Decision to strip HK chef of residency over fake birth date must be reconsidered, High Court rules

11-Jul-2020 Intellasia | South China Morning Post | 6:02 AM Print This Post

A Hong Kong resident, who lost his right to stay in the city after he told authorities he was actually 10 years younger than he originally claimed, has successfully applied for a judicial review to have that decision reconsidered.

On Thursday, the High Court allowed Mahesh Roy’s application over the Registration of Persons Tribunal’s determination to dismiss his appeal against the decision to invalidate his permanent identity card, and ordered the matter be reconsidered.

Roy, who is originally from West Bengal in India, had applied for the card in May 2010 after renouncing his nationality, following two decades of working as a chef in Hong Kong.

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But at the time he did not know the date of birth stated on the card, June 6, 1960, was not his real birthday.

In 1985, the chef had obtained his first identity document when an employer in Dubai offered him a job as a cook and arranged for him to obtain an Indian passport, despite his lack of birth certificate or other forms of identification.

He signed a number of documents, but said he did not know their contents as he was illiterate.

Roy later used the same passport to enter Hong Kong in 1990, first as a visitor, then on an employment visa, until he was granted unconditional stay in 1997.

It was not until July 2010, when he visited his family in India, that he learned his real date of birth should have been December 24, 1970.

Roy then applied to amend his date of birth and sought a declaration from an Indian court regarding the true date. After obtaining a judgment in January 2015, Roy made another application in Hong Kong and provided the declaration in support of his bid.

But that prompted the Commissioner of Registration’s decision in February 2016 to end Roy’s unconditional stay, on the basis he had obtained permission using “false representation” material to his application.

That was despite Roy’s lawyers explaining he had not intentionally misled the immigration authorities, and had no reason to lie about his age.

They also said Roy might have been confused by the dates as he was only familiar with the Hindu or Saka calendar, popular in India.

The commissioner’s decision was upheld on appeal to the tribunal in May 2019, despite its finding that the date was not a material piece of information, as it concluded Roy “did not believe the 1960 [date of birth] to be true” when he arrived in the city. In an application for judicial review filed last September, Hectar Pun Hei SC argued that the tribunal’s determination was illegal, irrational, and tainted with procedural impropriety, as it had relied on issues unfavourable to his client, without giving him a fair opportunity to respond.

The commissioner finally conceded at the hearing last month, with government lawyers agreeing that the determination could be quashed on the basis of procedural impropriety and should be reconsidered.

Justice Anderson Chow Ka-ming said on Thursday: “The commissioner’s concession… is rightly made.”


Category: Hong Kong

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