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Long-running ROA case to be heard anew

04 July 2017

By Daisy CL Mandap

Two cases centred on whether a non-resident guardian of a minor child with right of abode in Hong Kong could be allowed to remain in the territory is due to come before the Court of Appeal again on July 10.

Solicitors for both sides appeared at the Court of Appeal early in June on an application by the applicants for leave to submit fresh evidence. The application was, however, denied by CA’s Vice President Vincent Lam and Justice Jeremy Poon on June 28.

The first case dates to as far back as 2007, when Milagros Tecson Comilang, a former domestic helper, sought leave for a judicial review against the Immigration Director’s decision rejecting her application to remain in Hong Kong and look after her then one-year old daughter, Zahrah Noor Ahmed.

The second was filed by Desiree Rante Luis, also a former domestic helper, who likewise seeks to remain in Hong Kong to look after her three children, David John, now 15 years old; Carl Benz, 13; and Mark Joely, 6.

In the first case, Zahrah, now 11, was born after Comilang and Pakistani permanent resident Shaker Ahmed were married in 2005. The girl was born pending the approval of Shaker’s application for a dependant’s visa for Comilang. Shortly afterward, Comilang learned that Shaker was already married, and the marriage broke down.

Comilang eventually filed an application for judicial review with the High Court in April 2011 against the Director’s decisions since 2007 to refuse her application for extensions of stay. The CA remitted the case to the Director for fresh considerations.

However, on Sept 2, 2013 the Director again refused Comilang's application, saying there were no exceptional circumstances to justify an exercise of discretion on humanitarian or compassionate ground.

Comilang’s solicitors referred the case back to the CA with an application for leave for judicial review, which was granted in June 2014.

In the second case, Desiree Luis gave birth to the three children in Hong Kong while married to someone referred to in earlier court documents only as “Mr Luis.” All children have studied in Hong Kong since birth and were under Mrs Luis’ care.

Between 2006 and 2011, Mrs Luis shuttled between Hong Kong and the Philippines 24 times, and on each occasion, was granted extensions of stay in Hong Kong. But on Jan. 26, 2012, the Immigration Director refused her application for extension of stay to look after her minor children. She then overstayed, but the Director “tolerated” her presence as shown by several letters issued periodically.

With help from solicitors, she again applied for permission to remain on May 6, 2013, but this was refused by the Director on July 26 that same year, saying he did not find the application in line with immigration policy. He also did not find any grounds to justify the application on humanitarian or compassionate grounds.

In May 2014, Mrs Luis again applied for leave for judicial review, and the same was granted two months later.

The High Court, through Justice Thomas Au, heard both cases over three days in December 2014. More than a year later, he dismissed anew the application to review the Director’s decision, and dismissed all applications to grant extension of time to the applicants.

Justice Au also ruled that his order should become absolute 28 days after the decision was handed down.

Both cases were again raised to the Court of Appeal, where they will be heard over 5 days from July 10.

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