MASTER ZHANG CHAOJIE AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 5/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 5 OF 2000

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J U D G M E N T

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1. This is an application by both applicants for leave to judicially review the decision of the Director of Immigration who refused to exercise a discretion to allow the 1st applicant, a young boy, to join his mother in Hong Kong, the mother having been granted resident status in July of last year.

2. Insofar as the application by the 2nd applicant, the mother, is concerned, in the light of the authority, particularly the case of Hai Ho-tak and Chan Chun-heung, I am not persuaded at all that she has any independent right to seek to quash the decision of the director refusing to allow the boy to join her in Hong Kong. Indeed, if the court were to allow locus to anyone who may be affected by a decision of the director to make application directly and independently to the court, the court will probably be swarmed with applications by all sort of affected parties.

3. I have not the slightest hesitation in refusing leave to the mother for judicial review, of the decision in this case.

4. Insofar as the application by the child is concerned, the court has been drawn to the decision of Cheung J in Chan Mei-yee's case, in which he granted leave in a similar situation allowing the mother leave to challenge the decision of the director who refused to allow her to stay in Hong Kong to join her daughter who appears to be seriously ill. The grounds for granting leave in that particular case was that Cheung J considered it right for the court to explore the impact and effect of the International Covenant on Civil and Political Rights and the Convention on the Right of the Child insofar as the director's exercise of discretion is concerned.

5. I do not wish to go into too great a detail in this particular case, firstly because it is sub judice as the matter is still being pursued. But I think it is right for me to point out that when Cheung J granted leave his attention appeared not to have been drawn to the reservations as contained in the ICCPR and the International Covenant on the Right of a Child. I do not wish to be disrespectful but I do not consider Cheung J's decision in that particular case is of too much significance in my deliberation as the applicant in that case was unrepresented.

6. At this stage of the proceedings, bearing in mind the threshold that the applicant has to satisfy me is a very low one, I only need to consider whether there are any matters which are fit to be further explored or investigated.

7. I am able to say that I am not persuaded that the applicant can rely on the provision of the ICCPR, nor the provisions in the International Covenant on the Right of a Child to assist his case. It appears, although the facts are not too clear, that the mother and the child in fact came to Hong Kong together and, while they were in Hong Kong, the father was able to divorce the mother and the custody of the child was granted to the mother. The mother and the child of course have been living in Hong Kong as a family unit. The child of course is now studying in Hong Kong.

8. The circumstances in which the mother had been granted the right to reside in Hong Kong is not too clearly known at this stage except that it appears not to be in dispute that she was only granted the right to reside in Hong Kong in July of last year, that is subsequent to the interpretation of Article 22 and 24 of the Basic Law which no doubt will affect significantly the position of the mother and people in a similar situation.

9. At this stage of the proceedings, of course, I do not have any information from the director as to the circumstances in which the mother was granted resident rights, whether she was granted the right in accordance with a claim to be entitled as a Hong Kong permanent resident under Article 24 of the Basic Law, or whether she was entitled to the benefit of the decision of the Court of Final Appeal on 29 January by reason of the concession made by the Chief Executive in a public announcement subsequent to the decision of the Court of Final Appeal and the interpretation of the NPC on 10 June.

10. It is not without some hesitation that I am of the view that the entire circumstances in which the mother has been granted the resident right should be explored. Perhaps the director will see fit in the affirmation in opposition of the application to set out the circumstances in which that particular matter was resolved and perhaps also set out the relevant consideration pertaining to his decision regarding the child.

11. It is on that basis, and as I said, it is not without some reservation that I feel that in order to do justice to the 1st applicant, this matter ought to be explored further and it is on that basis that I will grant leave to the 1st applicant to proceed with the judicial review application.

12. The order I make is therefore leave is granted to the 1st applicant for judicial review but the 2nd applicant's application is refused.

13. Costs will be reserved and I think probably one day will be adequate for the full argument of this matter.