Abayomi Bamidele Fayomi v Secretary for Security

Court of Appeal
Civil Appeal No 6 of 2010
Stock V-P, Fok, Barma JJA
10 January, 15 April 2013

Permanent residence —incumbent to treat application as one for permanent identity card where asserted by applicant

A Nigerian (“X”), was permitted to enter and remain as a visitor in Hong Kong from August 1994. From 31 March 1997, he had conditional stay status as his wife’s dependant. On 20 May 2003, his application for unconditional stay was approved. As he was entitled to a different identity card to reflect this status, he was given Form ROP1 for a “permanent identity card/an identity card”, on which he answered in the affirmative to the question “Have you been ordinarily resident in the HKSAR for a continuous period of not less than seven years”. X was not told about permanent residence status or a permanent identity card and was given a new identity card marked “U” to denote his unconditional stay status. In April 2005, X was convicted of an offence and sentenced to three years’ imprisonment. On 29 March 2007, while X was in prison, he applied for verification of eligibility for a permanent identity card but this was refused since time behind bars does do not constitute ordinary residence for such purpose. On 22 May 2007, a deportation order was made against him and since this could not be made lawfully against a Hong Kong permanent resident, X brought judicial review proceedings, submitting that had his May 2003 application for an identity card been referred for eligibility for permanent residence status, he would have been advised that his period of residence as a visitor did not constitute ordinary residence. He would then have renewed his application during the period of his eligibility for permanent residence verification. This was dismissed by the lower court, with the judge finding that X, despite being aware all along that he had unconditional stay status, had failed to apply for a permanent identity card. X appealed and sought an order of mandamus requiring the Director to process the ROP1 submitted on 20 May 2003 as an application for permanent residence status and as if made on 31 August 2004, before his arrest.

Held, allowing the appeal, that inter alia:

When he filled up Form ROP1, X had not triggered a requirement for verification of permanent residence status; the application was for either a permanent identity card or for an identity card for a non-permanent resident. Moreover, it did not ask whether the applicant had taken Hong Kong as his place of permanent residence. There might be many reasons why an applicant would not so assert, such as loss of benefits in his home country. It was incumbent upon the registration officer to treat the ROP1 application by a non-Chinese citizen as one for a permanent identity card only where he asserted orally or in writing that that was what he wanted.

Where it was clear that the application was one for a permanent identity card, the duty was to treat it as such and refer it for verification. Where, however, that was not clear, fairness dictated only a duty to enquire, to clarify, which of the identity cards referred to at the heading of the form was sought. 


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