Case Summary and Analysis: Fateh Muhammad's Hong Kong Residency Appeal

Pages: 18 (4554 words) Published: September 16, 2013
CFA

Fateh Muhammad v Commissioner of Registration & Another Bokhary PJ

659

A

Fateh Muhammad and Commissioner of Registration & Another

Appellant

Respondents

B

(Court of Final Appeal) (Final Appeal No 24 of 2000 (Civil)) C

Li CJ, Bokhary and Chan PJJ, Nazareth and Sir Anthony Mason NPJJ 21–23 May and 20 July 2001 D

Immigration — permanent residence — ordinary residence requirement — being in prison or training or detention centre did not constitute “ordinary residence” within art.24 — Basic Law art.24 Immigration — permanent residence — persons not of Chinese nationality — under art.24(2)(4), period of ordinary residence must be “immediately before” permanent residence application — Basic Law art.24(2)(4) Words and phrases — “ordinarily resident” [Basic Law art.24(2)(4); Immigration Ordinance (Cap.115) s.2(4)(b), Sched.1 para.1(4)(b)]

E

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In 1998, X, a Pakistani-national, applied for a permanent identity card, claiming that he was a permanent resident under art.24(2)(4) of the Basic Law. Article 24(2)(4) provided “Persons not of Chinese nationality who have … ordinarily resided in Hong Kong for a continuous period of not less than seven years” were permanent residents. X had lived in Hong Kong since the 1960s, but between I 1994–97, had been in prison for non-immigration offences. Seven years had not elapsed since his release from prison. The lower courts held that he was not a permanent resident. X appealed. Held, dismissing the appeal, that: (1) The word “detention” as used in s.2(4)(b) of the Immigration Ordinance (Cap.115) was to be construed as covering only detention in a training or detention centre. (See p.644A–C.)

J

660

HONG KONG LAW REPORTS & DIGEST

[2001] 2 HKLRD

(2) Subject to the possibility that an extremely short period of imprisonment did not interrupt the continuity of residence, being in prison or a training or detention centre pursuant to a criminal conviction which had never been quashed and a sentence or order which had never been set aside, did not constitute “ordinary residence” within art.24. (See pp.664I–665C.) (3) Further, the seven continuous years required by art.24(2)(4) must come immediately before the time when an application for permanent residence was made in reliance on those seven continuous years. (See pp.665D–666G.) (4) Accordingly, s.2(4)(b) and para.1(4)(b) of Sched.1 to the Immigration Ordinance (Cap.115) were not unconstitutional. Section 2(4)(b) provided that imprisonment or detention did not count as ordinary residence. Paragraph 1(4)(b) provided that the seven years’ ordinary and continuous residence for an applicant under art.24(2)(4) must come immediately before the time when the application was made. (See pp.665C, 666G.) (5) Whether or not para.1(5)(b) of Sched.1 to the Immigration Ordinance (Cap.115) was constitutional was left open. X was being permitted to remain in Hong Kong, and might, three years from now, make another application for permanent resident status. Paragraph 1(5)(b) might be relevant to such application because the effect of this provision, if it was constitutional, was that even a person who had achieved seven years’ continuous and ordinary residence could not obtain permanent resident status unless the Director of Immigration exercised his discretion to lift any limit on that person’s stay. (See pp.667E–668B.) Final appeal This was an appeal against a judgment of the Court of Appeal (see [2000] 2 HKLRD 523), dismissing an appeal against a judgment of Keith JA (see [1999] 3 HKLRD 199). Keith JA had allowed the Commissioner of Registration’s application to quash a decision of the Registration of Persons Tribunal. The Tribunal had held that the appellant was a permanent resident. The facts are set out in the judgment. Mr Philip Dykes SC and Mr...
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