JORGE A. FULLO AND OTHERS v. IMMIGRATION DEPARTMENT

cacv 359/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 359 of 2007

(on appeal from HCAL NO. 68 of 2007)

________________________

________________________

J U D G M E N T

________________________

Hon Rogers VP:

1.  This, I have to say, is a very sad case.  It is an appeal from the decision of Hartmann J given on 30 October 2007, when he refused an application for leave to apply for judicial review.

2.  The facts of the case are set out in his ruling.  The Applicants are from the Philippines.  The father is a Christian Minister and he came to Hong Kong in 1995 and was permitted to remain on visitor conditions with subsequent extensions.  Then on 9 December 1996, he was permitted to remain in Hong Kong for employment.  The permission to remain was extended from time to time but it finally expired, in circumstances which it is unnecessary to go into, on 27 November 2003.

3.  That really is the most unfortunate matter in the case because it was some 13 days short of a seven-year period of continuous residence which would have entitled the 1^st Applicant to be considered a permanent resident but, for the reasons given by Hartmann J in his judgment, unfortunately, there is nothing that the Court can do about it.  The decision of the Immigration Department and the tribunal to which the Applicants went, unfortunately, was correct in law.  The provisions are quite clear, that if one is born outside Hong Kong, one can only claim to be a permanent resident if one has resided permanently in Hong Kong on a continuous basis for seven years immediately prior to the application.

4.  That leaves aside the fact that the application to remain as a resident was not formally made until some 11 months later, and so I have taken the case at the best as I can see it for the Applicants.  The other Applicants are the 1^st Applicant’s wife and his children.  This case has been made all the more unfortunate by the fact that all four members of the family have remained in Hong Kong now for a period of three years until this matter is concluded.

5.  As far as these proceedings are concerned, the inevitable conclusion, if leave were given to bring the judicial review proceedings, is that they would fail.  In those circumstances, it would be even more cruel to give the Applicants leave to bring the judicial review proceedings because they are doomed to failure.

6.  This Court has been asked to exercise its mercy or clemency, but there is nothing that this Court is permitted to do.  There is no exercise of mercy which this Court could exercise in this regard.  Any discretion in the matter remains entirely with the Chief Executive and nobody else.  So unfortunately, I have to say that there is no option, as I see it, but to dismiss this appeal.

Hon Le Pichon JA:

7.  I agree.