Fateh Muhammad v. Commissioner of Registration
Encyclopedia
Fateh Muhammad v. Commissioner of Registration and Registration of Persons Tribunal was a 2001 case in the Court of Final Appeal, Hong Kong
by a Pakistani migrant
seeking the right of abode in Hong Kong. The case concerned provisions of the Immigration Ordinance requiring that a non-Chinese national
's seven years of "ordinary residence" qualifying him to apply for permanent residence immediately precede his application. The unanimous opinion, written by Justice Kemal Bokhary
(himself of Pakistani background), ruled that those provisions were not inconsistent with the Hong Kong Basic Law
. The ruling in the case temporarily disqualified the appellant from applying for permanent residency, though he was expected to qualify again a few years later.
who had resided in Hong Kong since 1962. He was sentenced to four years in prison in 1993 for conspiracy to utter
forged banknotes
. The Secretary for Security
ordered that he be deported from Hong Kong upon completion of his sentence. Muhammad applied to the Director of Immigration
for verification of eligibility for a Hong Kong permanent identity card; effectively, he sought to assert that he had the right of abode in Hong Kong and thus under Immigration Ordinance 2A(1)(c) could not be deported. The Director refused verification on the grounds that Muhammad had not been "ordinarily resident" in Hong Kong for the seven years immediately preceding his application for verification, because under IO 2(4)(b) time spent in prison is not considered "ordinarily resident".
would strike down part of IO 2(4) as inconsistent with the Basic Law in 2011. That decision is under appeal. The Director withdrew the deportation order on 26 February 1999.
However, the Director also appealed to the Court of First Instance
. There, the Tribunal's finding earned them a rebuke from Justice Brian Keith, who reminded the Tribunal that its role was to address questions of fact and not of law. The CFI found the impugned provisions to be consistent with the Basic Law and made an order of certiorari
quashing the Registration of Persons Tribunal's order that Muhammad be issued with a permanent identity card. Muhammad appealed to the Court of Appeal
. Justices Simon Mayo, Robert Ribeiro
, and Anthony Rogers on 19 April 2000 upheld the CFI's ruling. The CA applied a purposive
approach to interpreting BL 24(2)(4), and concluded that the three requirements therein for a non-Chinese national to become a permanent resident (entered Hong Kong with a valid travel document; has ordinarily resided in Hong Kong for a continuous period of not less than 7 years; and has taken Hong Kong as his place of permanent residence) should be completed concurrently.
(which ruled that Chinese nationals born in Hong Kong were entitled to the right of abode regardless of the Hong Kong immigration status of their parents), and Tam Nga Yin v. Director of Immigration (which ruled that mainland-born children adopted by Hong Kong parents did not thus gain the right of abode). The CFA delayed its ruling on Chong, which had been heard in March, until Fateh Muhammad and Tam Nga Yin had also been heard.
On 20 July 2001 the CFA also ruled against Muhammad. The CFA upheld the CA's observation that were the Basic Law's requirements for permanent residence not required to be completed concurrently, the law would confer the right of abode on people with tenuous connections to Hong Kong and who had not resided in Hong Kong for some time. The CFA also rejected the argument that the Immigration Ordinance's imposition of additional requirements on the timing of the period of seven years' "ordinary residence" was inconsistent with the Basic Law, instead stating that the Basic Law was silent on the matter and that it was "legitimate for the Ordinance to fill the gap".
in a press release accused the court of racism in interpreting the Basic Law more restrictively in Muhammad as compared to Ng Ka Ling v. Director of Immigration. Acting Secretary for Security
Timothy Tong
was quoted as stating that he welcomed the ruling.
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
by a Pakistani migrant
Pakistanis in Hong Kong
Pakistanis are part of the South Asian minority population in Hong Kong. The 2006 census stated that there were 11,111 Pakistanis in Hong Kong, accounting for 0.2% of the total Hong Kong population. Pakistanis occupied 3.2% of the total number of 342,198 ethnic minority populations...
seeking the right of abode in Hong Kong. The case concerned provisions of the Immigration Ordinance requiring that a non-Chinese national
Nationality Law of the People's Republic of China
The Nationality Law of the People's Republic of China regulates citizenship in the People's Republic of China . Such citizenship is obtained by birth when at least one parent is of Chinese nationality or by naturalization....
's seven years of "ordinary residence" qualifying him to apply for permanent residence immediately precede his application. The unanimous opinion, written by Justice Kemal Bokhary
Kemal Bokhary
Syed Kemal Shah Bokhary is a judge in Hong Kong. , he serves as one of the three Permanent Judges of Hong Kong's Court of Final Appeal.-Early life and family:...
(himself of Pakistani background), ruled that those provisions were not inconsistent with the Hong Kong Basic Law
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
. The ruling in the case temporarily disqualified the appellant from applying for permanent residency, though he was expected to qualify again a few years later.
Background
Fateh Muhammad was a Pakistani migrantPakistanis in Hong Kong
Pakistanis are part of the South Asian minority population in Hong Kong. The 2006 census stated that there were 11,111 Pakistanis in Hong Kong, accounting for 0.2% of the total Hong Kong population. Pakistanis occupied 3.2% of the total number of 342,198 ethnic minority populations...
who had resided in Hong Kong since 1962. He was sentenced to four years in prison in 1993 for conspiracy to utter
Uttering
In the law of countries whose legal systems derive from English common law, uttering is a crime similar to forgery. Uttering and forgery were originally common law offences, both misdemeanours...
forged banknotes
Counterfeit money
Counterfeit money is currency that is produced without the legal sanction of the state or government to resemble some official form of currency closely enough that it may be confused for genuine currency. Producing or using counterfeit money is a form of fraud or forgery. Counterfeiting is probably...
. The Secretary for Security
Secretary for Security
The Secretary for Security is the member of the Hong Kong Government in charge of the Security Bureau, which is responsible for public safety, security, and immigration matters....
ordered that he be deported from Hong Kong upon completion of his sentence. Muhammad applied to the Director of Immigration
Director of Immigration
The Director of Immigration is the head of the Immigration Department of the Hong Kong Government, which is responsible for immigration issues and controlling entry ports into Hong Kong.-List of Directors of Immigration:* J. Moore...
for verification of eligibility for a Hong Kong permanent identity card; effectively, he sought to assert that he had the right of abode in Hong Kong and thus under Immigration Ordinance 2A(1)(c) could not be deported. The Director refused verification on the grounds that Muhammad had not been "ordinarily resident" in Hong Kong for the seven years immediately preceding his application for verification, because under IO 2(4)(b) time spent in prison is not considered "ordinarily resident".
Tribunal and lower courts
Muhammad appealed the Director's decision to the Registration of Persons Tribunal on 4 August 1998, which on 29 January 1999 allowed his appeal, ordering that a permanent identity card be issued to him. In doing so, it stated that IO Schedule 1 Paragraph 1(4)(b), which imposed the requirement that the seven years of ordinary residence qualifying a non-Chinese national to apply for permanent residence immediately precede the application, contravened the Basic Law and should be struck down.The Tribunal did not address IO 2(4)(b); the Court of First Instance in Vallejos v. Commissioner of RegistrationVallejos v. Commissioner of Registration
Vallejos v. Commissioner of Registration is a 2011 court case against the government of Hong Kong by a foreign domestic helper seeking permanent residence and the right of abode in Hong Kong. Because of its subject matter it was commonly referred to in the media as the "maids' residency case"...
would strike down part of IO 2(4) as inconsistent with the Basic Law in 2011. That decision is under appeal. The Director withdrew the deportation order on 26 February 1999.
However, the Director also appealed to the Court of First Instance
Court of First Instance (Hong Kong)
The Court of First Instance is one of two courts in the High Court of Hong Kong. The court has unlimited jurisdiction in both civil and criminal matters...
. There, the Tribunal's finding earned them a rebuke from Justice Brian Keith, who reminded the Tribunal that its role was to address questions of fact and not of law. The CFI found the impugned provisions to be consistent with the Basic Law and made an order of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
quashing the Registration of Persons Tribunal's order that Muhammad be issued with a permanent identity card. Muhammad appealed to the Court of Appeal
Court of Appeal (Hong Kong)
The Court of Appeal deals with appeals on all civil and criminal cases from the Court of First Instance and the District Courts of Hong Kong. It is one of two courts that makes up the High Court of Hong Kong....
. Justices Simon Mayo, Robert Ribeiro
Robert Ribeiro
Robert Ribeiro is a Hong Kong judge and honorary lecturer in law at the University of Hong Kong. He is currently serving one of the three permanent judges for the Court of Final Appeal in Hong Kong.-Early life and education:...
, and Anthony Rogers on 19 April 2000 upheld the CFI's ruling. The CA applied a purposive
Purposive rule
There are two broad approaches to interpretation: the literal approach and the purposive approach. The literal approach is dominant in the UK. The judge looks at the words in the statute and it is rare for him to look outside the Act to find the meaning. In contrast, the Purposive approach looks...
approach to interpreting BL 24(2)(4), and concluded that the three requirements therein for a non-Chinese national to become a permanent resident (entered Hong Kong with a valid travel document; has ordinarily resided in Hong Kong for a continuous period of not less than 7 years; and has taken Hong Kong as his place of permanent residence) should be completed concurrently.
Court of Final Appeal
Muhammad appealed again to the Court of Final Appeal. His case was one of three CFA cases relating to the right of abode that year said to form part of a "constitutional crisis" in Hong Kong, the other two being Director of Immigration v. Chong Fung YuenDirector of Immigration v. Chong Fung Yuen
Director of Immigration v. Chong Fung Yuen was a 2001 case in the Court of Final Appeal, Hong Kong. Chief Justice Andrew Li, in the Court's unanimous opinion, affirmed lower court decisions that Chinese citizens born in Hong Kong enjoyed the right of abode regardless of the Hong Kong immigration...
(which ruled that Chinese nationals born in Hong Kong were entitled to the right of abode regardless of the Hong Kong immigration status of their parents), and Tam Nga Yin v. Director of Immigration (which ruled that mainland-born children adopted by Hong Kong parents did not thus gain the right of abode). The CFA delayed its ruling on Chong, which had been heard in March, until Fateh Muhammad and Tam Nga Yin had also been heard.
On 20 July 2001 the CFA also ruled against Muhammad. The CFA upheld the CA's observation that were the Basic Law's requirements for permanent residence not required to be completed concurrently, the law would confer the right of abode on people with tenuous connections to Hong Kong and who had not resided in Hong Kong for some time. The CFA also rejected the argument that the Immigration Ordinance's imposition of additional requirements on the timing of the period of seven years' "ordinary residence" was inconsistent with the Basic Law, instead stating that the Basic Law was silent on the matter and that it was "legitimate for the Ordinance to fill the gap".
Reactions
Counsel for Muhammad attempted to argue that the relevant provisions of the Immigration Ordinance discriminated against people not of Chinese origin; this was unsuccessful. The Hong Kong Human Rights MonitorHong Kong Human Rights Monitor
Hong Kong Human Rights Monitor is a local non-governmental organization which was established in April 1995. It aims at promoting better human rights protection in Hong Kong in the aspect of legislation and people's everyday life....
in a press release accused the court of racism in interpreting the Basic Law more restrictively in Muhammad as compared to Ng Ka Ling v. Director of Immigration. Acting Secretary for Security
Secretary for Security
The Secretary for Security is the member of the Hong Kong Government in charge of the Security Bureau, which is responsible for public safety, security, and immigration matters....
Timothy Tong
Timothy Tong
Timothy Tong born in 1950, is the current Commissioner, Independent Commission Against Corruption for the Independent Commission Against Corruption of Hong Kong. Prior to that, he was Commissioner of Customs and Excise for the Customs and Excise Department of Hong Kong.Tong studied at Diocesan...
was quoted as stating that he welcomed the ruling.