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Gutierrez Joseph James, a minor, by Gutierrez Josephine B, also known as Gutierrez Josephine Balando, his mother and next friend v Commissioner of Registration & Registration of Persons Tribunal

Gutierrez Joseph James, a minor, by Gutierrez Josephine B, also known as Gutierrez Josephine Balando, his mother and next friend v Commissioner of Registration & Registration of Persons Tribunal

Joseph, now 17, is the son of a Foreign Domestic Worker.  He was born in Hong Kong and has lived his whole life in Hong Kong, save for a few temporary absence.

Gutierrez reconfirmed and clarified the Prem Singh test in relation to Article 24(2)(4) of the Basic Law.  That is, it is not enough to merely show ordinary residence and an intention to continue to be ordinarily resident.  Rather, a person wanting to take Hong Kong as their permanent place of residence must also show that he/she subjectively intends to establish his/her permanent home in Hong Kong and that he /she objectively has taken action to achieve that.

The CFA in Gutierrez, however, left open the question as to whether or not a visitor could build up ordinary residence in Hong Kong notwithstanding numerous visa extensions spanning many years and temporary absences.

We are disappointed in the decision.  Whilst the decision does seem to analysis the subjective and objective nature of taking Hong Kong as one’s permanent place of residence, it does not seem to fully apply this to the facts of Joseph’s case.  We also query to what extent the fact that Joseph is the son of a Foreign Domestic Worker had on the outcome of the case.

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