CHAN MEI YEE v. DIRECTOR OF IMMIGRATION

HCAL 77/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 77 OF 1999

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D E C I S I O N

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1. Madam 陳美儀Chan Mei Yee (transliteration) asks for leave to apply for judicial review.

2. Madam Chan is a resident in the mainland. She married her husband in 1992. Her husband is a Hong Kong permanent resident. Madam Chan gave birth to a daughter in Hong Kong in 1992. The daughter is also a Hong Kong permanent resident. Madam Chan says that her daughter suffers from seizures and she has to be in Hong Kong to look after the daughter.

3. Madam Chan does not have a right of abode in Hong Kong. She came to Hong Kong as a tourist. On 3rd March 1999, the Immigration Department issued a removal order against her. The Immigration Appeal Tribunal turned down her appeal on 12th March 1999.

4. I will grant leave to Madam Chan to apply for judicial review for the following reasons :

(1) Article 23 of the International Covenant of Civil and Political Rights ("ICCPR") as applied to Hong Kong by the Basic Law provides that :

The family is the natural and fundamental group unit of society and is entitled to be protected by society and the State.

(2) Relevant articles under the Convention on the Rights of Children ("the Convention") provide that :

Article 2 : States parties shall respect and ensure the rights in the Convention to each child without discrimination.

Article 3 : In all actions concerning children undertaken by administrative authorities, the best interest of the child shall be the primary consideration.

Article 9 : States parties shall ensure that a child shall not be separated from his parents against their will, except when the authorities determine, in accordance with applicable law and procedure, that such separation is necessary for the best interests of the child.

Article 10 : States parties should deal with the entry by a parent, for the purpose of family reunification, in a positive, humane and expeditious manner.

(3) The Convention extends to Hong Kong. Although the Convention is not part of the domestic law of Hong Kong, the Applicant has the legitimate expectation that the Immigration Department would consider her case in accordance with the terms of the ICCPR and the Convention.

(4) Under s.11 of the Immigration Ordinance, the Director has the right to give permission to the Applicant to remain in Hong Kong. From the documents disclosed, the Director of Immigration had not considered the terms of the ICCPR and the Convention. For a discussion of this principle see the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v. Teoh [1995] 128 ALR 353. Accordingly leave is granted.