Immigration required that Mr Fayomi thereupon complete a form known as “ROP 1”, entitled: “APPLICATION FOR A PERMANENT IDENTITY CARD/AN IDENTITY CARD BY A PERSON OF THE AGE OF 18 YEARS OR OVER - REGISTRATION OF PERSONS ORDINANCE CAP 177.”

23. Although that form was completed at the request of officers of the Immigration Department, it is the Commissioner of Registration, discharging his responsibilities under the ROP Ordinance, who deals with the VEPIC procedure, those responsibilities being carried out by persons in the Registration of Persons section of the Immigration Department. Those officers are entitled Registration Officers, as distinct from Immigration Officers.

24. There is a box in the form ROP 1 in which the applicant may answer the question: “Have you been ordinarily resident in the HKSAR for a continuous period of not less than 7 years?”. Mr Fayomi ticked the box for “Yes”.

25. It is accepted by Ms Sit, that the consequence of the decision of the Court of Appeal in Yoothip v Secretary for Security & Commissioner of Registration CACV 276/2006 (unreported, 22 June 2007), is that, by reason of Mr Fayomi having ticked that box, the Commissioner of Registration was obliged to treat that form as a claim by Mr Fayomi for eligibility for permanent resident status. Upon such a claim for eligibility being made, the Registration Officer is obliged to refer the document to the Director of Immigration for verification. It is appropriate to note that the decision in Yoothip was more than four years after Mr Fayomi completed the ROP 1 form.

26. The Registration Officer, in fact, did not make that referral, but instead issued Mr Fayomi with an identity card bearing the code “U”. The reason why the referral was not made was not explained by the evidence. Instead, the Immigration Officers who made affidavits asserted that as at 20 May 2003, Mr Fayomi had not been ordinarily resident in Hong Kong for seven years. Consequently, they said, had had the application being referred for verification, it would not have been verified.

27. On 15 September 2004, Mr Fayomi was arrested by the Hong Kong Police, and on 18 September 2004 was remanded in custody pending trial. On 12 April 2005, he was convicted on three counts of dealing with property known or believed to represent the proceeds of an indictable offence. He was sentenced to a term of imprisonment for three years and three months. Although he had lodged an appeal against the conviction, that was subsequently withdrawn. An appeal against the sentence was dismissed on 22 December 2005.

28. On 14 December 2005, the Immigration Department served on Mr Fayomi a Notice of Consideration of Deportation. That notice informed Mr Fayomi that if he wished to make any representations on the proposed deportation order he should do so within 14 days of the receipt of that notice.

29. On 24 December 2005, Mr Fayomi’s wife sent a letter by fax to the Immigration Department objecting to the proposed deportation order. The letter stated that Mr Fayomi had unconditional stay, that he was eligible to apply for permanent residence, but that he had been too busy to do so. No further submissions were made.

30. On 20 March 2007, seven days prior to his expected date of discharge, Mr Fayomi was interviewed by the Immigration Department in prison. He was informed that the Immigration Department had not received any representations from him other than the letter from his wife referred to above. Mr Fayomi requested that the Immigration Department should make contact with a particular friend and also asserted that he should have the right of abode in Hong Kong. He then produced to the Immigration Department written submissions setting out reasons objecting to the proposed deportation.

31. An Immigration Officer subsequently contacted Mr Fayomi’s friend, subsequent to which solicitors for Mr Fayomi were instructed. On 27 March 2007, the solicitors wrote to Immigration Department making submissions against the deportation order.

32. That letter was referred to the Deportation Section who, on 10 April 2007, wrote to the solicitors advising:

(i)  Mr Fayomi had never applied for verification of permanent identity card;
(ii)  he was not the holder of a permanent identity card;
(iii)  he was not a Hong Kong permanent resident; and
(iv)  he had no claim on Hong Kong.

33. On the same day the Immigration Department received an application for verification of eligibility for permanent identity card signed by Mr Fayomi on 29 March 2007. Because, as a matter of law, periods of imprisonment cannot count towards the relevant period of seven years, (see Fateh Muhammad), the fact that Mr Fayomi had been in custody from 18 September 2004 to 27 May 2007, meant that inevitably, he was found not to have the appropriate seven years ordinary residence immediately before the application for verification was made. On 9 May 2007, Mr Fayomi was notified of that decision, now the subject of the application for judicial review.

34. On 29 May 2007, Mr Fayomi petitioned the Chief Executive by way of appeal against the refusal of the Registration of Persons Sub-division to verify the permanent identity card application. Petitions have also been lodged in respect of the proposed deportation.

35. A number of submissions were made over a period of time in support of those petitions, and on 14 January 2009, the appeal by way of petition against the refusal to verify the period of seven years continuous residence was refused. No decision has yet been made on the petition against the decision to deport.

The 9 May 2007, decision:

36. Mr Ng was obliged to acknowledge that any application made by Mr Fayomi filed while he was in jail custody, for verification of the status of an ordinary resident of Hong Kong for a period of not less than seven years immediately prior to the application was bound to fail. When a person is in jail custody he is not ordinarily resident in Hong Kong, thus any application made while in jail custody will fail, because the applicant is not ordinarily resident in Hong Kong immediately prior to making the application, (see para 33 above).

37. Consequently, the application for judicial review of the 9 May 2007, decision must fail.

The 20 May 2003, application:

38. Consequently, Mr Ng was forced to rely upon the application for an identity card made by Mr Fayomi on 20 May 2003, containing as it did an inherent request for verification.

39. Ms Sit, correctly in my view, did not seek to contend that Mr Fayomi was not ordinarily resident in Hong Kong after 31 March 1997, the date when he entered Hong Kong and was permitted to remain as a dependent to his wife. But for Mr Fayomi to have seven years ordinary residence in Hong Kong on 20 May 2003, he must have been ordinarily resident in Hong Kong no later than 20 May 1996.

40. Between 4 August 1994, and 29 March 1997, Mr Fayomi was present in Hong Kong from time to time, his presence in Hong Kong being permitted by virtue of a Visitor’s Visa. During that period he entered Hong Kong, for various periods of time, leaving, and subsequently re-entering, on 17 occasions, as described in paragraphs 11-18 above.

41. On 31 March 1997, Mr Fayomi re-entered Hong Kong, initially being granted a Visitor’s Visa, subsequently obtaining a Dependency Visa on 4 April 1997, that right being backdated to 31 March 1997. Ms Sit argued that the earliest date upon which Mr Fayomi could claim to have met the residence requirement was 31 March 1997, and consequently, as at 20 May 2003, the required period of seven years would not be completed until 31 March 2004. As at 20 May 2003, Mr Fayomi was, Ms Sit argued, still a little over 10 months short of the required period.

42. Mr Ng argued that that period between 4 August 1994 and 31 March 1997, should be treated as continuous ordinary residence in Hong Kong, because Mr Fayomi intended to take Hong Kong as his permanent place of residence during that period. Any absence from Hong Kong during that period, Mr Ng argued, was merely a temporary absence that did not break the period of continuous ordinary residence.

43. I reject that argument.

44. On each occasion during that period on which Mr Fayomi left Hong Kong, his Visitor’s Visa automatically terminated simply because he ceased to be a Visitor. Consequently, while event outside Hong Kong, Mr Fayomi had no permission to stay in Hong Kong. On each occasion upon which he re-entered Hong Kong his presentation of his passport to a Immigration Officer constituted a new application for a Visitor’s Visa. As it happened, on each occasion that occurred a new permission to stay in Hong Kong was granted to him.

45. That is plain from the decision in Sun Jie v Registration of Persons Tribunal & Ors FAMV 20/2006, (unreported, CFA, 28 September 2006), per Chan PJ at para 4. In that case the applicant was given permission to remain on the basis of employment, and during the period of his employment had the opportunity to acquire ordinary residence in Hong Kong. Upon his employment being terminated, Mr Sun no longer had permission to remain, that permission being dependent upon the existence of the employment. In exactly the same way, upon the departure of a Visitor, that person then ceasing to be a Visitor in Hong Kong, the permission given by way of a Visitor’s Visa to remain in Hong Kong comes to an end.

46. In those circumstances, notwithstanding any wish Mr Fayomi may have, during his absence, to remain in Hong Kong, or any desire to take Hong Kong as his permanent place of residence, his absence is, to adopt the words of Chan PJ at para 4 in Sun Jie, “not a merely temporary hiatus in a continuous period of ordinary residence”.

47. Mr Ng sought to contend that because the status of a departed visitor is not included in the list of persons who shall not be treated as ordinarily resident in Hong Kong in s 2(4)(a) of the Ordinance, it was open to the court to hold that a temporary departure by a person holding a Visitor’s Visa, with the intention of returning to Hong Kong shortly thereafter by way of a new Visitor’s Visa did not constitute a break in the period of ordinary residence.

48. Again I reject the argument.

49. A person who has a continuing permission to remain in Hong Kong may leave Hong Kong temporarily, but that permission continues to exist. That is recognised by s 4(6) of the Ordinance. A Visitor’s Visa operates quite differently, plainly the permission to remain in Hong Kong ceasing to exist upon the departure of the visa holder. Thus it is simply not necessary to make provision in s 2(4)(a) for the case of Visitor’s.

50. I accordingly conclude that during the period between 4 August 1994 and 31 March 1997, Mr Fayomi was, despite his regular presence from time to time in Hong Kong, as a matter of law, not ordinarily resident in Hong Kong.

The effect of Yoothip:

51. It is clear from Yoothip that Mr Fayomi’s application for an identity card in form ROP 1, made on 20 May 2003, should have been referred to the Commissioner for the VEPIC procedure. But the answer that would inevitably have come back would have been that Mr Fayomi had not been ordinarily resident in Hong Kong for a period of seven years.

52. The case advanced for Mr Fayomi was that had the Director of Immigration properly discharged his duty on 20 May 2003, and referred Mr Fayomi’s application for VEPIC, Mr Fayomi would have learned, upon the refusal of verification, that he was not entitled to claim the period during which he was in Hong Kong under a Visitor’s Visa. It is argued that he would then have known that, at least by 31 March 2004, he would have been arguably ordinarily resident in Hong Kong, notwithstanding any temporary absences, by virtue, first of his dependency visa granted on 4 April 2004 and subsequently by his right of unconditional stay from and after 20 May 2003.

53. Mr Ng argued that had Mr Fayomi known of those circumstances he would have been able between 31 March 2004, and his arrest on 15 September 2004, to have made application for a permanent ID card, claiming seven years ordinary residence, which would have been likely to have been verified. Mr Ng argued that by breaching his duty to refer the 20 May 2003 application for verification Mr Fayomi was deprived of the opportunity to make an application during the period of eligibility.

54. Ms Sit contended, relying on the decision in Raquiza v Director of Immigration, CACV 272/2006, unreported 3 August 2007, that that because, as at 20 May 2003, Mr Fayomi had not been ordinarily resident in Hong Kong for a period of seven years, he had no rights, and that consequently any argument as to an obligation on the part of the Director of Immigration to advise Mr Fayomi of his rights could not arise.

55. The court in Raquiza did not consider the consequences of the decision in Yoothip. That is almost certainly because the decision challenged was a decision by the Director of Immigration to refuse to grant an extension of stay on a dependency visa. In such circumstances an issue of verification does not arise.

56. The situation of Mr Fayomi is different. Upon completing the ROP 1 form, and marking the box claiming ordinary residence in Hong Kong for a continuous period of not less than seven years, a duty arose upon the Director to refer the form for VEPIC. It is quite clear that in failing to undertake verification, the Director was in breach of that duty.

57. In Naseer Ahmed v Director of Immigration & Anor, HCAL 76/2008, (unreported, 5 December 2008), the court explained that the duty of verification is a duty owed by the Commissioner. Ms Sit originally argued in her skeleton that the Commissioner was not a party to the proceedings, and that the Director, who was a party to the proceedings owed no duty to Mr Fayomi. Upon my informing Ms Sit that, particularly bearing in mind that the Commissioner and the Director are the same person, I would not hesitate to join the Commissioner into the proceedings, even at that late stage, she took instructions and informed me that she would not oppose such a joinder. That was a sensible position to take. In so far as is necessary for the resolution of these proceedings therefore, there will be an order that the Commissioner of Registration be joined as a party to the proceedings.

58. I am satisfied that the present case is distinguishable from Raquiza, and in the circumstances of this case a duty arose on the Director to refer the application for VEPIC, and on the Commissioner, to notify Mr Fayomi that his claim that he was ordinary resident in Hong Kong for a period of not less than seven years had not been verified.

The consequence of the breach of duty:

59. Mr Ng argued that the consequence of the breach of duty on the part of the Commissioner to notify Mr Fayomi that his claim was not verified was that Mr Fayomi was consequently unaware of his right to apply for permanent residency between 4 April 2004 and 15 September 2004, and that accordingly he was deprived of that right.

60. But the argument fails on the evidence. I am satisfied that Mr Fayomi was, all along, aware that his status was merely that of unconditional stay, and that he had not been granted permanent residence.

61. First, in response to the Notice of Intended Deportation, Mr Fayomi’s wife wrote to the Immigration Department on 24 December 2005 saying:

“ (Mr Fayomi) has lived in Hong Kong in excess of the seven years which is required in order to apply for permanent residence. He has unconditional stay and was only too busy to apply for his permanent residence however he is eligible for such.” (sic) (the emphasis is mine)

It is plain from that letter that Mr Fayomi knew that he did not have permanent residence in Hong Kong as a consequence of the 20 May 2003 decision, but that he only had unconditional stay status.

62. Second, in a letter written by Mr Fayomi to the Director, nearly 18 months later, on 20 March 2007, he said:

“As at January 2003 I got the application forms for an unconditional stay and permanent stay in Hong Kong. I got the application forms from immigration department in Wanchai in 2003. But I was busy travelling mostly between HK and mainland China, so effect I submitted only my application for unconditional stay at the time because I thought I can pick up my permanent ID card at any convenient time.” (sic) (the emphasis is mine)

On the same day Mr Fayomi dictated a statement to an Immigration Officer containing an explanation as to why he did not get a permanent identity card. In that statement he acknowledged that in 2003 he was granted unconditional stay in Hong Kong.

63. Mr Fayomi asserted that this letter, and the statement, were dictated by him under the instruction of an Immigration Officer. This assertion, (paragraph 20 of his first affidavit, repeated at paragraph 13 of his second affidavit), is wholly incredible. The content of his letter is entirely consistent with the letter written by Mr Fayomi’s wife, and there is no suggestion that that was dictated to her by an Immigration Officer. The assertion by Ms Fancy that her letter was merely an excuse for her husband is equally incredible. Had she, at that time, believed that her husband held permanent residence status, I have no doubt that she would have said so.

64. Further, it is plain that both Mr Fayomi and his wife well knew of the distinction between unconditional stay and permanent residence. Ms Fancy had applied for, and obtained permanent residence prior to 20 May 2004. Consequently it cannot be said that Mr Fayomi’s application for unconditional stay, and his receipt of an identity card that was different to that of his wife, would have been something that would have gone unnoticed by them.

65. In all of those circumstances Mr Fayomi cannot be heard to say that he was unaware of his status. Had he wished to, he had ample opportunity to make application for a permanent identity card during the 16 months prior to his arrest. He did not do so.

66. Consequently, although there may have technically been a breach of duty on the part of the Commissioner, that breach has caused no prejudice at all to Mr Fayomi. That is sufficient to justify a refusal of relief on an application for judicial review.

Delay:

67. The application for judicial review in its original form sought review of a decision made on 9 May 2007, that Mr Fayomi was not eligible for permanent resident status on the ground that he did not meet the residence requirement. That decision was in response to an application made in 2007, for verification of his status by Mr Fayomi at the suggestion of immigration officers.

68. As the application proceeded it became instead an application for judicial review of the decision made on 20 May 2003, rejecting Mr Fayomi’s assertion in the form ROP 1 that he met the residence requirement. The basis of the argument was that at that time Mr Fayomi in fact met the residence requirement.

69. The only explanation offered for the delay was that Mr Fayomi believed that he had been issued with a permanent identity card, and assertion which, for the reasons given above, I have rejected.

70. Leave to bring the proceedings out of time was granted on an ex parte basis, and no application to set that leave aside has been made. Consequently, the order for live to proceed out of time does not fall to be reopened at the substantive hearing on the basis that there is no ground for extending time: see R v Criminal Injuries Board, ex parte A [1999] AC 330 at 341D. But it is open to the court, where there is delay, to refuse to grant relief: see 341F.

71. Although it is not necessary to reach a conclusion on the delay issue, for the sake of completeness I record that were the application for judicial review and application to review the 20 May 2003 decision, the delay is such that relief ought to be refused.

The Deportation decision:

72. Having found that there is no basis to review the decision of the Director, either in respect of the 20 May 2003, decision, or the 9 May 2007 decision, the deportation decision is unimpeachable, Mr Fayomi having no right of abode in Hong Kong.

Conclusion:

73. For the foregoing reasons the application for judicial review must be dismissed. Mr Fayomi must pay the Respondents costs on the application, to be taxed on a party and party basis.

(John Saunders)
Judge of the Court of First Instance
High Court

Mr Ken Ng and Mr Matthew Tse, instructed by Messrs Au-Yeung, Cheng, Ho & Tin, for the Applicant

Ms Eva Sit, instructed by the Department of Justice, for the Respondents

Please refer to CACV6/2010 for the relevant appeal(s) to the Court of Appeal.

ABAYOMI BAMIDELE FAYOMI v. SECRETARY FOR SECURITY AND ANOTHER

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