An application for a permanent resident identity card should be treated as an application for permanent resident status, the Court of Appeal said yesterday.
Mr Justice Peter Cheung Chak-yau yesterday dismissed an appeal by the Secretary for Security against a lower court's decision to require the Immigration Department to review the case of a Thai woman it had tried to deport even though she had already been issued a permanent identity card.
The department had in January 2004 issued a deportation order against Somporn Yoothip, who had recently completed a prison sentence for soliciting and living off the proceeds of prostitution.
Ms Somporn then successfully sought a judicial review of that decision on the basis that she had been living legally in Hong Kong since 1992, was married to a permanent resident, and had been issued with a permanent resident ID card in October 2001.
The card was issued after she filled out an application, answering 'yes' to the question: 'Have you been ordinarily resident in the HKSAR for a continuous period of not less than seven years?' The card was replaced on two separate occasions, in February and July 2002.
Mr Justice Cheung rejected the government's argument that all Ms Somporn had done was apply for an ID card, and that she had made no claim for permanent resident status.
Rather, the court upheld the previous Court of First Instance decision, by Mr Justice Andrew Chung On-tak, that where an application for a permanent ID is made, and it is evident that the applicant is potentially entitled to permanent residence, then the matter should be referred to the Commissioner of Registration for verification of his or her status.
'On this basis it can be said that the act of submission of the [form] can amount to a claim for permanent residence status,' Mr Justice Cheung said. The right of non-Chinese to permanent residency in Hong Kong was protected by the Basic Law and, where the conditions for granting that status were met, the Commissioner was bound to grant it.
Mr Justice Cheung ordered that Ms Somporn's October 2001 application for a permanent identity card be treated as an application for verification of her status.