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FAMV Nos.39 and 40 of 2018
[2018] HKCFA 53
FAMV No. 39 of 2018
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 39 OF 2018 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV NO. 59 OF 2016)
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BETWEEN
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COMILANG, MILAGROS TECSON
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1st Applicant
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AHMED, ZAHRAH NOOR, a minor,
by her next friend and mother
COMILANG, MILAGROS TECSON
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2nd Applicant
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and
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DIRECTOR OF IMMIGRATION
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Respondent
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FAMV No. 40 of 2018
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 40 OF 2018 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV NO. 60 OF 2016)
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BETWEEN
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LUIS, DESIREE RANTE
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1st Applicant
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LUIS, DAVID JOHN RANTE, a minor, by his next friend and mother,
LUIS, DESIREE RANTE
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2nd Applicant
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LUIS, CARL BENZ RANTE, a minor,
by his next friend and mother,
LUIS, DESIREE RANTE
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3rd Applicant
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LUIS, MARK JOELRY RANTE, a minor,
by his next friend and mother,
LUIS, DESIREE RANTE
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4th Applicant
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and
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DIRECTOR OF IMMIGRATION
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Respondent
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Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Fok PJ and Mr Justice Stock NPJ
Date of Hearing and Determination: 7 November 2018
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DETERMINATION
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Mr Justice Ribeiro PJ:
1. We are satisfied that the following questions are of great general or public importance which ought to be submitted to the Court for decision, and grant leave to appeal confined thereto, namely:
When a parent applicant, who is a foreign national with no right of abode in Hong Kong, makes an application for permission to remain in Hong Kong to take care of his/her minor child, who is a HKSAR permanent resident having the right of abode in Hong Kong, whether the Director of Immigration in considering the application is obliged, as a matter of law, to take into account the parent-and-child family’s enjoyment of applicable fundamental rights while living in Hong Kong. (Question 1)
Whether section 11 of the Hong Kong Bill of Rights Ordinance (Cap 383) exempts the immigration authorities from having to take into account rights protected under the Basic Law of a child member of the family, when decisions are made by immigration authorities under immigration legislation in respect of the non-Hong Kong resident family member impacting on the integrity of the family and the enjoyment of family life in Hong Kong. (Question 2)
2. We consider Questions 3 and 4 referred to in Form B merely to raise aspects of Question 1 and thus not independently to merit the grant of leave.
3. Similarly, we consider that Question 5 raises questions associated with Question 2 and so does not merit independent treatment.
4. We do not consider Question 6 a fruitful question since extensions of time necessarily raise fact specific discretionary issues including any legal aid delays. In any event, in the present case, the substantive arguments have been fully dealt with, so that the question is academic.
5. The appeal will be heard on 28 February 2019.
(R A V Ribeiro)
Permanent Judge |
(Joseph Fok)
Permanent Judge |
(Frank Stock)
Non-Permanent Judge |
Ms Gladys Li SC and Mr P.Y. Lo, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the 1st and 2nd Applicants in FAMV 39/2018 and the 1st to 4th Applicants in FAMV 40/2018
Mr Abraham Chan SC and Mr Jonathan Chang, instructed by the Department of Justice, for the Respondent in FAMV 39 & 40/2018
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