COMILANG MILAGROS TECSON, also known as COMILANG MILAGROS T. AND ANOTHER v. COMMISSIONER OF REGISTRATION AND OTHERS

HCAL 28/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 28 OF 2011

____________

BETWEEN

____________

_______________

J U D G M E N T

_______________

1.  By this judicial review, the Applicants (1^st Applicant being the mother of the 2^nd Applicant) seek to challenge two sets of decisions relating to the immigration status of the 1^st Applicant. The first set of decisions was made in respect of the 1^st Applicant’s application for Hong Kong Permanent Identity Card. The second set of decisions was the refusals by the Director Immigration to extend the permission for her stay in Hong Kong.

2.  In respect of the first set of decisions, some of the issues raised were those considered by  the Court of Appeal in Vallejos Evangeline B v Commissioner of Registration CACV 204 of 2011, 28 March 2012.  By reason of her status as foreign domestic helper [“FDH”] and Section 2(4)(a)(vi) of the Immigration Ordinance (which the Court of Appeal held to be constitutionally compliant), her period of staying in Hong Kong up to July 2005 cannot be regarded as ordinary residence.  Further, by reason of the refusal of extension of stay, her remaining in Hong Kong between 7 September 2010 and 29 April 2008 when the 1^st Applicant made her VEPIC application cannot be regarded as ordinary residence (see the recitation of the relevant events at paras 79 to 80 of the Reasons for Decision of the Registration of Persons Tribunal in ROPT 174 of 2008).  In view of my decision in Domingo Irene Raboy v Commissioner of Registration [2011] 6 HKC 532 (recently applied by Au J in Razwan Ahmed v Registration of Persons Tribunal [2012] 2 HKLRD 583), the 1^st Applicant’s VEPIC application is doomed to fail and she could not succeed in her challenge to the first set of decisions.

3.  Turning to her challenge to the second set of decisions, her grounds are founded upon her relationship with the 2^nd Applicant who is a Hong Kong resident.  Different legal arguments have been put forward and one of them is based on the right of the 2^nd Applicant, thus her being named as the 2^nd Applicant.  Irrespective of how one analyses these arguments forensically, they attack (to different extents) a long line of authorities in Hong Kong holding that, due to the special situation here, contention for entitlement of a non-permanent resident to remain in Hong Kong cannot be built upon the rights of one’s spouse or children as Hong Kong residents.

4.  Before I turn to these authorities and the submissions of Ms Li SC, I need to set out some salient facts.  The 1^st Applicant first came to work in Hong Kong as a foreign domestic helper on 20 March 1997.  Her last FDH contract was terminated on 13 July 2005.  Though she signed a new FDH contract on 25 July 2005, that contract was cancelled by the employer in August 2005.  The Director granted the 1^st Applicant extensions of stay on visitor condition until 10 October 2005.

5.  On 26 August 2005, the 1^st Applicant underwent an Islamic marriage with a Mr Ahmed who was a Hong Kong permanent resident.  On 7 October 2005, the marriage was registered at the Tsim Sha Tsui Registry.  On 10 October 2005, she applied for a change of her immigration status to remain in Hong Kong as a dependant of Mr Ahmed.  Pending the processing of the application, the Director did not grant her further permission to stay in Hong Kong.  Thus, upon the expiry of the permission granted for her stay on visitor condition on 10 October 2005, the 1^st Applicant became, legally speaking, an overstayer.

6.  On 2 February 2006, the 1^st Applicant and Mr Ahmed gave birth to a child, the 2^nd Applicant.  By reason of the child’s relationship with Mr Ahmed and her birth in Hong Kong, she is a Hong Kong permanent resident pursuant to Article 24(2)(5).

7.  In the course of the processing of the 1^st Applicant’s change of status application, the Immigration Department found out that Mr Ahmed was married to another woman in Pakistan in February 2003.  That marriage was valid and subsisting in 2005.  The Director asked repeatedly for further information from the 1^st Applicant, Mr Ahmed and the agent who handled the application on behalf of the 1^st Applicant.  Such information was not forthcoming.

8.  On 8 May 2007, Mr Ahmed withdrew his sponsorship for the 1^st Applicant’s change of status application.  On 4 June 2007, the 1^st Applicant left Mr Ahmed with the 2^nd Applicant.  They lived at a shelter provided by a church organization.

9.  Despite that, the 1^st Applicant continued with her application because she wanted her child, the 2^nd Applicant, to grow up in Hong Kong and she wanted to take care of her here.  In a letter of 5 June 2007, the 1^st Applicant wrote,

“I have to prepare my reason [to continue with the application] because I have daughter here and I need to look after my daughter, so I need your good decision.”

10.  At an interview on 3 August 2007, the 1^st Applicant was asked about how she supported herself and her plan for the future.  She indicated that she would not reconcile with Mr Ahmed and his Pakistani wife had come to Hong Kong.  He had sent her message by SMS telling her not to ask him for money. She said she had around $2,000 in her bank account and she intended to find a job to support herself and the living of the 2^nd Applicant in Hong Kong.  When asked about whether she thought of taking the 2^nd Applicant back to the Philippines, she said,

“No, I want my daughter to have good education in Hong Kong. It is good for her future to stay in Hong Kong.”

11.  On 7 September 2007, the Director rejected her application.  Since this was the first letter in the second set of decisions under review, I will recite the letter in full,

“Dear Madam Comilang,

Application for Extension of Stay

and Change of Immigration Status

I refer to your application on 10 October 2005 for extension of stay and change of your immigration status to take up residence in the Hong Kong Special Administrative Region (the HKSAR) as a dependant of your spouse, Mr AHMED Shaker.

Under the existing immigration policy, a person may be allowed to remain in the HKSAR to join his/her spouse already residing here as his/her dependant if it is satisfied, among others, that his/her purpose of taking up residence in the HKSAR is to join his/her spouse as a dependant and that his/her spouse is able to support his/her living at a standard well above the subsistence level.

Having considered all the available information and circumstances of your case, we are not satisfied that your spouse is willing to support your living in the HKSAR. Besides, we cannot find sufficient justification warranting exceptional consideration to extend your stay as a non-permanent resident in the HKSAR. Therefore, I regret to inform you that your application is refused.

         As your limit of stay expired on 10 October 2005, you are required to leave HKSAR on or before 21 September 2007.”

12.  On 25 September 2007, the 1^st Applicant applied for leave to seek judicial review in respect of the decision of the Director on 7 September 2007.  Hartmann J refused leave on 16 October 2007.

13.  She also applied in the Family Court for maintenance against Mr Ahmed.  Legal aid was granted to her for that purpose on 8 November 2007.  In FCMP 219 of 2007 (issued on 21 December 2007), Judge Chu made an order on 1 September 2008 for interim maintenance under the Separation and Maintenance Ordinance of $3,500 each for the Applicants.  Subsequently, on 2 June 2009, Judge Chu made an order granting custody of the 2^nd Applicant to the 1^st Applicant.  The interim maintenance was varied downwards to $5,800 in total, $3,200 for the 1^st Applicant and $2,600 for the 2^nd Applicant.  As for maintenance from 1 September 2009, the maintenance for the 2^nd Applicant was to be increased to $3,800.

14.  According to para 17 of the judgment of Judge Chu on 2 June 2009, the 1^st Applicant told the court she intended to return to the Philippines with the 2^nd Applicant if her appeal against the rejection of her refugee claim failed.  I was not given any information about any refugee claim.  Based on the materials before me, the reference to refugee claim was probably a misdescription of the VEPIC application which she made on 29 April 2008 and the appeal to the ROPT lodged by her on 22 September 2008.  In any event, at para 34 of her 2^nd Affirmation, the 1^st Applicant said she did not have full legal advice at that stage and she did not realize she could apply for judicial review.

15.  Para 41 of the judgment of Judge Chu reiterated that in the event of the 1^st Applicant’s application to remain in Hong Kong being unsuccessful, she had to apply to the Family Court for leave to bring the 2^nd Applicant out of the jurisdiction.

16.  Thus, there is no question of the Family Court pre-empting the issues related to the immigration status of the 1^st Applicant.

17.  During all these times (since 21 September 2007), the 1^st Applicant had no permission from the Director to remain in Hong Kong.  Extension of stays had been applied by the 1^st Applicant on different grounds: initially for application for legal aid to seek judicial review against the decision of 7 September 2007, then to apply for maintenance against Mr Ahmed, and to extend her stay here until the conclusion family court proceedings.  On each occasion, the Director refused to grant any extension.  Instead, a letter of tolerance in the following terms was issued.

“ Your request has been considered. Whilst not prepared to grant you an extension of stay, the Director will not insist upon your departure from the HKSAR on or before 4 October 2007 to facilitate your making the necessary departure arrangement. Your presence in the HKSAR during the period concerned will be tolerated, provided that there being no adverse record found against you.

Please note that your continuing presence in the HKSAR after expiry of your limit of stay on visitor status on 10 October 2005 amounts to a breach of your conditions of stay, which will render you liable to prosecution under section 41 of the Immigration Ordinance, Cap 115 and your immediate enforced departure from the HKSAR. In this respect, you are further reminded of those other conditions of stay to which you are subject during your stay in the HKSAR as a visitor and that you should not:-

a) take up any employment, whether paid or unpaid;

b) establish or join in any business; and

c) become a student at a school, university or other education institution.

A breach of those other conditions of stay in the period concerned will also render you liable to prosecution under section 41 of the Immigration Ordinance, Cap 115 and your immediate enforced departure from the HKSAR.

For the avoidance of doubt, please be reminded that this letter or the tolerance of your stay in the HKSAR is not to be construed as approval of your application for extension of stay nor any permission to remain given by the Director. Your limit of stay has expired and has not been extended. No permission to remain in the HKSAR since expiry of your limit of stay has been given and that your presence in the HKSAR until the required departure date set out above will only be tolerated by the Director, who reserves his rights to take legal action on your breach of conditions of stay.

         Meanwhile, should you decide to leave the HKSAR on or before 4 October 2007, please approach our office and present this letter for departure arrangements to be made.”

18.  The effect of such a letter is well established in Hong Kong jurisprudence.  It is a standard form letter.  A letter in the same terms had been considered by this court in Domingo Irene Raboy v Commissioner of Registration [2011] 6 HKC 532 and I need not repeat what I said in that judgment.

19.  After the conclusion of the Family Court case, the 1^st Applicant wrote to the Director on 9 June 2009 asking for permission to stay in Hong Kong in these terms,

“Once again, would like to ask your good concern to grant me stay in Hong Kong to be with my daughter because as she is permanent resident in Hong Kong I want her to have a good future and I am the mother. I enclose the Final Judgment concerning of custody and maintenance issue. …”

“I want to be her guardian to look after her and to support her needs and everything.”

20.  The response of the Director on 9 June 2009 was another letter of toleration.

21.  On 17 June 2009, a letter from the Extension Section of the Immigration Department invited the 1^st Applicant to submit the following documents to facilitate consideration on her application,

“ To facilitate our consideration on your application, I shall be most grateful if you could forward the following documents within two weeks from the date of this letter:

duly completed ID520 and Information Sheet (enclosed);

your resident proof such as tenancy agreement, rental receipts, Demand Notice of Rate;

your financial proof of sponsor such as full copy of your bank passbook and/or bank statement for the past months);

letter stating your reasons to remain in Hong Kong and your difficulties to return to the Philippines with your daughter;

your future plan in Hong Kong; and

         copy of your daughter’s passport”

22.  On 23 June 2009, the 1^st Applicant asked for more time to prepare the documents and requested for extension of stay.  Her solicitors made another request for further time to submit documents on 3 July 2009.  Some documents were supplied in July 2009.  In the meantime, her appeal to the ROPT was progressing and it was heard in April 2010.  Determination of the appeal was given on 4 June 2010.  Standard form toleration letters were issued from time to time by the Director during this period.  The last toleration letter placed before this court is a letter dated 20 July 2011, tolerating her presence up to 17 August 2011. 

23.  On 17 March 2010, the Extension Section wrote to the 1^st Applicant with reference to her application of 9 June 2009 in the following terms,

“Dear Madam Comilang,

Request to remain in Hong Kong

I refer to your letter of 9 June 2009 in which you request to be allowed to remain in the Hong Kong Special Administrative Region (HKSAR) for taking care of your daughter, Miss AHMED Zahrah Noor.

Under the existing immigration policy, a person may be allowed to come or remain in the HKSAR to join his/her natural son/daughter already resident here as his/her dependant if it is satisfied, amongst other things, that he/she is at or over the age of 60 and his/her purpose of taking up residence here is to join his/her natural son/daughter as his/her dependant. In addition, his/her natural son/daughter is able to support his/her living at a standard well above the subsistence level.

Having considered the circumstances of your case, both you and your daughter are not satisfied to have met the above mentioned requirements. Based on the available information, we further do not find any strong compassionate ground justifying our exceptional consideration on your case. Therefore, your request to remain in the HKSAR for taking care of your daughter is therefore refused.

         Please note that your presence in the HKSAR is being tolerated till 17 March 2010.  If you wish to continue remaining in the HKSAR, please call on our office on 17 March 2010 during office hours and make your request in writing with supporting documents for our further consideration.”

The immigration status of the 1^st Applicant

24.  Having recited the facts, the fundamental position can be summarized as follows: the 1^st Applicant, not being a person falling into any of the categories in Article 24(2) of the Basic Law, is not a permanent resident and therefore has no right of abode.  Article 154(2) of the Basic Law provides that the Government may apply immigration controls on entry into, stay in and departure from the Hong Kong Special Administrative Region by persons from foreign states and regions.  The Director of Immigration is authorized by the Immigration Ordinance [“the IO”] to implement and impose such immigration controls.

25.  By reason of Section 7(1) of the IO, the 1^st Applicant may not land in Hong Kong without the permission of the Director.  Thus, when she arrived in Hong Kong, she had to obtain such permission.  The permission to land given to her was subject to limits and conditions of stay imposed under Section 11 of the IO.  As recounted above, the permission granted to the 1^st Applicant to stay as a visitor expired on 10 October 2005.  Since then, she did not have the permission to remain in Hong Kong.  Under Section 19(1)(b)(iii) of the IO, the Director may make a removal order against her.

26.  In respect of the exercise of power under Section 19 to make a removal order and the power of a Director to authorize an illegal immigrant to remain in Hong Kong, the Court of Final Appeal held in Lau Kong Yung v Director Immigration (1999) 2 HKCFAR 300 at p 330 and 339 that the Director has no duty to consider humanitarian grounds.  It is also clear from the following observation of the Chief Justice at p 330G that the same approach is applicable in respect of the exercise of the power to extend the limit of stay under Section 11.

“Further, if what is suggested is that the Director should consider the exercise of some other statutory discretion (apart from ss.13 and 19) to enable such a claimant to stay in Hong Kong temporarily or permanently, the position would be similar to that under ss.13 and 19 as regards humanitarian grounds.”

27.  Can the 1^st Applicant challenge the Director’s exercise of his power to refuse to extend the limit of her stay by some other grounds? Ms Li submitted that she can and counsel attempted to do so by reference to provisions in the Basic Law, the Hong Kong Bill of Rights and some international conventions.  Before I turn to her arguments, I shall examine a line of authorities in Hong Kong regarding immigration control.

Hong Kong authorities on immigration control

28.  It is apposite to begin a review on our jurisprudence on immigration control by quoting from the judgment of A Cheung J (as the Chief Judge then was) in MA v Director of Immigration HCAL 10 of 2010, 6 January 2011, para 97,

“… As the courts, including this Court, have noted on various occasions, in the light of Hong Kong’s small geographical size, huge population, substantial daily intake of immigrants from the Mainland, and relatively high per capita income and living standards, and given Hong Kong’s local living and job market conditions, almost inevitably Hong Kong has to adopt very restrictive and tough immigration policies and practices. The courts recognize that the legislature has chosen to entrust the high responsibility for and wide discretions on immigration matters to the Director. It is an important responsibility, given Hong Kong’s unique circumstances, and the discretions conferred are indeed wide. And it is not at all surprising that the Director has consistently devised and implemented very restrictive and stringent immigration policies. The courts have said repeatedly that they will not lightly interfere with the Director’s policies or exercise of discretion, even though many of the cases involved, or potentially involved, family reunion, detention/freedom of the person, or other important subject matters. …”

29.  This summed up the unique position of Hong Kong and the social need for the Director to maintain stringent immigration policies.  Like the 1^st Applicant, there are many parents who harbour, perhaps understandably, the aspiration that their children be brought up in Hong Kong.  As mentioned in the course of hearing, if Ms Li were correct in her submissions, the implications for Hong Kong’s population strategy would be immense, particularly in view of Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 212.

30.  There are also many aspiring immigrants with relatives in Hong Kong seeking to come here on the ground of family reunion.  Some of them are parents living outside Hong Kong with children living here as permanent residents.  Some of them are children with parents living here as permanent residents.  There are also many applicants with spouses living here as permanent residents.  The Director is entrusted with the extremely important task of exercising immigration control.  It is not appropriate for the court to usurp the role of the Director because the court does not have a macro picture of the overall immigration demand and the potential impact (political as well as socio-economical) of a change in the policy in the population strategy of Hong Kong.  Faced with a hard case, it is tempting for the court to grant relief on an individual basis as a matter of discretion.  Such temptation must be resisted because, unlike the Director, the court has no idea how many cases of similar nature are in the pipeline and what the implications would be if relief is granted in this instance.  The court is simply not equipped with the necessary knowledge to reformulate the immigration policies for the Director.

31.  However, when it is a matter of legal rights (as opposed to a matter of discretion) the court must apply the law as it is.  If Ms Li is correct as a matter of law, it is the duty of this court to enforce the law to protect the legal rights of the Applicants.  I shall therefore review the cases to find out what the law is.  Before I do so, it is necessary to refer to the reservations made in some international conventions.  I shall call these the immigration reservations.  First, in respect of the International Covenant on Civil and Political Rights [“the ICCPR”], the following reservation made at the time when the government of the United Kingdom ratified the Covenant in 1976, applied and is still applicable to Hong Kong,

“The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, their acceptance of Article 12.4 and of the other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories.”

32.  Thus, when the ICCPR was incorporated into domestic law by the Bills of Right [“BoR”] in 1991, Section 11 of the Hong Kong Bill of Rights Ordinance [“BORO”] provides,

“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

33.  Further, there are differences in the BoR and the ICCPR reflecting the implementation of the immigration reservation.  Article 12(4) of the ICCPR reads,

“No one shall be arbitrarily deprived of the right to enter his own country.”

The jurisprudence of the Human Rights Committee has extended the concept of “his own country” beyond that enjoyed by a national of a country[1]. In contrast, Article 8(4) of the BoR is in the following terms,

“No one who has the right of abode in Hong Kong shall be arbitrarily deprived of the right to enter Hong Kong.”

34.  Since the resumption of sovereignty in 1997, the ICCPR is given constitutional backing by virtue of Article 39 of the Basic Law.  Article 39 refers to “the provisions of the ICCPR … as applied to Hong Kong shall remain in force”.  This means that the immigration reservation (and Section 11 of BORO) continues to apply, see Ubamaka v Secretary for Security [2011] 1 HKLRD 359.

35.  The second immigration reservation was made in respect of the Convention on the Rights of the Child [“CRC”].  On 10 June 1997, the Central Government informed the United Nations’ secretary general that the reservations and declarations entered by PRC when it ratified the CRC in 1992 would be applicable to Hong Kong with effect from 1 July 1997.  The immigration reservation in the CRC is as follows,

“The Government of the People’s Republic of China reserves, for the Hong Kong Special Administrative Region, the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the Hong Kong Special Administrative Region of those who do not have the right under the laws of the Hong Kong Special Administrative Region, and to the acquisition and possession of residentship as it may deem necessary from time to time.”

Prior to that, there was a reservation by the government of the United Kingdom in 1991 to the CRC which was applicable to Hong Kong,

“The United Kingdom reserves the rights to apply such legislation, insofar as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time.”

36.  The CRC does not have the force of domestic law in Hong Kong.

37.  As mentioned by A Cheung J, the courts in Hong Kong have always recognized the importance of maintaining stringent immigration policies and the role of the Director in exercising immigration control.  At para 98 of his judgment in MA, His Lordship said when the court considered the rationality of the policy and the exercise of discretion by the Director in individual cases,

“… the court is bound to have substantial regard to the overall immigration picture as a general justification for the Director’s policy or exercise of discretion concerned … The court must firmly bear in mind that it is not entitled, even under the anxious scrutiny approach, to dictate to the Director what policy he should make or how he should exercise his discretion or otherwise act, in accordance with the relevant fundamental right … Nor does the anxious scrutiny approach entitle the court to tell the Director that he must take into account humanitarian or similar considerations under any or any particular circumstances when exercising his wide discretions. Indeed the Court of Final Appeal as specifically said in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, a case where, amongst other things, family rights were potentially at stake, that the Director is under no duty and hence not bound to take humanitarian considerations into account.”

38.  Amongst the cases cited by His Lordship at para 97 is the Court of Appeal’s decision in Hai Ho-tak v Attorney General [1994] 2 HKLR 202.  The issue before the court was whether Section 11 of the BORO prevents close family members from relying upon their rights in the BoR to challenge a decision of the Director to remove a relative who has no right to remain in Hong Kong.  The right relied upon by the applicant was the right not to be subject to arbitrary or unlawful interference with family under Article 14 and the protection of family under Article 19 of the BoR.  The Court of Appeal answered in the affirmative.  The ratio can be found at p 209 lines 5 to 14 in the judgment of Nazareth JA and p 210 lines 5 to 20 in the judgment of Godfrey JA.  Mortimer JA also observed at p 208 that Section 11 is “an essential limitation on the general provisions of the international covenant brought about by the reality of Hong Kong’s geographical position and economic success”.

39.  Nazareth JA said at p 209, after referring the effect of Section 11,

“That means not that members of the family of such a person … do not have ‘family’ rights under the Bill, but that their family rights do not affect [the IO] or its application in relation to that person; likewise that even if such family members have locus standi in proceedings such as this, their family rights would not avail in respect of the operation of such immigration legislation as regards that person.”

40.  Godfrey JA said p 210,

“Like all other human rights, the rights of the family under the Ordinance are not absolute.”

41.  Ms Li submitted that the case was only concerned with the construction of Section 11 and what Their Lordships said beyond the construction question were obiter.  I have three comments on this submission.  First, as explained above, Section 11 gives effect to the immigration reservation for the ICCPR.  That reservation was a significant qualification to the application of the ICCPR in Hong Kong prior to 1 July 1997.  Since then, it has been constitutionally entrenched under Article 39 of the Basic Law.  This provides a relevant context that one must take into account in the construction of the other provisions of the Basic Law, including Articles 24 and 37 relied upon by the Applicants.

42.  Second, irrespective of the status of Their Lordships’ remarks as obiter, I am in agreement with the observations that in the context of immigration cases, family rights are not absolute.  In my view, this proposition is self-evident.  If family rights were allowed to prevail over other considerations, immigration control in Hong Kong would be severely undermined and there has to be very clear and cogent grounds to support such a construction of the Basic Law.

43.  Third, the ratio in this case is that the immigration reservation prevented a person from asserting a right to protection of family to challenge the exercise of immigration control by the Director, whether such challenge comes from the person being removed or from his family members who are Hong Kong permanent residents.  Though this principle was applied in the context of Section 11 on the arguments advanced in that case, the same principle of law is applicable in respect of other manifestation of the immigration reservations, including Article 39 of the Basic Law. 

44.  I come to Santosh Thewe v Director of Immigration [2000] 1 HKLRD 717, decision by Stock J (as he then was).  In that case, a permanent resident sponsored the application by her husband for permission to reside in Hong Kong as her dependant.  The application was rejected as the Director was not satisfied, amongst other things, that she was capable of financially supporting him.  They sought to challenge that decision on the ground that the dependant policy was unlawful by reason of Articles 25, 36, 37 and 39 of the Basic Law.  The court, after hearing full arguments, refused leave to apply for judicial review.

45.  For present purposes, the relevant holding is set out at para (3) of the headnotes,

“Article 37 … did not stand on its own; it could not be looked at in a vacuum. Article 39 permitted restrictions on the rights protected in Chapter III of the Basic Law, provided those restrictions were provided by law and were compatible with various international instruments, including the [ICCPR]. In H’s case, such a restriction had been prescribed by Section 11 of the [BORO].”

See the judgment at p 721D to 722H.  His Lordship regarded Section 11, being a restriction prescribed by law, is the plain and obvious answer to the Article 37 point.

46.  Ms Li submitted that Stock J was wrong in that conclusion.  She referred to the judgment of the Chief Justice Li in Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at paras 26 to 28.  Para 27 deals with rights recognized by ICCPR as well as the Basic Law whilst para 28 deals with rights conferred by the Basic Law which are not found in and are additional to those provided by the ICCPR as applied to Hong Kong. 

47.  In my judgment, if Article 37 is to be construed as conferring a general right of family life (as opposed to the construction given to it in Li Nim Han v Director of Immigration HCAL 36 of 2011, 14 November 2011), it would be the same kind of right as protected by Articles 14 and 19 of the BoR.  In that scenario, the relevant principle is to be found in para 26 of Gurung Kesh Bahadur,

“Thus, in the context of rights recognized by the ICCPR as applied to Hong Kong (whether or not such rights are also enshrined in the Basic Law), art 39(2) spells out the two requirements which any purported restriction must satisfy.”

48.  In coming to this conclusion, I have not overlooked the fact that the right to protection of family under the ICCPR as applied to Hong Kong was circumscribed by the immigration reservation.  However, the right itself remains extant under the BoR, see the observation of Nazareth JA in Hai Ho-tak. Thus, it is still a right recognized by the ICCPR as applied to Hong Kong.  Therefore the consideration of the Chief Justice at para 29 of Gurung Kesh Bahadur is not applicable to the right to protection of family.

49.  On the assumption that Article 37 confers a general right to protection of family, the rationale of Stock J in Santosh Thewe is not inconsistent with Gurung Kesh Bahadur.

50.  Another attempt to challenge the dependant policy was made in Krishna Rai v Director of Immigration HCAL 145 of 1999, 25 February 2000.  Yeung J (as he then was) agreed with the reasons given by Stock J in Santosh Thewe and Godfrey JA in Hai Ho-tak.  At p 9 and 10 of the judgment, he said,

“I would add that on immigration matters, the special circumstances of a particular country or region must be borne in mind.”

After referring to Hai Ho-tak, he said,

“The right under Article 37 of the Basic Law is not an absolute right. In the light of the reservations to the provisions of the [ICCPR] and the problems which Hong Kong faces, the Director is entitled not to grant an automatic right to a spouse of a Hong Kong permanent resident to stay in Hong Kong.

The Director is perfectly entitled to, as he should, take into account the special circumstances of Hong Kong in formulating the immigration policy. I need not repeat the various matters raised by the Director in the affirmations of his officers, but any relaxation in the immigration policy clearly will pose significant difficulty to Hong Kong. The Director will be failing his duty in not always bearing those matters in mind.

An alien visitor can have no right nor legitimate expectation to be granted residence right in Hong Kong as a dependant or otherwise.” 

51.  In Chan Mei Yee v Director of Immigration HCAL 77 of 1999, 13 July 2000, the court had to consider the case of an overstaying Mainland mother who had married a Hong Kong permanent resident and gave birth to a child here. A removal order was made against her by the Director and she sought judicial review basing on the ICCPR, the International Covenant on Economic, Social and Cultural Rights [“ICESCR”], and the CRC.  As mentioned, there are immigration reservations in respect of the ICCPR and CRC; there is no similar reservation for ICESCR.  After alluding to different views in some overseas jurisdictions, Cheung J (as Cheung JA then was) felt constrained by Hai Ho-tak and said at p 20,

“The legal constraint I am faced with is that the Hong Kong Court of Appeal decision is binding on me. What was said about the reservation of the Bill of Rights Ordinance clearly applies to the international covenants as well. Whether one is invoking the international covenants as a substantive right or by way of legitimate expectation, it is clear that the effect of the Court of Appeal decision is that other members of the family who are Hong Kong permanent residents cannot resort to the provisions of the international covenants or the Bill of Rights Ordinance on behalf of Ms Chan who is not a Hong Kong resident.”

52.  As seen above, I have come to the same conclusion as regards the rationale of Hai Ho-tak.

53.  As regards the ICESCR where there is no immigration reservation, Cheung J said at p 23,

“In respect of the ICESCR, the obligations are qualified rather than absolute in that they are limited to the maximum of the resources available to the State parties to appropriate means. The obligations are also progressive rather than immediate as they call for steps to be taken with a view to achieving progressively the full realization of the rights concerned.”

And at p 25,

“The way in which the ICCPR and ICESCR are formulated clearly supports the argument that the latter covenant is promotional in nature. However, even though it is promotional in nature, it does not mean that the ICESCR cannot be used as a framework in which government decisions or discretions are to be considered. After all, article 10(1) provides that the State parties recognized that the widest possible protection and assistance should be given to the family which is the natural and fundamental group unity of society. In my view, this is no different from provisions in the ICCPR and CRC. This construction does no violence to the promotional aspect of the covenant. However, the Court of Appeal in Hai Ho-tak (per Godfrey JA) further held that even in the absence of the reservation, the Director is entitled to implement lawful decisions in matters relating to immigration because of the unique position faced by Hong Kong. In this case, other than the issue of legitimate expectation, there is no challenge that the decision was a lawful one. As the matter now stands, I must abide by the decision of the Court of Appeal. The result is that the ICESCR cannot be invoked as the basis of legitimate expectation even in the absence of the reservation.”

54.  Ms Li submitted that ICESCR should not be characterized as promotional. I shall deal with the nature of ICESCR rights when I discuss her contentions below.  She also contended that Cheung J was wrong to regard himself as bound by the judgment of Godfrey JA which was, according to her, only obiter without the endorsement of the other two members of the Court of Appeal.  As regards that submission, I have already expressed my agreement with the view that in the context of immigration cases family rights cannot be absolute.  Even though the ICCPR and ICESCR are given constitutionally backing in Article 39 of the Basic Law, it is also provided in the same article that these international conventions shall be implemented through the laws of Hong Kong.  In other words, they do not by themselves have the force of law.  In determining the constitutional obligation on the part of Hong Kong under Article 39 to implement these conventions, one must have regard to the intent of the drafters of the Basic Law.  In determining the extent of their actual implementation through domestic legislations, the court must have regard to the intent of the legislature.  In the examination of the intent of the drafters of the Basic Law and the legislative intent for BORO and IO, the court will inevitably have regard to the unique position faced by Hong Kong (as discussed in MA) as this is a highly relevant consideration for the legislators and the drafters of the Basic Law.

55.  Before I leave Chan Mei Yee, I should refer to the approach of Cheung J towards the impact of the international conventions.  Insofar as they are not implemented directly by any domestic legislation, His Lordship held that there was a legitimate expectation that these conventions would be taken into account.  At p 16, he said,

“In my view, the approach of the High Court of Australia and Court of Appeal in New Zealand should be adopted. This approach clearly recognized that the international covenants and conventions are not part of the domestic law. However, a husband and a child who are Hong Kong permanent residents clearly have the legitimate expectation that when the Government is to remove their wife or mother, it should take into account the international covenants on the importance of family and welfare of the children. Otherwise the adoption of the international covenants would, as described in Tavita, be a case of window-dressing only. Where legitimate expectation is invoked by reference to the international covenants, the court is, of course, dealing this concept in the context of procedural propriety and not as a matter of substance.”

See also the discussion of the English approach and the Australian and New Zealand approach at p 11-16.

56.  Ms Li relied on this as one of the basis for her contention based on the CRC, see para 74B of the Amended Form 86.  I shall come back to her contention later.  As we shall see, this contention is inconsistent with the conclusion of Hartmann J in Chan To Foon.

57.  The next case is Mok Chi Hung v Director of Immigration [2001] 2 HKLRD 125.  That was another instance where the applicants (the subject of a removal order and her infant daughter who was a permanent resident) challenged the decision of the Director based on the ICCPR, ICESCR and the CRC.  Cheung J repeated his reasons in Chan Mei Yee for rejecting the challenge.

58.  Another unsuccessful attempt at this three-pronged challenge was made in Chan To Foon v Director of Immigration [2001] 3 HKLRD 109.  Hartmann J (as he then was) considered the effects of the immigration reservations as follows at p 120-121,

“In summary, both the ICCPR and the CRC have been applied to Hong Kong subject to the reservation that, expressly broadly, our immigration laws may continue to be applied even if they conflict with or are in any way incompatible with those conventions. The Bill of Rights contains an exception to the exact same effect. In my judgment, the voice of those responsible for entering into the international instruments could not be clearer. The manifest instruction to the Director is that, in applying Hong Kong’s immigration laws, he is not bound by the provisions of the ICCPR or the CRC. In light of this, I confess I fail to see how it can be argued that the applicants have a legitimate expectation that the Director will (and must) take those same international instruments into account.”

59.  Citing the judgment of Hirst LJ in R v Secretary of State for the Home Department, ex p Gangadeen [1998] 2 FCR 96, Hartmann J held that the Australian and New Zealand approach based on international conventions could not be applied in Hong Kong.  In this respect, at p 130B to C, His Lordship expressed a different view from that of Cheung J in Chan Mei Yee,

“I am satisfied that the authorities on legitimate expectation in this field accept that by lawful action such expectations may be curtailed or expunged. I am satisfied that the reservations to the ICCPR and the CRC are certainly binding on Hong Kong’s municipal courts. Those reservations make it manifest that, in what I broadly termed immigration matters, those making administrative decisions need not take into account the protective provisions contained in the conventions. In short, in my judgment, the reservations pre-empt (in respect of all persons) emergence of any legitimate expectation in matters concerning illegal immigrants.”

60.  His Lordship referred to Hai Ho-tak and came to the conclusion that what was said in that case with regard to Section 11 in the context of the BoR applied equally to the immigration reservations in the context of the ICCPR and CRC.  At p 27I to J,

“If s.11 prevents Hong Kong permanent residents from invoking their rights under the Bill of Rights in cases regarding illegal immigrants, then the reservations applied to the ICCPR and the CRC must have the same effect. I do not see how in our municipal courts those reservations – which have almost the same language and, in my view, the same intent – can be read differently. The reservations have been applied in recognition of the ‘reality of Hong Kong’s geographical position and economic success’ and apply equally to illegal immigrants and to their family members who are permanent residents of Hong Kong.”

61.  As regards ICESCR, Hartmann J was in agreement with Cheung J.  In addition, His Lordship made the following observations,

On the lack of immigration reservation for the ICESCR, His Lordship said at p 131D,

“But no such reservations have been entered in respect of the ICESCR. Why is that? In my view, the reason must lie in the nature of this convention (entitled a covenant) and the manner in which its nature may be contrasted with the ICCPR and the CRC.”

On the nature of rights under the ICESCR, at p 132G to H,

“Hong Kong may therefore recognize the rights protected by the ICESCR. But they are rights which, having regard to this Territory’s existing social difficulties, may only be guaranteed progressively; that is, as and when those difficulties are overcome. Matters of immigration, as our courts have recognized, remain a major problem. If unchecked, it is clear that, in the informed opinion of the Director, the problem will threaten the Territory’s social fabric. As a result, in respect of immigration matters, the Government of Hong Kong is unable at this time to guarantee the rights protected in the Covenant when they relate to matters of immigration. I believe it may be taken that it is for this reason that no reservation was entered in respect of the ICESCR; it is an aspirational covenant, not one that creates absolute obligations.”

And at p 133F to G,

“Nor, in my opinion, can the ICESCR be looked at in isolation. It must be considered in conjunction with the ICCPR, the CRC, the Bill of Rights and also the decisions of our municipal courts. In respect of the two international conventions where immediate and absolute rights are created (the ICCPR and the CRC) reservations have been entered in respect of immigration matters. To suggest that nevertheless the ICESCR creates legitimate expectations of the sort relied upon by the applicants in the face of those other two instruments and the Basic Law is, I believe, artificial.”

62.  Hai Ho-tak was again applied by Hartmann J in dismissing the judicial review in Marilyn Aringo v Director of Immigration HCAL 96 of 2004, 5 September 2005 where a couple challenged the Director’s refusal to grant a dependant visa to the non-permanent resident husband based on, amongst other things, the BoR and the Basic Law.

63.  In Gurung Ganga Devi v Director of Immigration HCAL 131 of 2008, 23 September 2009, Saunders J dismissed a judicial review to challenge the decision of the Director over the dependant visa application of a mother who wished to live here with her daughter who was a permanent resident.  The contention of the mother was based on Articles 37 and 41 of the Basic Law, Articles 14 and 19 of the BoR and Article 10(1) of the ICESCR.  Saunders J adopted the reasoning of Stock J in Santosh Thewe and Hartmann J in Marilyn Aringo.  Dealing with counsel’s submission based on the English case of Huang v Secretary for the Home Department [2007] 2 AC 167, Saunders J said at para 28,

“It is right that Huang demonstrates that a more expansive definition of the expression “the family” is open.  But that such a more expansive [definition] is open does not detract in any way from the validity of the reasoning of Stock J.  In the absence of legislative change extending the applicable rights, I do not find them to be open to found an argument on the part of [the mother].”

64.  At para 31, the court made reference to the unique position of Hong Kong,

“The unique situation of Hong Kong in relation to immigration matters is well known and provides more than ample justification for the restrictive immigration policies that exist. It is my clear view that it is not for the courts to extend those policies by interpretation of language, long accepted to have a specific meaning. If the right of family reunification is to be extended beyond the bounds of the policies established by the Director, that is a matter which must be undertaken by those responsible for policy and not the courts.”

65.  Similar challenge came before the court again in Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219.  A Cheung J applied Hai Ho-tak in rejecting a challenge based on the BoR.  As regards the challenge based on Article 37, instead of applying of Santosh Thewe, His Lordship rejected it by reference to the Chinese version of the Article and having regard to Article 49 of the Constitution of the People’s Republic of China.  At para 58, the following was said,

“In my view, the English version of art.37 of the Basic Law is consistent with the Chinese meaning. The ‘right to raise a family freely’ sits comfortably well with the interpretation, based on the Chinese version, that it is a right to procreate and to foster children, and has nothing to do with the maintenance or taking care of a parent by an adult child, or the formation or maintenance of a family comprising such a parent and adult child. In particular, ‘to raise’ means, in the context, to ‘rear, bring up, (a person or animal)’, according to the Shorter Oxford English Dictionary on Historical Principles 6^th Ed 2007 p.2454.”

66.  At paras 19 to 22, Cheung J reiterated the approach that our courts have consistently adopted in handling immigration cases, paying due regard to the unique circumstances of Hong Kong mandating stringent immigration policies to be followed and the respective roles of the Director and the courts in such matters.

67.  More recently, in Li Nim Han v Director of Immigration HCAL 36 of 2011, 14 November 2011, this Court dismissed a judicial review challenging the Director’s removal order by the wife of the subject of removal in reliance on Article 37 of the Basic Law.  Counsel in that case relied on English and European jurisprudence and invited the court to follow those cases in the construction of Article 37.  This Court rejected that submission.  As regards the right of the subject of removal under Article 37, this Court said at para 14,

“Further, no matter how one interprets the right under Article 37 of the Basic Law, it cannot be an absolute right to have one’s family members to enter and remain in Hong Kong without regard to immigration control. … Given the non-resident status of the 2^nd Applicant, counsel had to accept that he could only enjoy the right conferred under Chapter III of the Basic Law ‘in accordance with law” under Article 41. Since the law does not give him any right of abode in Hong Kong (as he is not a permanent resident as prescribed by Article 24) and he has no right to enter or remain in Hong Kong, he cannot rely on Article 37 to resist a removal order.”

68.  Bearing in mind that the Chinese version of the Basic Law should have precedence in case of discrepancy, and having regard to the Chinese wordings of Article 37, this Court rejected the contention that Article 37 could provide a platform for importing the English and European jurisprudence on right to family life, see paras 24 to 49 of the judgment.  Protection of family is afforded by the ICCPR as applied to Hong Kong through the BoR and Article 39 of the Basic Law, as such subject to the immigration reservations.

69.  Commenting on the English approach of proportionality based on Article 8(2) of the European Convention on Human Rights[2] [“ECHR”] as applied in recent cases[3], this Court said at para 47,

“It is difficult to reconcile an interpretation of Article 37 giving it these effects [as espoused in the English authorities] with the immigration reservations and the reading of Article 24(2)(3) with Article 22(4). It would also drive a coach and horses through our immigration scheme for dependant immigrants which was upheld by Stock J in Santosh Thewe v Director of Immigration [2000] 1 HKLRD 717. Whilst it may be suggested that as there is no equivalent to Article 8(2) of ECHR in our Article 37 and as such our proportionality test may be applied more stringently, but how should the different considerations be weighed? Once it is accepted that the English proportionality approach cannot be incorporated in a wholesale manner and more weight should be given to the community’s interest in maintaining a tight immigration control, there may be little difference in substance between the humanitarian consideration which the Director, at his sole discretion, may entertain from time to time on a case by case basis and a diminished application of the English approach.”

70.  At paras 48 and 49 of the judgment, this Court explained why Article 37 should not be a launching pad for a judicial review on humanitarian ground which the Court of Final Appeal in Lau Kong Yung had enjoined.

71.  At paras 51 to 57, this Court followed the approach of Hartmann J in Marilyn Aringo and held that the rationale of Hai Ho-tak equally applies to a resident’s reliance on Article 37 to challenge a removal order against his or her close relatives.

72.  This brief survey of the Hong Kong jurisprudence shows that over the years the courts in Hong Kong have steadfastly maintained a uniform approach as described by Cheung J in MA and Gurung Deu Kumari and challenges to decisions of the Director based on family rights or family re-union grounds, irrespective of the forensic arguments deployed, involving the Basic Law, BoR, ICCPR, ICESCR, CRC, have consistently been rejected in view of the immigration reservations and the special circumstances of Hong Kong.

The right of the 1^st Applicant

73.  Apart from the derivative right argument (to be considered below), Ms Li relied on the following provisions to advance a legal right to remain in Hong Kong on behalf of the 1^st Applicant,

(a)  Articles 37 and 39 of the Basic Law;

(b)  Articles 14, 19(1) and 20(1) of the BoR;

(c)  Articles 17, 23(1) and 24(1) of the ICCPR; and

(d)  Article 10 of the ICESCR.

74.  She also advanced an argument that on the facts the Director had failed to give due consideration to various matters in the exercise of his discretion. I will quote from paras 69 to 71 of her skeleton submissions.

“69. From the above, it is submitted that the Director has clearly failed to consider or have due regard to Zahrah' s status as permanent resident with right of abode, her best interests as determined by a court of law in granting custody, care and control to Ms. Comilang, in light of all of the safeguards in the CRC and other international instruments set out above. In particular,

a. Zahrah’s right to twelve years free education as a HKPR under the existing policies of the HKSAR Government and in the language with which she is most familiar, namely English, Urdu, Cantonese and Putonghua;

b. Her right to be maintained by her father and the difficulties which would be involved in applying for and enforcing any orders from the Family Court if she and/or Ms. Comilang is not in Hong Kong. Being a minor, Zahrah has to rely upon her adult carer to seek such orders at each stage of her life having regards to the means of her respective parents and her needs;

c. The Family Court, having the appropriate jurisdiction, had determined that it is in Zahrah’s best interests to be in the custody, care and control of her mother notwithstanding that her father is a HKPR and that her relationship with the father will be maintained through access. These best interests as determined by the court could not be safeguarded if her mother is not permitted to be resident in the HKSAR;

d. Without the appropriate status, Ms. Comilang cannot be lawfully employed even on a part-time basis during the school hours so as to be able to make provision for her daughter;

e. Zahrah’s right to receive continuous medical treatment for her skin condition and any other medical needs she may have.

70. Forcing Ms. Comilang to leave will force her to apply for an application to relocate Zahrah permanently overseas, most likely in the Philippines. To a very great extent, she would be deprived on a day to day and year to year basis of the central aspects of permanent residency in Hong Kong, including schooling, and social and cultural links. Contact with her father and step-sibling would be greatly lessened, if not cut altogether. She could not be educated in Hong Kong, and her prospects of learning and becoming fluent in Chinese considerably compromised. She would not be able to develop and become part of the Hong Kong society in her childhood.

71. It is obvious the detrimental effect this would have on maintaining links with both parents. It is axiomatic that to be brought up and maintain contacts with both parents in the case of separation and divorce is in the best interests of a child. That is the underpinning of all orders in relation to custody and access, leaving aside the rare cases where maintaining contact with one parent would be detrimental (e.g. abuse). That seems to have played no or very little part in the Director’s deliberations. Certainly there is nothing in the reasons which suggests due regard has been had to this element. It is plain that the Director has viewed this case as falling within a category where he only needs to take account of “exceptional or compassionate” factors and is under no duty to justify his conclusion with anything approaching adequate reasons therefor.”

75.  Counsel said these matters were not mentioned in the letters of refusal, including the letter dated 17 March 2010 when the Director said he did not find any strong compassionate ground justifying exceptional consideration in this case.  She said the Director did not provide adequate reasons to justify his refusals or to demonstrate that the infringement of family rights was proportionate.

76.  Ms Li further submitted orally at the hearing that the case could be analysed at different levels of review,

(a) The various matters relied upon can be analysed as constitutional rights pre-empting the Director from removing the 1^st Applicant;

(b) The various matters relied upon can be analysed as relevant rights which the Director should weigh and a removal order infringing those rights can only be made if it is proportionate to do so;

(c) The various matters relied upon can be analysed as relevant considerations which the Director must take into account and the weighing would be subject to anxious scrutiny by the court by reference to the reasons given by the Director;

(d) The various matters relied upon can be analysed as relevant considerations in assessing humanitarian grounds.

77.  As regards the last level of review, it is clear from Lau Kong Yung that humanitarian considerations are not reviewable in courts.

78.  For the reasons given in Li Nim Han, I hold there is no scope for the proportionality approach in Hong Kong.

79.  As regards anxious scrutiny, Ms Li relied on the judgment of Cheung J in MA v Director of Immigration HCAL 10 of 2010, 6 Jan 2011.  Mr Chow objected to this argument being entertained because it was not raised in the Form 86 (nor in the Amended Form 86) and as a result the Director did not place before the court all the necessary information which might have a bearing on such argument.

80.  I agree with Mr Chow that the anxious scrutiny argument has not been properly raised and I am not satisfied that all the necessary information pertaining to the decision-making process of the Director, particularly how the Director considered the matter in terms of humanitarian grounds, had been placed before the court.

81.  There is a more fundamental objection to the anxious scrutiny argument.  MA was a case in which Cheung J was concerned with screened in torture claimants or a mandated refugees stranded in Hong Kong for a substantial period who had little prospect of resettlement in the foreseeable future.  The issue was about these people’s applications to the Director for permission to work.  The case was not about granting these people permission to stay in Hong Kong.  This is apparent from footnote 12 in the judgment where His Lordship referred to a concern of a permission to work being regarded as a general permission to stay qualifying these people to become permanent residents in due course.  That would be contrary to the Government’s long-standing policy of not granting asylum to refugees.  Cheung J observed that this was a highly relevant consideration.  Even though Cheung J applied the standard of anxious scrutiny and quashed the refusals of the Director, it is quite obvious that His Lordship did not decide that these persons should have general permission to stay.  Actually, His Lordship did not even decide that these persons should have permission to work.  To do so, as observed by Cheung J, would usurp the role of the Director.

82.  In the present case, the Applicants are seeking judicial review in respect of the refusals of the Director to grant the 1^st Applicant extensions of stay.  Unlike the situation of the applicants in MA, she is not stranded here though one can understand her wish to remain in Hong Kong for the sake of the 2^nd Applicant.  It is also important that though her permission to stay in Hong Kong had long expired, the Director has not made any removal order against her.  Instead toleration letters were issued to her. She has been able to remain here physically.  By these challenges, the 1^st Applicant is seeking to establish her right to remain in Hong Kong as an ordinary resident and upon the expiration of seven years’ stay she can make a VEPIC application by reference to Article 24(2)(4) of the Basic Law.  If the 1^st Applicant were correct in her contention that she should be given permission to stay after her change of status application in October 2005, taking into account of her previous stay as visitor after termination of her last FDH employment, the 1^st Applicant will accumulate the requisite seven years’ ordinary residence by July 2012.

83.  According to the evidence of Au Yeung Chun Fai, the Director’s policy on admission of aliens, foreign nationals to join relatives in Hong Kong is the dependant policy (which requires sponsorship by the relative as a Hong Kong permanent resident) and the exception based on strong humanitarian or compassionate grounds.  Whilst I have no problem to the application of the anxious scrutiny standard to a decision of the Director on dependant policy, the application of such standard to the humanitarian exception would go directly against Lau Kong Yung, in particular what was said by Litton PJ at p 339. It is apparent from what Cheung J said at para 98 of MA that His Lordship did not intend to hold otherwise.  

84.  I can now turn to the challenges based on pre-emption of the Director’s power to refuse extension of stay by constitutional rights.  In the light of the immigration reservations and Section 11 of the BORO and the authorities mentioned above, the BoR and ICCPR cannot assist the 1^st Applicant. Thus, it is of no avail that in Winata v Australia UNHCR Doc A/56/40 (Vol II) 199, the majority of the Human Rights Committee found a case of violation of articles 17, 23 (1) and 24(1) of the ICCPR established in respect of “substantial changes to long-settled family life” occasioned by the deportation of two Indonesian parents from Australia despite their giving birth to a child who acquired citizenship there (after living there for 10 years).

85.  There was a strong dissenting judment in that case and, with the greatest respect, I find the criticism in the dissenting opinion compelling. In any event, as observed by Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights, 2^nd edn p 602-604, it is clear from subsequent cases that parents do not have a right to be immune from deportation simply because their minor children are citizens of that State[4]. Winata was so decided because of the length of time the child had spent in Australia with the consequential detriment he would suffer had he been required to leave.

86.  Ms Li submitted that given the history of the 2^nd Applicant’s upbringing in Hong Kong and her ties with her father and half-siblings here the rationale of Winata is applicable.  However, due to Section 11 of the BORO and the immigration reservations, this submission cannot prevail in Hong Kong.  As further elaborated below, in view of Hai Ho-tak the concept of derivative right has no application in Hong Kong.

87.  As regards Article 10 of the ICESCR, the relevant article is 10.1,

“The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. …”

88.  Article 4 of the ICESCR envisages limitations of rights,

“The State Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”

89.  As observed by Stock VP in Kong Yun-ming v Director of Social Welfare CACV 185 of 2009, 17 February 2012, at para 79, in the context of ICESCR, it is always a question of the particular right in issue and what measures are required to fulfil the obligations in respect of that right.  Some obligations are not resource-sensitive whilst some are.  In respect of Article 10.1, what is the widest possible protection and assistance that can be accorded to the family must vary from state/region to state/region, depending not only on the resources of that government but also on the social and economic condition of the state/region.

90.  Article 10(1) cannot be read as a charter for the removal of all immigration controls for parents giving birth to children in a foreign territory.  In light of the special situation of Hong Kong and the immigration reservations in respect of ICCPR and CRC, I agree with Hartmann J’s conclusion in Chan To Foon that Article 10(1) cannot give rise to a legitimate expectation that the Director would not remove the 1^st Applicant.

91.  Turning to Article 37, as I said in Li Nim Han, by reason of the qualification of the enjoyment of rights “in accordance with law” in Article 41, the 1^st Applicant herself cannot rely on this article to override the immigration control imposed by the IO in accordance with Article 154 of the Basic Law.

92.  As regards the construction of Article 37, Ms Li submitted that Li Nim Han and Gurung Deu Kumari were wrong in giving that article a narrow interpretation.  Counsel submitted that such interpretation ignores the context of the relevant body of law relating to family rights and stands in stark contrast to the modern human rights trend which protects family rights in an immigration context.  It is also submitted that the interpretation was against the approach of interpretation of Basic Law in respect of fundamental rights.

93.  With respect, counsel seems to advocate an approach on construction which places greater precedence on overseas or international jurisprudence on family rights over the actual provision of the Basic Law we are dealing with and the local background and context behind such provision.  Counsel also fails to place proper regard to what had been said in the local cases which provide the context for the construction of Article 37 in light of the limitation on protection of family rights under the BoR and ICCPR as embodied in Article 39 and the immigration reservations.

94.  From time to time, submissions were advanced to this Court by reference to European or international authorities without regard to the differences in the context or in the language of the applicable instruments.  Though international authorities can provide valuable guide to the development of our jurisprudence on similar rights, there are areas where it is necessary to pay proper regard to the differences in context and language of the relevant instruments.  The observation of Lord Woolf in Attorney General v Lee Kwong Kut [1993] AC 951 at p 966G to 967A should be borne in mind.  It would be more helpful to the court and the development of common law in Hong Kong if citation of international or overseas authorities is accompanied by proper analysis as to how and why it is argued that such authorities are relevant in the local context with clear identification of the differences in the relevant local statutes or instruments and those applied in such authorities.

95.  It has to be borne in mind that there are discrepancies between the context and the language in different instruments and such discrepancies could be material to the proper construction of the applicable instrument in Hong Kong. Actually, there are differences between the protection afforded to family under the ICCPR and that afforded by the ECHR[5]. It is not right to start with an assumption that simply because broadly speaking all these instruments refer to protection of family, the contents of the protection under all of them are the same.  Indiscriminant citation of overseas authorities as modern trends in international human right laws very often fudges the proper analysis as to whether such overseas authorities are relevant in the Hong Kong context. 

96.  In Li Nim Han and Gurung Deu Kumari, the courts had approached the question of construction in accordance with the approach laid down by the Court of Final Appeal.  In this respect, the judgments in those cases speak for themselves.

97.  Ms Li argued that Article 37 should not be confined to the right to procreate.  Neither Li Nim Han nor Gurung Deu Kumari has so decided.  In those judgments, the courts have held that the right under Article 37 is a right to procreate and to foster children.  But it is not a right to foster children in a particular manner or at a particular place.  Nor is it a right of the family.  The language of Article 37 makes it clear that it is a right conferred upon the parents.  Subject to the need to apply for leave from the Family Court to relocate to the Philippines, there is nothing to prevent the 1^st Applicant from raising the 2^nd Applicant there. The implementation of the immigration policy of the Director does not bar her from fostering the 2^nd Applicant.  It is a matter of her own choice that she preferred the 2^nd Applicant to be raised in Hong Kong.  But Article 37 cannot provide the leverage for improvement of her immigration status.  This must be so in view of the qualification in Article 41 as to the enjoyment of the rights by non-permanent resident in accordance with law and the immigration reservation incorporated by Article 39.  As mentioned above, there are many parents having the same aspiration across the border.  Hong Kong simply cannot cope with the demands of all these parents, thus the implementation of the One Way Permit system and the Two Way Permit system.

98.  Thus, the 1^st Applicant cannot succeed on her own rights.

The right of the 2^nd Applicant

99.  Insofar as Ms Li relies on the rights of the 2^nd Applicant under ICCPR and ICESCR and CRC to derive a right to pre-empt the decision of the Director, the analysis in the context of the 1^st Applicant equally applies.  Further, by reason of the holding by the Court of Appeal in Hai Ho-tak, there cannot be any derivative right to extension of stay in Hong Kong.

100.  Ms Li further relies on the right of abode of the 2^nd Applicant. She submitted that the refusal of the Director to grant extension of stay to the 1^st Applicant is in breach of the 2^nd Applicant’s right of abode as the removal of the 1^st Applicant would deprive the 2^nd Applicant’s right of abode of any meaningful content because she could not remain in Hong Kong alone due to her tender age and the Family Court had granted custody of the 2^nd Applicant to the 1^st Applicant. If the 1^st Applicant were to leave Hong Kong, the 2^nd Applicant would have to leave as well.

101.  Counsel put her submissions in these terms at para 34 of her skeleton submissions,

“… enjoyment by a minor such as Zahrah of her right of abode necessarily implies that the minor is entitled to be accompanied by the person who is her primary carer and the carer shall be in a position to reside with the minor. Insofar as a refusal to grant an extension of stay to Ms Comilang deprives Zahrah from exercising her right to reside in Hong Kong or choose her place of residence by compelling her to reside in the Philippines, the Directors repeatedly an unchangingly made, are each – in effect – an infringement of Zahrah’s right of abode.”

102.  Ms Li cited several European and UK authorities in support of her argument: Chen v Secretary of State for the Home Department [2005]  QB 325; Ruiz Zambrano v Office National de l’Emploi [2011] All ER 491; ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 All ER 783.

103.  There is, however, no analysis in the Form 86 or in the skeleton or oral submission of Ms Li as to how these cases decided in a different statutory context are relevant for Hong Kong.  As Mr Chow SC pointed out, this line of cases followed the decision of the European Court of Justice in Baumbast v Secretary of State for the Home Department [2003] ICR 1347.  Three questions were determined in that case and the relevant one for present purposes is the second question,

“Where children have the right to reside in a host Member State in order to attend general educational courses pursuant to Article 12 of Regulation No 1612/68, that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parents have meanwhile divorced or that the parent who has the status of citizen of the European Union has ceased to be a migrant worker in the host Member State.”

104.  Thus, it was a decision on the interpretation of Article 12 of Regulation No 1612/68, which was in these terms,

“Article 12

The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.”

105.  The relevant discussion of this question is at paras 64 to 75 of the judgment.  Two concepts were alluded to as the context for Article 12: facilitation of movement of members of workers’ families and the integration of the worker and his family into the host State (see para 68).  Further, by reason of Article 12, there was a Community right on the part of the child to complete his education in the host State.  These concepts are built upon Community legislation and statutory instruments which have no equivalence in Hong Kong.  There is also a reference to respect for family life under Article 8 of the European Convention, the language of which is different from the ICCPR, thus the BoR.  Article 8 refers to respect for private and family life whilst Article 14 of our BoR refers to interference with privacy, family, home or correspondence[6]. More importantly, Article 14 cannot avail the Applicants by reason of Section 11 of the BORO, the immigration reservation and Article 39(2) of the Basic Law.

106.  The ratio of the case can be found at para 73 of the judgment,

“The right conferred by Article 12 of Regulation No 1612/68 on the child of a migrant worker to pursue, under the best possible conditions, his education in the host Member State necessarily implies that that child has the right to be accompanied by the person who is his primary carer and, accordingly, that that person is able to reside with him in that Member State during his studies. To refuse to grant permission to remain to a parent who is the primary carer of the child exercising his right to pursue his studies in the host Member State infringes that right.”

107.  Therefore, Baumbast was a decision on a legislative and statutory regime which has no force in Hong Kong.

108.  In Chen v Home Secretary [2005] QB 325, the ECJ expanded the rationale of Baumbast to hold that a parent could establish a derivative right of residence based on the child’s right to reside in a host member state. At para 45 of the judgment, the court said,

“On the other hand, a refusal to allow the parent, whether a national of a member state or a national of a non-member country, who is the carer of a child to whom article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host member state, would deprive the child’s right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host member state for the duration of such residence: see, mutatis mutandis, in relation to article 12 of Regulation No 1612/68, Baumbast v Secretary of State for the Home Department …”

109.  Directive 90/364 (set out at para 5 of the judgment) is a detail code regarding residence rights for family members of nationals of the European Union.  Article 18 of the Treaty establishing the European Community provides for the right to move and reside freely within the EU (see para 2 of the opinion of the Advocate General).  As appeared from para 27 of the judgment, the relevant EU statutory regime includes article 1(1) of Directive 90/364 ensuring that the persons who seek to be benefit from the right to reside and their family members can be required to demonstrate that they have sufficient resources to avoid becoming a burden on the social assistance system of the host member state.  On the facts of that case, the applicants were able to demonstrate that, see para 28 of the judgment.  Hong Kong does not have a similar statutory regime.

110.  Though the rationale of the ECJ in holding that the mother, as the main carer, should be given the right of residence does not depend on Directive 90/364 (as the ECJ held that she did not fall within its scope, see paras 42 to 44 of the judgment), the assurance provided by article 1(1) of Directive 90/364 was part of the background leading to the expansion of ratio of Baumbast in Chen.  This is apparent from the answer given at para 47 of the judgment.  Further, Directive 90/364 shows that the European jurisprudence stemmed from a background with statutory regimes for the rights of residence for family members of nationals as opposed to our immigration control based on the exercise of unfettered discretion on the part of the Director.

111.  For present purposes, the judgment of the recent case of Ruiz Zambrano does not take the matter further.

112.  In Hong Kong, we must consider the question of derivative right in favour of the 1^st Applicant based on the right of abode of the 2^nd Applicant by construing Article 24 in the context of the Basic Law.  Due to the absence of similar statutory regime as in Europe and the different emphasis placed on immigration control in Hong Kong (as explained in the local cases cited earlier), I do not find the European jurisprudence to be of much assistance.

113.  As for ZH (Tanzania) v Secretary of State of the Home Department [2011] 2 All ER 783, for the reasons I gave in Li Nim Han v Director of Immigration HCAL 36 of 2011, 14 November 2011, I do not think the approach of the English Supreme Court can be applied in Hong Kong.

114.  I agree with Mr Chow that the substance of the right conferred on the 2^nd Applicant under Article 24 has to be construed in the context of the Basic Law as a whole and the relevant legislative history, including,

(a)     Article 154 with regard to immigration control;

(b)    Article 39 reading together with the immigration reservations;

(c)     The genesis of the concept of right of abode in 1987;

(d)    The theme of continuity and the pre-existing immigration policy vis-à-vis admission of non-permanent resident to Hong Kong at the time when the Basic Law was promulgated.

115.  Enough have already been said in this judgment regarding (a) and (b).  As regards (c), I traced the historical development leading to the legislative amendments to the Immigration Ordinance in 1987 in my judgment in Vallejos Evangeline Banao v Commissioner of Registration HCAL 124 of 2010, 30 Sept 2011 at paras 42 to 52.  The right was defined in Section 2A of the Ordinance, viz the right to land in Hong Kong, the right not to have imposed upon him any condition of stay, and the right not to be deported or removed.  There is nothing in that legislative process which suggests a right of abode of a child would carry with it the derivative right of residence on the part of his or her primary carer.

116.  The pre-existing immigration policy did not recognize any derivative right of residence, see R v Director of Immigration, ex p Chan Heung Mui (1993) HKPLR 533.  Hai Ho-tak v Attorney General [1994] 2 HKLR 202 also forms part of the pre-existing state of law before the enactment of the Basic Law.  It has always been a matter of unfettered discretion of the Director in terms of humanitarian considerations, which is not reviewable in court.

117.  Apart from the right of abode, the 2^nd Applicant as permanent resident of Hong Kong also enjoys other rights safeguarded by the Basic Law.  However, as far as her right to non-interference with her family is concerned, this is provided by the BoR and restricted by Section 11 of the BORO.  Article 37 is of no avail to her because even in the English version it refers to the “right to raise a family”, as such a right belonging to the parents, instead of a “right to be raised”.

118.  Against such context, I do not see any room for contending any form of derivative right of residence as a matter of proper construction of Article 24.

119.  This conclusion can be tested by examining the ramifications of admitting any form of derivative right of residence (as opposed to a discretionary humanitarian consideration).  Mr Chow postulates the following at para 37 of his skeleton submission,

“If the contention that A2, in order to enjoy her right of abode, is entitled as a matter of law to be accompanied by her primary carer (A1) in Hong Kong is correct, this would mean that Al must be permitted to reside in Hong Kong for up to 18 years during the minority of A2, in the course of which Al may also be able to acquire the right of abode in Hong Kong under BL24(2)(4). The logic of this contention, if it is sound, would also apply to all children born in Hong Kong whose parents are both Chinese citizens but (a) neither has the right of abode in Hong Kong or (b) only one of them has the right of abode in Hong Kong but that parent with the right of abode is not the primary carer, and potentially to other situations where the persons having the right of abode are in need of care (eg people suffering from disabilities, old people, etc) by other persons who have no right of abode. This contention needs only to be stated to be rejected.”

120.  I cannot find any answer to Mr Chow’s argument with regard to the other types of permanent residences who need others to take care of them from the European and the HRC jurisprudence.  As a matter of logic, and also in light of the right to equality under Article 25 of the Basic Law, as presently advised, I have to agree with Mr Chow.

121.  To distinguish the present case from those Chinese nationals born in Hong Kong with neither parents being Hong Kong permanent residents, Ms Li placed emphasis on the history of the 2^nd Applicant’s upbringing and her social connection with her father (who is a permanent resident) and half-siblings in Hong Kong.  But one still needs a viable jurisprudential basis for contending that such nexus with Hong Kong is sufficient to elevate her right of abode to a derivative right of residence for the 1^st Applicant.  For the reasons already given, I cannot find such basis in terms of Hong Kong law.  Actually, the more one ponder on these issues, the more readily one can see that it is after all a matter of humanitarian consideration in substance.  As to that, the Court of Final Appeal in Lau Kong Yung had ruled out any possibility for judicial review.

122.  The Applicants cannot succeed by reference to the rights of the 2^nd Applicant.  Having come to this conclusion, it is not necessary for this court to come to any conclusion on the impact of the refusal of the 1^st Applicant’s extension of stay on the future of the 2^nd Applicant.  I must however record that I do not accept the submission that the 2^nd Applicant must leave Hong Kong together with the 1^st Applicant simply because custody has been granted to the 1^st Applicant.  The Family Court has jurisdiction to reconsider the question of custody when the 1^st Applicant has to leave Hong Kong.  One option is to grant custody to the father.  Another option is to grant leave to relocation.  It is entirely a matter for the Family Court to decide in view of the prevailing circumstances and the best interest of the child.

Reasons given in the letter of 17 March 2010

123.  In her oral submissions, Ms Li criticized the reasons given in the letter of 17 March 2010 for rejecting her application for remaining in Hong Kong to look after the 2^nd Applicant.

124.  The Director referred to the 1^st Applicant’s case not meeting the dependant policy.  He also referred to the lack of strong compassionate ground to justify exceptional consideration.

125.  In light of Lau Kong Yung, I agree with Mr Chow that the Director was not obliged to give reasons for coming to his conclusion on compassionate ground.  In any event, in view of what I said at paras 79 to 80 above, this is not a ground that can be relied upon in this judicial review.

Result

126.  The application for judicial review is dismissed.  I also order, by way of costs order nisi, that the Applicants shall pay the costs of the Commissioner and the Director.