RAZWAN AHMED v. REGISTRATION OF PERSONS TRIBUNAL AND OTHERS

RAZWAN AHMED v. REGISTRATION OF PERSONS TRIBUNAL AND OTHERS

s2(4)(a)(ii) of the Immigration Ordinance is an objective statutory rule excluding from 'ordinary residence' any period during which a person remains in Hong Kong in contravention of a condition of stay; it does not require proof of knowledge or culpability; therefore the applicant's period after expiry of lawful stay was not ordinary residence and he failed to establish 7 years' ordinary residence for right of abode; the Tribunal did not act ultra vires in its findings.

Citation
RAZWAN AHMED v. REGISTRATION OF PERSONS TRIBUNAL AND OTHERS
Parties
Applicant: Razwan Ahmed; 1st Respondent: Registration of Persons Tribunal; 2nd Respondent: Commissioner of Registration; 3rd Respondent: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 March 2012
Case Number
HCAL30/2011
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Judgment (court of First Instance)
Outcome
Judicial review dismissed.
Legal Topics
Right of Abode, Ordinary Residence, Overstay, Vitiation of Visa, Statutory Construction of S2(4)(a)(ii)
Source Language
EN
Immigration Law Administrative Law Constitutional Law Family Law Right of Abode Ordinary Residence Overstay Vitiation of Visa +1 more

Case Brief

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Parties

Razwan Ahmed

Applicant

Registration of Persons Tribunal

1st Respondent

Commissioner of Registration

2nd Respondent

Director of Immigration

3rd Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether s2(4)(a)(ii) of the Immigration Ordinance requires proof of culpability or knowledge for a period of stay to be excluded from ordinary residence
  2. 2 Whether the Tribunal erred in law in applying s2(4)(a)(ii) without requiring mens rea
  3. 3 Whether the Tribunal acted ultra vires by failing to take into account relevant material regarding the sponsor's prior marriage

Ratio Decidendi

s2(4)(a)(ii) of the Immigration Ordinance is an objective statutory rule excluding from 'ordinary residence' any period during which a person remains in Hong Kong in contravention of a condition of stay; it does not require proof of knowledge or culpability; therefore the applicant's period after expiry of lawful stay was not ordinary residence and he failed to establish 7 years' ordinary residence for right of abode; the Tribunal did not act ultra vires in its findings.

Court Disposition

Judicial review dismissed.

Orders

  • Judicial review dismissed
  • Order nisi that the applicant pay the costs of the 2nd and 3rd respondents, to be taxed if not agreed