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CACV 183/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 183 OF 2012
(ON APPEAL FROM HCAL NO. 28 OF 2011)
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BETWEEN
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COMILANG MILAGROS TECSON, also known as COMILANG MILAGROS T. |
1st Applicant |
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AHMED ZAHRAH NOOR, a minor by COMILANG MILAGROS TECSON, her mother and next friend |
2nd Applicant |
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and |
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COMMISSIONER OF REGISTRATION |
1st Respondent |
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REGISTRATION OF PERSONS TRIBUNAL |
2nd Respondent |
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DIRECTOR OF IMMIGRATION |
3rd Respondent |
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| Before: Hon Cheung CJHC, Stock VP and Fok JA in Court |
| Date of Hearing: 16 April 2013 |
| Date of Handing Down Judgment: 2 May 2013 |
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J U D G M E N T
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Hon Cheung CJHC:
1. I agree with the judgment of Fok JA and the orders he proposes.
Hon Stock VP:
2. I agree with the judgment of Fok JA and with the orders which he proposes.
Hon Fok JA:
3. This is an appeal against the judgment of Lam J (as he then was) dated 15 June 2012 whereby he dismissed the 1st and 2nd appellants’ application for judicial review of various decisions of the Director of Immigration (the Director).
The background facts
4. The 1st appellant in this appeal is the mother of the 2nd appellant, who was born in Hong Kong in 2006 and is now aged 7. The 2nd appellant’s father is a non-Chinese national and a Hong Kong permanent resident (HKPR) under BL24(2)(4) and, by virtue of her birth in Hong Kong and her father’s HKPR status, the 2nd appellant is also a HKPR under BL24(2)(5).
5. The 1st appellant was previously employed as a foreign domestic helper (FDH) in Hong Kong. Her last FDH contract came to an end on 13 July 2005 and she was permitted to remain in Hong Kong as a visitor until 10 October 2005.
6. Since she was not granted an extension of stay after the expiry of her limit of stay on 10 October 2005, the 1st appellant’s presence in Hong Kong as from 11 October 2005 has been without the permission of the Director and she has thus been liable to prosecution under s. 41 of the Immigration Ordinance (Cap. 115) and removal.
7. The 1st appellant married the 2nd appellant’s father (the father) on 7 October 2005 and, on 10 October 2005, applied to change her immigration status to that of a dependant of the father. However, the marriage broke down and in 2007 the father withdrew his sponsorship of the 1st appellant as his dependant. Notwithstanding this, the 1st appellant maintained her change of status application to the Director. On 7 September 2007, the Director notified the 1st appellant that her change of status application was refused.
8. After the refusal of her change of status application, the 1st appellant applied on numerous occasions for extensions of stay in Hong Kong. The first such request for extension of stay was made on 20 September 2007. The basis of the requests for extension during the period from late 2007 until May 2009 was primarily to enable the 1st appellant to pursue Family Court proceedings against the father. Each such request was refused by the Director but her presence in Hong Kong was tolerated, provided there was no adverse record against her.
9. On 2 June 2009, the Family Court granted the 1st appellant custody, care and control of the 2nd appellant with reasonable access to the father. In November 2011, the father petitioned for and, in November 2012, obtained a decree of nullity of the marriage between him and the 1st appellant on the ground that he was, at the time of the marriage to the 1st appellant, already married.
The 9 June 2009 application
10. On 9 June 2009, the 1st appellant wrote to the Director in the following terms:
“I Comilang Milagros Tecson … 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.
Thank you for your kind consideration.”
She added at the foot of the letter:
“I want to be her guardian to look after her and support her needs and everything.”
11. The Immigration Department understood the 1st appellant’s application dated 9 June 2009 to be of a different character to that of the previous extension of stay applications. In his affidavit in these proceedings, Mr Au Yeung Chun Fai Samuel, a Chief Immigration Officer of the Extension Section, stated:[1]
“[This application] was the very first time the 1st [appellant] stated that she wanted to stay in Hong Kong to take care of the 2nd [appellant]. Given the different circumstances of the [application], the Director treated it both as a request for extension of stay and an application to remain in Hong Kong to take care of the 2nd [appellant].”
12. For that reason, there were two responses from the Director to that letter. The first in time was a letter dated 9 June 2009 headed “Application for Delaying Departure” in which the Director refused to grant the 1st appellant an extension of stay and requiring her to make departure arrangements on or before 23 June 2009 but indicated that her presence in the meantime would be tolerated on the usual proviso of no adverse record against her. Mr Au Yeung describes[2] that letter as the Director’s response to the application insofar as it was a request for extension of stay.
13. The second response was dated 17 June 2009 and was headed “Request to remain in Hong Kong”. This letter stated:
“I refer to your captioned requisition made on 9 June 2009.
To facilitate our consideration of 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”.
Each of the boxes in the letter was ticked, indicating that the specified documents were required. Mr Au Yeung describes[3] that letter as having been written on behalf of the Director insofar as the application was treated as an application to remain in Hong Kong to take care of the 2nd appellant.
14. On 23 June 2009, the 1st appellant replied to the 17 June 2009 letter indicating she was still preparing the required documents and asking for an extension of stay.
15. On the same date, the Director wrote refusing an extension of stay and requiring the 1st appellant to make departure arrangements on or before 7 July 2009 but indicated that her presence in the meantime would be tolerated on the usual proviso.
16. On 3 July 2009, the 1st appellant’s solicitors wrote to the Director requesting another 14 days to submit the required documents.
17. On 7 July 2009, the 1st appellant wrote to the Director enclosing the documents required and asking for an extension of stay whilst awaiting the Director’s decision. Amongst the documents enclosed was a detailed letter from the 1st appellant to the Director dated 7 July 2009 providing details of the personal circumstances of the 1st appellant and her daughter, the 2nd appellant. The letter stated that the 2nd appellant’s right of abode in Hong Kong had been confirmed and enclosed a copy of her birth certificate in support. The letter also provided details of the 1st appellant’s future plans (viz. “to remain in Hong Kong so that I can work here to support my daughter and myself”). Her future plans for the 2nd appellant’s schooling and living in Hong Kong were also described.
18. On 17 March 2010, the Director wrote to the 1st appellant in response to the 1st appellant’s application to remain in Hong Kong to take care of the 2nd appellant.[4] The letter was in the following terms:
“ 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.”
19. Thereafter there were further applications by the 1st appellant for extensions of stay. In each case they were refused but the 1st appellant’s presence in Hong Kong was tolerated subject to the usual proviso.
Proceedings before ROPT and this judicial review
20. In April 2010, the 1st appellant’s appeal to the Registration of Persons Tribunal (ROPT) against the Director’s refusal to issue a permanent identity card to her was heard and the ROPT’s determination dismissing her appeal was given on 4 June 2010.
21. On 19 April 2011, the 1st and 2nd appellants applied for judicial review (in HCAL 28/2011) and on 19 May 2011, Lam J granted leave to apply for judicial review on the papers and, as noted above, by his judgment dated 15 June 2012 he dismissed that substantive application.
22. The decisions which were the subject of the judicial review were, broadly, of two categories. The first were the decisions of the Director and the ROPT refusing to recognise the 1st appellant as a HKPR with right of abode in Hong Kong. The challenge to those decisions is no longer pursued in the light of the decision of the Court of Final Appeal in Vallejos v Commissioner of Registration FACV 19/2012.[5]
23. The second group of decisions is compendiously described as various decisions of the Director from 20 September 2007 onwards refusing the 1st appellant’s applications for extension of stay. The Form 86 Notice identifies these decisions, which includes the Director’s decision by his letter dated 17 March 2010.
24. On behalf of the appellants, Ms Gladys Li SC submitted that the Director’s refusals to grant the 1st appellant’s extensions of stay are illegal and in breach of the 2nd appellant’s right of abode because they deprive the 2nd appellant’s right of abode of any meaningful content. Further, she argued that the Director erred in failing to consider the 2nd appellant’s right of abode when he refused the 1st appellant’s applications for extension of stay.
25. Various bases are advanced for these arguments including reliance on rights under various constitutional and human rights instruments[6], the common law jurisdiction of the best interests of the child (parens patriae) and legitimate expectation.
26. In his submissions on behalf of the Director, Mr Anderson Chow SC acknowledged that he could not advance a case that, in considering the 1st appellant’s application of 9 June 2009, the Director had taken the 2nd appellant’s right of abode into account. Instead, his submissions focused on the absence of any legal duty on the part of the Director to do so when exercising his discretion under s. 11 of the Immigration Ordinance.
Discussion
27. The 1st appellant’s application dated 9 June 2009 was undoubtedly for more than just an extension of stay. I have set out the terms of her letter to the Director dated 9 June 2009 above and referred to the fact that the Director treated the application as being of a two-fold nature. That much is clear from the Director’s letters in response to the 9 June 2009 application and also from the evidence of Mr Au Yeung to which I have referred.
28. Insofar as it was treated as an application for permission to remain to look after the 2nd appellant, the Director’s approach to that application is explained by Mr Au Yeung in his affidavit in the following terms:
“The 1st [appellant’s] Application to Remain in Hong Kong to take care of the 2nd [appellant]
43. Having considered the 1st [appellant’s] application to remain in Hong Kong as the dependant of the 2nd [appellant] to take care of the 2nd [appellant] (Exhibit ‘AYCFS-56’) in the light of the 1st [appellant’s] submissions and supporting documents (Exhibit ‘AYCFS-61’) under the existing policy on entry of dependants and all the circumstances of the case, the Director was not satisfied that the 1st [appellant] met the eligibility criteria of the dependant policy to join the 2nd [appellant] as her dependant in Hong Kong.
44. Under the Government’s policy on entry of aliens, foreign nationals may be allowed to join relatives in Hong Kong as dependants in appropriate cases. Under the Dependant Policy as revised and came into force since 1 July 2003, for a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay, only the following dependants may apply to join him/her for residence in Hong Kong (a) his/her spouse; (b) his/her unmarried dependent children under the age of 18; and (c) his/her parent aged 60 or above. Further, the sponsor will have to be able to support the dependant’s living well above the subsistence level and provide him/her with a suitable accommodation. While the Dependant Policy will facilitate family reunion, its purpose and underlying rationale is to allow these categories of close family members to remain in Hong Kong when they require the care and financial support of their sponsors in Hong Kong. As such, dependency is an essential element of the policy. An exception to the policy may only be made where there are strong humanitarian or compassionate grounds.
45. The 1st [appellant] did not satisfy the requirements under the Dependant Policy because she was not at or over the age of 60 to be allowed to come or remain in Hong Kong to join the 2nd [appellant] as her dependant and that her purpose of taking up residence in Hong Kong was to join the 2nd [appellant] as her dependant. It was also not satisfied that the 2nd [appellant] was able to support her living as a standard well above the subsistence level. Based on the available information, ImmD also did not find any strong compassionate ground justifying an exceptional consideration on her case.
46. Accordingly, the Director refused to grant the 1st [appellant] permission to remain as the 2nd [appellant’s] dependant by a letter dated 17 March 2010, a copy of which is now produced and shown to me and marked as Exhibit ‘AYCFS-114’.”
29. Taking the affidavit at face value, it will be immediately apparent that there is no correlation between how the application was supposedly understood, namely the 1st appellant’s application to remain in Hong Kong to take care of the 2nd appellant, and how (according to the affidavit evidence) it was actually dealt with by the Director. This is demonstrated most obviously by the opening sentence of paragraph 43 of Mr Au Yeung’s affidavit in which it is clear the Director approached the application as being that of the 1st appellant “to remain in Hong Kong as the dependant of the 2nd [appellant] to take care of the 2nd [appellant]”. That statement is inherently self-contradictory: the 1st appellant, as the mother of the 2nd appellant, was not seeking to remain as a dependant of her 7-year old daughter, who was self-evidently not in a position to support her mother, since the mother was applying to stay to take care of the daughter.
30. On that footing, the Director’s application of the Dependant Policy to the situation was therefore plainly fundamentally misconceived. There could be no basis for that policy to apply here. The 2nd appellant is dependant upon her mother, the 1st appellant, and not the other way around. In the circumstances, treating the 2nd appellant as a “sponsor” for the purposes of the Dependant Policy is illogical. Having been presented with an application which was a “square peg”, the Director was in effect seeking to ascertain if that peg would fit in the “round hole” of his Dependant Policy.
31. This is amply demonstrated by the terms of paragraph 45 of Mr Au Yeung’s affidavit. The first sentence of that paragraph explains that the 1st appellant was considered not to satisfy the Dependant Policy for three reasons: first, as a parent seeking to join a daughter in Hong Kong, she was not over the age of 60; secondly, the purpose of her taking up residence in Hong Kong was not for her to join her daughter as her dependant; thirdly, her daughter could not demonstrate that she was able to support her mother at a standard well above the subsistence level. But the simple fact remains that the 1st appellant was not seeking to take up residence in Hong Kong to be the dependant of the 2nd appellant and so all of these considerations were nothing to the point.
32. The concluding paragraph, paragraph 46, of Mr Au Yeung’s affidavit expressly demonstrates that the 1st appellant’s application of 9 June 2009 was in fact rejected on an apparently misconceived basis, since it was rejected as if it were an application to remain as the 2nd appellant’s dependant.
33. On the other hand, Mr Chow suggested in argument that, in the Director’s decision letter dated 17 March 2010 (set out above), what the Director was there saying is that the only circumstance, strong compassionate grounds aside, in which a non-resident person may be allowed to remain in Hong Kong to join a resident relative is in circumstances of dependancy of the particular applicant and that it was because the 1st appellant fell outwith that policy that the application was rejected.
34. However, that argument is fundamentally inconsistent with the description of the decision-making process in the affidavit. An affidavit by a respondent to an application for judicial review is core evidence by which the respondent explains his or her decision-making process and reasoning in a particular case and, although an affidavit is to be read realistically, a court is entitled to expect the reasoning to be clearly expressed and, when it is clearly expressed, to assume that the deponent means what he or she says. That expectation flows from the serious nature of the instrument (an affidavit or affirmation) and also from the requirements of good administration. In this particular case, the deponent has stated in terms that the application by the mother was an application “to remain in Hong Kong as the dependant of the 2nd [appellant]”. Indeed, the deponent has twice expressly so asserted. It is not this Court’s function to turn those repeated assertions on their head and assume that the deponent did not mean what he said.
35. Even on the basis of Mr Chow’s own argument, there is at least an ambiguity in the Director’s case as to how the decision was reached. Was the affidavit evidence clumsily saying that which it is argued the letter was saying? Or, was the affidavit evidence contradicting that argument by making it clear – as we think it does – that the application was in fact treated as an application to remain as a dependant of the daughter?
36. On either view, it would not be appropriate for this Court to proceed on the assumption that the 1st appellant’s application was treated for what it actually was, namely, an application to remain in Hong Kong to look after her daughter, a HKPR, rather than an application to come to Hong Kong as the 2nd appellant’s dependant. If and insofar as the letter dated 17 March 2010 is inconsistent with the affidavit explanation, it is not for this Court to resolve the ambiguity. Insofar as the affidavit twice – without qualification or explanation – asserts that it was an application to remain as a dependant of the daughter, there seems to me to be no basis upon which this Court can justifiably ignore the assertion or treat it as an assertion to a different effect.
37. In these circumstances, it follows that the Court is simply not in a position to know how the Director might respond to the application which was in fact made.
38. On this straight forward basis, the 1st appellant’s judicial review must, in my view, succeed and the Director’s decision in the letter dated 17 March 2010 must be quashed and the 1st appellant’s application dated 9 June 2009 remitted to him for a fresh decision to be taken on the basis of the true nature of the application.
Conclusion
39. I would therefore allow the 1st appellant’s appeal on the narrow basis that the Director’s decision dated 17 March 2010 is quashed and the 1st appellant’s application dated 9 June 2009 to remain in Hong Kong to take care of the 2nd appellant remitted to the Director for him to make a fresh decision on it.
40. The disposition of the appeal on this basis means that the other legal arguments addressed to us in the course of the appeal do not fall to be considered. Many of those arguments addressed to us raise questions of some importance. Some are covered by authorities directly, whilst some are not. Some of the authorities are binding on this Court, whilst others are not. Since any views this Court would express on them would be obiter, I do not think it would be appropriate to address those arguments in this judgment.
41. I would make an order nisi that the costs of this appeal and below be paid by the Director to the 1st and 2nd appellants, to be taxed if not agreed, with a certificate for two counsel. The 1st and 2nd appellants’ costs are to be taxed in accordance with the Legal Aid Regulations.
Hon Cheung CJHC:
42. Accordingly the appeal is allowed and the re-amended order made below is set aside. We order that the respondent’s refusal of the 1st appellant’s application to stay in Hong Kong to take care of the 2nd appellant be brought up and quashed and that the application be remitted to the respondent for a fresh determination. We also make an order nisi on costs in terms of paragraph 41 above.
(Andrew Cheung)
Chief Judge of the
High Court |
(Frank Stock)
Vice-President
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(Joseph Fok)
Justice of Appeal
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Ms Gladys Li SC and Mr P Y Lo, instructed by Daly & Associates, assigned by Director of Legal Aid., for the 1st and 2nd Applicants / Appellants
Mr Anderson Chow SC and Ms Eva Sit, instructed by the Department of Justice, for the 3rd Respondent / Respondent
[1] Affidavit dated 11 August 2011 at §29.
[2] Affidavit §30.
[3] Affidavit §31.
[4] See Mr Au Yeung’s affidavit at §§43-46.
[5] Judgment dated 25 March 2013.
[6] Namely: articles 37 and 39 of the Basic Law (BL); articles 14, 19(1) and 20(1) of the Hong Kong Bill of Rights (BOR); articles 17, 23(1) and 24(1) of the International Covenant on Civil and Political Rights (ICCPR); article 10 of the International Covenant on Economic Social and Cultural Rights (ICESCR); and articles 1 to 7, 9 and 18 of the Convention on the Rights of the Child (CRC).
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