Hong Kong Special Administrative Region Passports (Appeal Board) Regulation
(Enacting provision omitted—E.R. 4 of 2021)
[7 September 1998] L.N. 305 of 1998
(Format changes—E.R. 4 of 2021)
(Omitted as spent—E.R. 4 of 2021)
In this Regulation, unless the context otherwise requires—
appellant (上訴人) means a person who initiates an appeal under section 10(1) of the Ordinance; Board (委員會) means the Hong Kong Special Administrative Region Passports Appeal Board established by section 3; Board Secretary (委員會秘書) means the person appointed as Secretary to the Board under section 5(1); Chairman (主席) means the person appointed as Chairman of the Board under section 4(1); Deputy Chairman (副主席) means the person appointed as Deputy Chairman of the Board under section 4(1); respondent (答辯人) means the Director of Immigration whose decision has been appealed against and who may be represented by an immigration officer; Secretary (局長) means the Secretary for Security.There shall be a board called the “Hong Kong Special Administrative Region Passports Appeal Board”. (E.R. 4 of 2021)
The functions of the Board are to consider, hear and determine any appeal made to the Board under section 10(1) of the Ordinance.
For the purpose of considering, hearing and determining an appeal, the members of the Board shall comprise—
a person who shall preside, either the Chairman or the Deputy Chairman; and
2 of the persons from the panel referred to in section 4(2) as the Secretary may appoint for that purpose.
The Secretary shall appoint from among persons who are qualified for appointment as District Judges under section 5 of the District Court Ordinance (Cap. 336)—
a Chairman of the Board; and
a Deputy Chairman of the Board.
The Secretary shall appoint a panel of persons whom he considers suitable for appointment as members of the Board.
Subject to subsection (5), a person appointed as Chairman or Deputy Chairman or to the panel of persons, shall be appointed for a term of 3 years but may be reappointed.
An appointment under this section shall be notified in the Gazette.
Any person appointed under this section may resign by notice in writing to the Secretary.
The remuneration and any subsequent revision, if any, of the Chairman, Deputy Chairman and other members of the Board considering, hearing and determining an appeal shall be determined by the Secretary and shall be payable out of the general revenue of Hong Kong.
There shall be a Secretary to the Board who shall be appointed by the Secretary.
The Secretary may give the Board Secretary such directions as he thinks fit for the purposes of this Regulation.
The Chairman may give to the Board Secretary such directions as he thinks fit with respect to the exercise of the Board Secretary’s functions under this Regulation, either generally or in any particular case.
The Board Secretary shall, in the exercise or performance of any functions or duties under this Regulation, comply with any directions given by the Chairman under subsection (3) in addition to complying with directions given by the Secretary under subsection (2).
If, for any period, the Chairman is precluded by absence from Hong Kong or any other cause from exercising his functions, the Deputy Chairman shall act on behalf of the Chairman and as such to exercise and perform all the functions of the Chairman during that period.
If the term of appointment of the Chairman or the Deputy Chairman or of any person appointed by the Secretary under section 4(2) expires during the hearing of an appeal, the Chairman or the Deputy Chairman or such person may continue to hear the appeal until the appeal is determined.
The Board shall hear an appeal regardless of whether—
the appeal is lodged in or from outside Hong Kong; or
the disputed decision was made with regard to an application submitted in or from outside Hong Kong.
Where the Board, upon an examination of a written notice of appeal received under section 9(2) is satisfied that the facts or matters on which the appellant is seeking to rely—
would not entitle the appellant to succeed in the appeal; or
are the same or substantially the same facts or matters on which the appellant sought to rely on in an unsuccessful appeal under section 2AD(1) or 53A(1)(aa) of the Immigration Ordinance (Cap. 115) or section 3D(1) of the Registration of Persons Ordinance (Cap. 177),
the Board may dismiss the appeal without a hearing and shall cause written notice of such dismissal to be given or sent by post to the appellant.
In determining whether an appeal is to be dismissed without a hearing under subsection (2), the opinions of the majority of members of the Board, including the Chairman or the Deputy Chairman if he is presiding, shall prevail.
The decision of the Board under subsection (2) shall be final.
The Board shall deal with an appeal as expeditiously as is practicable, and for that purpose may sit at any time.
An appeal to the Board shall be made by written notice setting forth the grounds of appeal and the facts relied on. The notice of appeal may be in such form as the Chairman may accept.
The appellant shall send or deliver the notice of appeal to the Board Secretary within 90 days after the date on which the disputed decision was given to or served upon the appellant or within such longer period as the Chairman, on application, may allow.
The Board Secretary shall acknowledge the receipt of the notice of appeal and will inform the appellant or his representative of any further steps which the appellant shall take to enable the Board to decide the appeal.
The Board Secretary shall serve a copy of a notice of appeal lodged with him under section 9 on the respondent within 14 days after the notice of appeal is so lodged.
The respondent shall, as soon as practicable after notice of appeal is served under section 10, cause—
a written summary of the facts of the case and of the reasons for the decision appealed against to be prepared and to be referred to the Board; and
a copy thereof to be given to the appellant.
It shall not be necessary for the respondent to comply with subsection (1) if he is of the opinion that it is not practicable to do so having regard to the time available before the hearing of the appeal, but in any such case an oral statement of the facts of the case and of the reasons for the decision appealed against shall be given at the hearing of the appeal.
Where notice of appeal is lodged, the Board Secretary shall, subject to subsection (2), fix the date, time and place of the hearing of the appeal so as to enable the hearing to commence as soon as is reasonably practicable and shall, not less than 28 days before the date so fixed, serve on the appellant and the respondent notice of the date, time and place in such form as the Chairman may determine.
For the purposes of an appeal, the Board may determine the appeal without an oral hearing on the basis of written submissions on oath or affirmation only.
The Board may consider any matter which appears to it to be relevant to grounds of any appeal permitted by the Ordinance notwithstanding the omission of any reference to such matter in the notice of appeal, and may receive and consider any evidence which appears to it to be relevant to the issues before it notwithstanding that the evidence would not be admissible in a court of law.
The appellant and the respondent may appear and be present at the hearing of the appeal and may make representations or be represented either by a barrister or a solicitor or, with the approval of the Chairman or the Deputy Chairman if he is presiding at the hearing, by any other person authorized by the appellant or the respondent in writing. The respondent may be represented by a legal officer within the meaning of the Legal Officers Ordinance (Cap. 87).
The Board shall consider any written representations on oath or affirmation submitted by the appellant.
Where the appellant is a minor, or is prevented by mental or physical infirmity from acting on his own behalf, the appeal may, subject to the conditions imposed by the Chairman, be brought by a parent or guardian, or by a person appointed by the Chairman.
The Board may, on the application of an appellant or of the respondent, or on its own motion, require any person to attend as a witness at the hearing of an appeal at such time and place as may be specified, and at the hearing to answer any questions, to give evidence or produce any documents in that person’s possession, custody or power which may relate to any issue in the appeal.
Notwithstanding subsection (1), no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce in proceedings in a court of law.
Nothing in this subsection shall entitle any person to refuse to give any evidence or to produce any document on the ground only that such evidence or document would not be admissible in a court of law and that accordingly he could not be compelled to give or produce it.
The Board may require any witness to give evidence on oath or affirmation.
The Board may receive and consider any evidence by way of written statements on oath or affirmation.
The Board may allow in respect of a witness who attends at the hearing of an appeal to give evidence (including professional or expert evidence) a professional witness allowance, expert witness allowance or loss allowance, as the case may be, not exceeding the professional witness allowance, expert witness allowance or loss allowance that a magistrate may allow under the Criminal Procedure (Witnesses’ Allowances) Rules (Cap. 221 sub. leg. B) in respect of a witness who attends to give evidence in criminal proceedings. (E.R. 4 of 2021)
Any sum allowed under paragraph (a) shall cease to be payable unless claimed within 3 months from the date on which it was allowed.
Subject to subsection (2), an appeal shall be heard in private.
The Chairman, or the Deputy Chairman if he is presiding, may, if he thinks proper, permit any person to be present at the hearing.
The appellant may abandon the whole or any part of the appeal by notice in writing lodged with the Board Secretary.
When lodging a notice under subsection (1), the appellant shall at the same time serve a copy of such notice on the respondent.
If on the day and time fixed for the hearing of the appeal, the appellant fails to attend the hearing or fails to make representations either in person or by a barrister or a solicitor or by some other authorized person, the Board may—
if satisfied that the appellant’s failure to attend was due to sickness or any other reasonable cause, postpone or adjourn the hearing for such period as it thinks fit;
proceed to hear the appeal; or
by order dismiss the appeal.
Where the appeal is dismissed by the Board under subsection (1)(c) the appellant may, within 28 days after the making of the order for dismissal, by notice in writing lodged with the Board Secretary, apply to the Board to review the order and the Board may, if satisfied that the appellant’s failure to attend the hearing was due to sickness or any other reasonable cause, set aside the order for dismissal.
When lodging a notice under subsection (2), the appellant shall at the same time serve a copy of such notice on the respondent.
The hearing of an appeal to the Board may be conducted in the English or Chinese language or both as the Board thinks fit.
The Board shall keep a summary or record of proceedings in every appeal which comes before it in such form as the Chairman may determine.
Every question before the Board, except a question of law, shall be determined by the opinions of the majority of members hearing the appeal, including the Chairman or the Deputy Chairman if he is presiding at the hearing.
Question of law shall be determined by the Chairman or the Deputy Chairman if he is presiding at the hearing.
The Board hearing an appeal may by order—
confirm the decision under appeal;
dismiss the appeal; or
direct the respondent to reverse, vary or substitute the decision under appeal.
The Board shall give reasons in writing for its decisions, and those reasons shall include its findings on material questions of fact and a summary of the evidence or other material on which those findings were based.
The decision of the Board on question of fact under this Regulation shall be final.
The Board Secretary shall serve a copy of the Board’s decision and of the reasons for its decisions on the appellant and the respondent.
A document purporting to be a copy of a decision or order of the Board and to be certified by the Chairman or the Deputy Chairman who presided at the hearing to be a true copy of the decision or order is admissible in any proceedings as evidence of the decision or order.
Subject to this Regulation, the Board may determine its own procedure for the purposes of considering, hearing and determining an appeal.
An appeal may be made under this Regulation with respect to any decision made by the Director of Immigration under section 3(1), 4(2), 5(1) or 9 of the Ordinance before the commencement* of this Regulation, provided that the appeal is lodged within 90 days from the commencement of this Regulation, or within such longer period as the Chairman, on application, may allow.