Hong Kong Lawyer

April 2017

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April 2017 • CASES IN BRIEF 案 例 撮 要 CASES IN BRIEF 案 例 撮 要 ADMINISTRATIVE LAW Hudson Timothy George Loh v Director of Immigration [2017] HKEC 126 Court of First Instance Constitutional and Administrative Law List No. 50 of 2015 Anderson Chow J 25 January 2017 Director of Immigration – Hong Kong Special Administrative Region Passports Appeal Board – decisions refusing application for Hong Kong Special Administrative Region passport on basis applicant not Chinese national – judicial review X's parents (M and F), both of Chinese descent, were born in Canada and were Canadian nationals. F and M had resided in Hong Kong since 1995 and 1996 respectively and became Hong Kong permanent residents in 2002 and 2008 respectively. During a temporary stay by F in Canada due to the outbreak of SARS in Hong Kong in 2003, X was born in July 2003 and acquired Canadian nationality at birth. Since September 2003, X had continuously been a resident and settled in Hong Kong. In 2012, X became a Hong Kong permanent resident. In August 2013, M on behalf of X applied for an HKSAR passport. The Director of Immigration (the "Director") rejected the application. The Hong Kong Special Administrative Region Passports Appeal Board (the "Board") dismissed M's appeal and rejected the contention that X was a Chinese national by virtue of para. 2 of the Explanations of Some Questions by the Standing Committee of the National People's Congress Concerning the Implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region (adopted at the Nineteenth Session of the Standing Committee of the Eighth National People's Congress on 15 May 1996) (the "NPC Explanations"), which states that "All Hong Kong Chinese compatriots (香港中國同胞) are Chinese nationals, whether or not they are holders of the 'British Dependent Territories Citizens passport' or 'British Nationals (Overseas) passport'…". Section 3(2)(a) of the Hong Kong Special Administrative Region Passports Ordinance (Cap. 539) provides that the Director shall not issue a HKSAR passport to an applicant unless the applicant has satisfied, inter alia, the condition that he is a "Chinese citizen" as defined in s. 2 as "a person of Chinese nationality under the Nationality Law of the People's Republic of China [PRC Nationality law], as implemented in the [HKSAR] in accordance with [the NPC Explanations] … ." Held, dismissing the application, that para. 2 of the NPC Explanations dealt with the status of the "British Dependent Citizens" or "British Nationals (Overseas)" passports held by "香港中國 同胞 (Hong Kong Chinese compatriots)" and made it clear that such persons shall be regarded as Chinese nationals. To read para. 2 as creating a further class of Chinese nationals consisting of persons falling within the expression "香港中國 同胞 (Hong Kong Chinese compatriots)" would be inconsistent with the clear meaning and effect of para. 1 which exhaustively defined two categories of persons as being Chinese nationals insofar as the implementation of the PRC Nationality Law in the HKSAR was concerned. 行 政 法 Hudson Timothy George Loh v Director of Immigration [2017] HKEC 126 原訟法庭 高院憲法及行政法列表2015年第50號 原訟法庭法官周家明 2017年1月25日 入境事務處處長 — 香港特別行政 區護照上訴委員會 — 決定拒批香 港特別行政區護照申請,理由為 申請人並非中國公民 — 司法覆核 X 的 父 母 親 ( 以 下 分 別 稱 為M 及 F ) 具 有 中 國血統,在加拿大出生,並為加拿大公 民。F及M分別自1995及1996年起在香 港居住,並分別於2002及2008年成為香 港永久性居民。2003年,「沙士」疫症 在香港爆發,F因而前往加拿大暫住,而 X於同年7月出生,並於出生時取得加拿 大國籍。X自2003年9月起在香港連續居 住和定居,並於2012年成為香港永久性 www.hk-lawyer.org 57

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