A124-E

IMMIGRATION (AMENDMENT) (NO. 5) ORDINANCE 1997

An Ordinance to amend the Immigration Ordinance.

[1 July 1997]

Enacted by the Provisional Legislative Council.

1.Short title and commencement

    (1) This Ordinance may be cited as the Immigration (Amendment) (NO. 5) Ordinance 1997.

    (2) This Ordinance (other than section 4 in relation to the addition of the new section 2AG and section 5) shall be deemed to have come into operation on 1 July 1997.

2.Interpretation

Section 2(1) of the Immigration Ordinance (Cap. 115) is amended by adding---

" "certificate of entitlement" (居留權證明書) means a
Certificate of Entitlement to the Right of Abode in the Hong Kong Special Administrative Region issued under section 2AB(6)(a) and includes a certified duplicate issued under section 2AC(6)(a);

"HKSAR passport" (特區護照) means a Hong Kong Special
Administrative Region Passport issued by the Director;

"permanent identity card" (永久性居民身分證) has the same
meaning as it has in the Registration of Persons Ordinance
(Cap. 177);

"valid travel document" (有效旅行證件) means---

  1. a passport furnished with a photograph; or

  2. any other document establishing to the satisfaction of an immigration officer or immigration assistant the identity, nationality and domicile or place of permanent residence of the holder of the document, which---

    1. indicates in specific or general terms that it is not invalid for Hong Kong;

    2. indicates that it is still valid according to the laws of the country or territory by or on behalf of which it was issued;

    3. allows its holder to return to the country or territory by or on behalf of which it was issued; and

    4. unless exempted by the Director, bears a visa issued under the authority of the Director and which is valid at the date of arrival of the holder of the passport or document in Hong Kong;".
3. Hong Kong permanent residents enjoy right of abode in Hong Kong

Section 2A(1) is amended by adding ", subject to section 2AA(2)," after "he has".

4.Part added

The following is added---

"PART IB
Provisions relating to permanent residents
under paragraph 2(c) of schedule 1

2AA. Establishing status of permanent resident under paragraph 2(c) of Schedule 1

    (1) A person's status as a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be established by his holding of---
  1. a valid travel document issued to him and of a valid certificate of entitlement also issued to him and affixed to such travel document;

  2. a valid HKSAR passport issued to him; or

  3. a valid permanent identity card issued to him.

(2) A person's right of abode in Hong Kong by virtue of his being a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be exercised upon the establishment of his status as such a permanent resident in accordance with subsection (1) and, accordingly, where his status as such a permanent resident is not so established, he shall, for the purposes of this Ordinance, be regarded as not enjoying the right of abode in Hong Kong. 2AB. Certificate of entitlement

    (1) Any person who---

  1. immediately before 1 July 1997 did not enjoy the right of abode in Hong Kong under this Ordinance as then in force;

  2. is not the holder of a valid HKSAR passport or valid permanent identity card; and

  3. claims to be a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1, may apply to the Director for a certificate of entitlement.

(2) An application under subsection (1)---

  1. shall be made in such manner as the Director may specify by notice in the Gazette;

  2. may be made on behalf of an applicant by his parent, legal guardian or any other person acceptable to the Director and for the purposes of subsection (6)(b)(ii) and (iii) and section 2AD(1) such parent, legal guardian or other person shall be regarded as the applicant.

(3) An application under subsection (1) which is not made in accordance with subsection (2)(a) and accompanied by the prescribed fee, if any, shall not be accepted.

(4) A notice under subsection (2)(a) is not subsidiary legislation.

(5) For the removal of doubt, it is hereby declared that the making of an application under subsection (1) does not give the applicant the right of abode or right to land or remain in Hong Kong pending the decision of the Director on the application.

(6) Upon receipt of an application under subsection (1), the Director acting through an immigration officer authorized by him shall---

  1. where he is satisfied upon such proof specified by the Director that the applicant is a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1, issue a certificate of entitlement to the applicant in the prescribed form and in such manner as the Director may determine;

  2. where he is not satisfied that the applicant is a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1---

    1. refuse the application;

    2. notify the applicant in writing the reason of the refusal; and

    3. inform the applicant the right of appeal to the Tribunal.
2AC. Issue of duplicate
    (1) If a certificate of entitlement issued to a person is lost or destroyed, he may apply to the Director for a certified duplicate of the certificate.

    (2) An application under subsection (1)---

  1. shall be made in such manner as the Director may specify by notice in the Gazette;

  2. may be made on behalf of an applicant by his parent, legal guardian or any other person acceptable to the Director and for the purposes of subsection (6)(b)(ii) and (iii) and section 2AD(2) such parent, legal guardian or other person shall be regarded as the applicant.

(3) An application under subsection (1) which is not made in accordance with subsection (2)(a) and accompanied by the prescribed fee, if any, shall not be accepted.

(4) A notice under subsection (2)(a) is not subsidiary legislation.

(5) For the removal of doubt, it is hereby declared that the making of an application under subsection (1) does not give the applicant the right of abode or right to land or remain in Hong Kong pending the decision of the Director on the application.

(6) Upon receipt of an application under subsection (1), the Director acting through an immigration officer authorized by him shall---

  1. where he is satisfied upon such proof specified by the Director that---

    1. the applicant is a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1;

    2. a certificate of entitlement has been issued to the applicant; and

    3. the certificate of entitlement so issued is lost or destroyed, issue a certified duplicate of that certificate to the applicant in such form and such manner as the Director may determine;

  2. where he is not satisfied in the manner specified in paragraph (a)---

    1. refuse the application;

    2. notify the applicant in writing the reason of the refusal; and

    3. inform the applicant the right of appeal to the Tribunal.

(7) Where a certified duplicate issued to a person is lost or destroyed---

  1. the person may apply to the Director for a further certified duplicate; and

  2. this section shall apply with all necessary modifications in relation to the application for and issue of the further certified duplicate.
2AD. Appeal
    (1) Any applicant for a certificate of entitlement who is aggrieved by a decision of the Director not to issue the certificate may appeal against the decision to the Tribunal in a form specified by the Director within 90 days from the receipt of the notice given under section 2AB(6)(b)(ii).

    (2) Any applicant for a certified duplicate of a certificate of entitlement who is aggrieved by a decision of the Director not to issue the duplicate may appeal against the decision to the Tribunal in a form specified by the Director within 90 days from the receipt of the notice given under section 2AC(6)(b)(ii).

    (3) No appeal shall be lodged under subsection (1) or (2) at any time at which the appellant is in Hong Kong.

    (4) Notwithstanding subsection (1) or (2), the Tribunal may accept an appeal that is not lodged within the time limit prescribed in that subsection.

    (5) On an appeal lodged under subsection (1)---

  1. where the Tribunal determines that on the facts of the case as it finds them the appellant is a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1, it shall allow the appeal;

  2. where the Tribunal determines that on the facts of the case as it finds them the appellant is not a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1, it shall dismiss the appeal.

(6) On an appeal lodged under subsection (2)---

  1. where the Tribunal determines that on the facts of the case as it finds them---

    1. the appellant is a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1;

    2. a certificate of entitlement has been issued to the appellant; and

    3. that certificate is lost or destroyed, it shall allow the appeal;

  2. where the Tribunal determines that on the facts of the case as it finds them---

    1. the appellant is not a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1;

    2. a certificate of entitlement has not been issued to him; or

    3. the certificate of entitlement issued to him, if any, is not lost or destroyed,it shall dismiss the appeal.

    (7) The decision of the Tribunal under subsection (5) or (6) shall be final.

    (8) Where the Tribunal allows an appeal under subsection (5)(a) or (6)(a), the Director shall issue a certificate of entitlement or certified duplicate of a certificate of entitlement, as the case may require, to the appellant in such form and such manner as the Director may determine.

    (9) For the removal of doubt, it is hereby declared that the lodging of an appeal under subsection (1) or (2) does not give the appellant the right of abode or right to land or remain in Hong Kong pending the decision of the Tribunal on the appeal.

    (10) For the purposes of subsections (3), (5), (6), (8) and (9), "appellant" (上訴人) does not include a person making an application on behalf of another person under section 2AB(2)(b) or 2AC(2)(b).

2AE. No judicial review before Tribunal's decision

Where the Director refuses to issue---

  1. a certificate of entitlement under section 2AB(6)(b)(i);

  2. a certified duplicate of a certificate of entitlement under section 2AC(6)(b)(i), no application referred to in section 21K(3) of the Supreme Court Ordinance (Cap. 4) for leave to apply for judicial review under section 21K(1) or (2) of that Ordinance may be made in respect of the refusal unless and until the Tribunal has made a decision under section 2AD(5) or (6), as the case may be, on an appeal lodged in respect of the refusal.
2AF. Invalidation of certificate of entitlement issued to unqualified person

Where---

  1. a certificate of entitlement has been issued to a person; and

  2. the person is not a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1, the certificate of entitlement shall be regarded for all purposes of this Ordinance (other than section 42) as never having been issued.
2AG. Prohibition of making application,
etc. for reward
    (1) Any person who---

  1. demands, seeks or receives or agrees to receive any payment, benefit, advantage or reward directly or indirectly in consideration of---

    1. making an application for a certificate of entitlement under section 2AB or a certified duplicate under section 2AC on behalf of another person under section 2AB(2)(b) or 2AC(2)(b), as the case may be;

    2. giving advice in relation to individual application for a certificate of entitlement; or

  2. offers to make or holds himself out as willing to make an application for a certificate of entitlement on behalf of another person in consideration of any payment, benefit, advantage or reward, shall be guilty of an offence and shall be liable on conviction to a fine of $500,000 and to imprisonment for 2 years.

(2) The fact that the receipt of any payment, benefit, advantage or reward by a person is an offence under subsection (1) shall not prevent the recovery of any such payment, benefit, advantage or reward from any person.

(3) Subsection (1) shall not apply to any solicitor or barrister acting in the course of his practice.".

5. False statements, forgery of documents and use and possession of forged documents

Section 42 is amended---

  1. in subsections (1) and (2), by adding "IB," before "II" wherever it appears;

  2. in subsections (1), (2) and (3), by adding "certificate of entitlement," after "travel document," wherever it appears.
6. Review of decisions of public officers

Section 53(8) is amended by adding---

    "(aa) to non-acceptance of an application under section 2AB(3) or section 2AC(3);

    (ab) to the decision of the Director on an application under section 2AB(6) or 2AC(6);".

7. Determination of appeals
Section 53D is amended---
  1. in subsection (1)(b), by adding ", subject to subsection (3)," before "it shall";

  2. by adding---

      "(3) The Tribunal shall not allow an appeal on the ground that the appellant enjoys the right of abode in Hong Kong by virtue of being a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 unless the appellant's status as such a permanent resident has been established by his holding of---

    1. a valid travel document issued to him and of a valid certificate of entitlement also issued to him and affixed to such travel document;

    2. a valid HKSAR passport issued to him; or

    3. a valid permanent identity card issued to him.

    (4) In any proceedings before the Tribunal, a certificate purporting to be signed by the Director and certifying that a person does not hold a valid certificate of entitlement shall be admitted in evidence without further proof and---

    1. until the contrary is proved it shall be presumed that the certificate was signed by the Director; and

    2. the certificate shall be prima facie evidence of the fact contained in it.".
8. Practice and procedure of Tribunal

Section 53G(1) is amended by adding "2AD or" before "53A".

9. Burden of proving certain matters

Section 64 is amended by adding ", subject to section 2AA(1)," after "shall lie".

Consequential Amendments
Immigration Regulations

10. Schedule amended

Schedule 1 to the Immigration Regulations (Cap. 115 sub. leg.) is amended by adding--- "Form No. 12

".

Registration of Persons Regulations

11. Exclusion of certain persons
from the Ordinance

Regulation 25A(2) of the Registration of Persons Regulations (Cap. 177 sub. leg.) is repealed and the following substituted---

"(2) This regulation applies to---

  1. all persons previously resident in Vietnam who are permitted to remain in Hong Kong as refugees pending their resettlement elsewhere; and

  2. all persons who---

    1. are qualified to apply for a certificate of entitlement under section 2AB of the Immigration Ordinance (Cap. 115);

    2. have not been issued with a certificate of entitlement within the meaning of the Immigration Ordinance (Cap. 115); and

    3. are residing for the time being in the Mainland of China.

    (3) For the purposes of subregulation (2)(b)(iii)---

    1. a person who---

      1. stays in Hong Kong without the authority of the Director of Immigration after landing in Hong Kong unlawfully; and

      2. was ordinarily resident in the Mainland of China immediately before such landing,shall be regarded as residing in the Mainland of China during such stay;

    2. a person who---
      1. has been given permission under section 11 of the Immigration Ordinance (Cap. 115) to land in Hong Kong;

      2. is subject to the conditions of stay specified in regulation 2(1) or (2) of the Immigration Regulations (Cap. 115 sub. leg.) during his stay in Hong Kong after such landing; and

      3. was ordinarily resident in the Mainland of China immediately before such landing, shall be regarded as residing in the Mainland of China during such stay.".