Gutierrez Joseph James v Commissioner of Registration

Court of Appeal
Civil Appeal No 22 of 2012
Stock V-P, Fok and Barma JJA
7 May, 7 June 2013

Permanent residence — child born in Hong Kong to foreign domestic helper-mother

A Philippine foreign domestic helper (“M”) had worked in Hong Kong since 1991. Her son (“X”) was born in Hong Kong in 1996. X lived here with M wherever she resided for the purpose of her employment with permission to remain as a visitor. In December 2006, when M was with her seventh employer, she applied for Verification of Eligibility for a Permanent Identity Card (“VEPIC”) for herself and X. The Commissioner of Registration (the “Commissioner”) and the Registration of Persons Tribunal (the “Tribunal”) rejected the applications and appeals. 

M and X’s applications for leave to apply for judicial review were dismissed, with the judge then holding that M had not taken any concrete steps on X’s behalf to satisfy the permanence requirement.

X now appealed arguing that: (a) the Tribunal erred in concluding that because M had not established the ordinary residence and permanence requirement, X could not establish either condition precedent; and (b) three short absences from Hong Kong in the seven years before the VEPIC application should not be seen as breaking continuous ordinary residence.

Held, dismissing the appeal, that, inter alia:

While the vast majority of cases would see a child following the parent’s place of residence and plans, in rare cases, compelling circumstances could lead to a parent and child having different permanent homes. Where a custodian parent asserted that, despite being unable to establish Hong Kong as his or her permanent home, he or she had made Hong Kong the child’s sole permanent residence, the relevant immigration body was duty bound to decide whether the parent had indeed done so.

Here, the Tribunal did not ask whether M had shown that, whatever her own position and future, she had secured Hong Kong as X’s sole place of permanent residence. Given its rigid approach, the Tribunal had misdirected itself.

But M had come nowhere near establishing that X, through her, had taken Hong Kong as his permanent place of residence. Also, Section 2(6) of the Ordinance presupposed that the person who was temporarily absent was a Hong Kong resident who had permission to reside here during that absence. X however, was a mere visitor, and any permission to enter Hong Kong expired at the end of the stipulated period or on his departure if earlier.