From Wikipedia, the free encyclopedia Fateh Muhammad v. Commissioner of Registration
Fateh Muhammad v. Commissioner of Registration
Fateh Muhammad v Commissioner of Registration Kong for the seven years immediately preceding his ap-
plication for verification, because under IO 2(4)(b) time
Court Court of Final Appeal, Hong Kong spent in prison is not considered "ordinarily resident".[2]
Full case Fateh Muhammad v. Commissioner of
name Registration and Registration of Persons
Tribunal Legal proceedings
Date decided 2001-07-20
Tribunal and lower courts
Citation(s) [2001] 2 HKLRD 659 Muhammad appealed the Director’s decision to the
Transcript(s) Full text of judgment Registration of Persons Tribunal on 4 August 1998, which
on 29 January 1999 allowed his appeal, ordering that a
Judge(s) Andrew Li, Kemal Bokhary, Patrick Chan,
permanent identity card be issued to him. In doing so,
sitting Gerald Nazareth, and Anthony Mason
it stated that IO Schedule 1 Paragraph 1(4)(b), which im-
Case history posed the requirement that the seven years of ordinary
Prior Commissioner for Registration v. Registration of
residence qualifying a non-Chinese national to apply for
action(s) Persons Tribunal and Fateh Muhammad (1999 permanent residence immediately precede the applica-
HCAL No. 40) tion, contravened the Basic Law and should be struck
Commissioner for Registration v. Registration of down.[Note 1] The Director withdrew the deportation or-
Persons Tribunal and Fateh Muhammad (CACV der on 26 February 1999.[3]
272/99)
However, the Director also appealed to the Court of
First Instance. There, the Tribunal’s finding earned them
Fateh Muhammad v. Commissioner of Registration and Regis-
a rebuke from Justice Brian Keith, who reminded the Tri-
tration of Persons Tribunal was a 2001 case in the Court
bunal that its role was to address questions of fact and
of Final Appeal, Hong Kong by a Pakistani migrant seek-
not of law.[3] The CFI found the impugned provisions to
ing the right of abode in Hong Kong. The case concerned
be consistent with the Basic Law and made an order of
provisions of the Immigration Ordinance requiring that
certiorari quashing the Registration of Persons Tribunal’s
a non-Chinese national’s seven years of "ordinary resi-
order that Muhammad be issued with a permanent iden-
dence" qualifying him to apply for permanent residence
tity card.[2] Muhammad appealed to the Court of Appeal.
immediately precede his application. The unanimous
Justices Simon Mayo, Robert Ribeiro, and Anthony
opinion, written by Justice Kemal Bokhary (himself of
Rogers on 19 April 2000 upheld the CFI’s ruling.[2] The CA
Pakistani background), ruled that those provisions were
applied a purposive approach to interpreting BL 24(2)(4),
not inconsistent with the Hong Kong Basic Law. The rul-
and concluded that the three requirements therein for
ing in the case temporarily disqualified the appellant
a non-Chinese national to become a permanent resident
from applying for permanent residency, though he was
(entered Hong Kong with a valid travel document; has or-
expected to qualify again a few years later.
dinarily resided in Hong Kong for a continuous period of
not less than 7 years; and has taken Hong Kong as his
Background place of permanent residence) should be completed con-
currently.[2]
Fateh Muhammad was a Pakistani migrant who had
resided in Hong Kong since 1962.[1] He was sentenced to
four years in prison in 1993 for conspiracy to utter forged
Court of Final Appeal
banknotes. The Secretary for Security ordered that he be Muhammad appealed again to the Court of Final Appeal.
deported from Hong Kong upon completion of his sen- His case was one of three CFA cases relating to the right
tence. Muhammad applied to the Director of Immigra- of abode that year said to form part of a "constitutional
tion for verification of eligibility for a Hong Kong perma- crisis" in Hong Kong, the other two being Director of Immi-
nent identity card; effectively, he sought to assert that gration v. Chong Fung Yuen (which ruled that Chinese na-
he had the right of abode in Hong Kong and thus under tionals born in Hong Kong were entitled to the right of
Immigration Ordinance 2A(1)(c) could not be deported. abode regardless of the Hong Kong immigration status of
The Director refused verification on the grounds that their parents), and Tam Nga Yin v. Director of Immigration
Muhammad had not been "ordinarily resident" in Hong (which ruled that mainland-born children adopted by
1
From Wikipedia, the free encyclopedia Fateh Muhammad v. Commissioner of Registration
Hong Kong parents did not thus gain the right of
abode).[4] The CFA delayed its ruling on Chong, which had
References
been heard in March, until Fateh Muhammad and Tam Nga [1] ^ "Hong Kong SAR High Court -- Court of Appeal:
Yin had also been heard.[5] Commissioner of Registration v. Registration of
On 20 July 2001 the CFA also ruled against Muham- Persons Tribunal and Fateh Muhammad
mad.[2] The CFA upheld the CA’s observation that were (permanent residency application by prisoner)",
the Basic Law’s requirements for permanent residence International Law In Brief (American Society of
not required to be completed concurrently, the law International Law), 2000-07-15,
would confer the right of abode on people with tenuous http://www.asil.org/ilib0318.cfm#02, retrieved
connections to Hong Kong and who had not resided in 2011-10-06
Hong Kong for some time. The CFA also rejected the argu- [2] ^ "Judgment Update: Fateh Muhammad v
ment that the Immigration Ordinance’s imposition of ad- Commissioner of Registration & The Registration of
ditional requirements on the timing of the period of sev- Persons Tribunal", Basic Law Bulletin (2): 21=23,
en years’ "ordinary residence" was inconsistent with the 2001, http://www.doj.gov.hk/eng/public/
Basic Law, instead stating that the Basic Law was silent on basiclaw/basic2-24.pdf, retrieved 2011-10-06
the matter and that it was "legitimate for the Ordinance [3] ^ CFI citation goes here
to fill the gap".[1] [4] Fokstuen, Anne R. (2003), "The ’Right of Abode’
Cases: Hong Kong’s Constitutional Crisis", Hastings
International Comparative Law Review 26 (265),
Reactions http://heinonline.org/HOL/
Counsel for Muhammad attempted to argue that the rel- LandingPage?collection=journals&handle=hein.journals/
evant provisions of the Immigration Ordinance discrim- hasint26&div=14&id=&page=, retrieved 2011-10-04
inated against people not of Chinese origin; this was un- [5] "Introductory Commentary", Basic Law Bulletin (2),
successful.[6] The Hong Kong Human Rights Monitor in a 2001, http://www.doj.gov.hk/eng/public/
press release accused the court of racism in interpreting basiclaw/basic2-21.pdf, retrieved 2011-10-04
the Basic Law more restrictively in Muhammad as com- [6] Law, Anthony M. W. (December 2004), "Racial
pared to Ng Ka Ling v. Director of Immigration.[7] Acting Sec- Discrimination and the Right to Equality", Hong
retary for Security Timothy Tong was quoted as stating Kong Lawyer, http://www.hk-lawyer.com/
that he welcomed the ruling.[8] InnerPages_features/0/2054/2004/12
[7] Muhammad has the wrong blood for permanent
Notes residence in Hong Kong, 2000-04-21,
http://www.hkhrm.org.hk/english/reports/press/
[1] The Tribunal did not address IO 2(4)(b); the Court pr000421.html, retrieved 2011-10-06
of First Instance in Vallejos v. Commissioner of [8] "HK Government Respects Court’s Right of Abode
Registration would strike down part of IO 2(4) as Ruling", People’s Daily, 2001-07-21,
inconsistent with the Basic Law in 2011. That http://english.people.com.cn/200107/21/
decision is under appeal. eng20010721_75525.html, retrieved 2011-10-06
Retrieved from "http://en.wikipedia.org/w/in-
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Categories:
• 2001 in case law
• 2001 in Hong Kong
• Basic Law of Hong Kong
• Immigration case law
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