GUTIERREZ JOSEPHINE B. v. COMMISSIONER OF REGISTRATION AND ANOTHER

GUTIERREZ JOSEPHINE B. v. COMMISSIONER OF REGISTRATION AND ANOTHER

The Tribunal and the court held the mother failed the permanence requirement because she did not demonstrate objective concrete steps directed to making Hong Kong her sole permanent residence prior to the VEPIC application; the child's entitlement must be assessed by reference to the primary carer (the mother) and accordingly the child also failed permanence; gaps in the child's presence triggered s.11(10) so permissions expired and broke the required seven‑year continuous ordinary residence; applying the enhanced Wednesbury standard the court found no irrationality warranting intervention and dismissed both judicial review applications.

Citation
GUTIERREZ JOSEPHINE B. v. COMMISSIONER OF REGISTRATION AND ANOTHER
Parties
Applicant (mother): GUTIERREZ JOSEPHINE B; Applicant (minor): GUTIERREZ JOSEPH JAMES; 1st Respondent: COMMISSIONER OF REGISTRATION; 2nd Respondent: REGISTRATION OF PERSONS TRIBUNAL
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 November 2011
Case Number
HCAL136/2010
Procedural Posture
Judicial Review (constitutional and Administrative/immigration) / Judgment (court of First Instance)
Outcome
Both applications for judicial review are dismissed
Legal Topics
Ordinary Residence, Permanence Requirement, Right of Abode, VEPIC (verification for Eligibility to Permanent Identity Card), Statutory Effect of S.11(10) Immigration Ordinance, Judicial Review Standards (wednesbury/enhanced)
Source Language
EN
Immigration Law Constitutional Law Administrative Law Human Rights Law Family Law Ordinary Residence Permanence Requirement Right of Abode +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 19 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

GUTIERREZ JOSEPHINE B

Applicant (mother)

GUTIERREZ JOSEPH JAMES

Applicant (minor)

COMMISSIONER OF REGISTRATION

1st Respondent

REGISTRATION OF PERSONS TRIBUNAL

2nd Respondent

Procedural Posture

Judicial Review (constitutional and Administrative/immigration) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the mother satisfied the seven‑year ordinary residence requirement
  2. 2 Whether the mother satisfied the permanence requirement (subjective intent and objective concrete steps)
  3. 3 Whether the minor's residence and permanence should be assessed by reference to the mother's intention and conduct

Ratio Decidendi

The Tribunal and the court held the mother failed the permanence requirement because she did not demonstrate objective concrete steps directed to making Hong Kong her sole permanent residence prior to the VEPIC application; the child's entitlement must be assessed by reference to the primary carer (the mother) and accordingly the child also failed permanence; gaps in the child's presence triggered s.11(10) so permissions expired and broke the required seven‑year continuous ordinary residence; applying the enhanced Wednesbury standard the court found no irrationality warranting intervention and dismissed both judicial review applications.

Court Disposition

Both applications for judicial review are dismissed

Orders

  • Both applications for judicial review are dismissed with costs to the respondents, such costs to be taxed if not agreed