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Top court reserves judgment on family rights of resident minors

26 July 2017

By Daisy CL Mandap

The Court of Appeal has reserved its judgment in a long-running case involving minor children who are Hong Kong permanent residents seeking to reverse the Director of Immigration’s decision denying their non-resident parents the right to remain here.

Three separate cases were heard in the landmark case from July 10-12 by a full court led by Chief High Court Judge Andrew Cheung and Justices Johnson Lam and Jeremy Poon.

Before them were cases brought by Filipinos Milagros Tecson Comilang on behalf of her minor child Zarah Noor Ahmed; and Desiree Rante Luis for her three minor sons: David John, Carl Benz and Mark Joelry. A third case was filed by Mali national Salifou Dembele and his wife, Huang Luyun, a Hong Kong permanent resident, along with their 5-year old daughter.

A key issue in the case is whether the Basic Law, specifically Art 37 which provides Hong Kong residents the right to enter into marriage and “raise a family freely” could be invoked by the minor children to keep their non-resident parents with them.

Art 39 of the Basic Law was also cited by the appellants through their lawyer, Gladys Li, SC, in challenging the Immigration Director’s decision.

The said article provides that “The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law”. Such restrictions, said the article, shall not run counter to the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong.

Li said that taken together, these two laws imposed a duty on the Director to protect the appellant’s family rights. He should not, by law, be allowed to use his discretion in deciding whether the parents should be allowed to stay.

“The essential point of the three cases is whether the Director has a legal obligation, when making decisions that will impact family members...that he is legally bound to do something about family rights,” said Li.

She said the issue was not just money, but the parental care that the minor children need while growing up. She cited as an example the case of a daughter going through her first menstrual period with no mother around to ease her concerns.

Also cited was the possibility that the children could lose their right of abode if they were taken out of Hong Kong and are not able to return within the required three years.

Li said granting that the children could be brought to the Philippines or wherever their parents have residency, “would they have the same benefits, like free education and free medical care” as in Hong Kong.

In reply, Benjamin Yu, SC, for the Director, said art 37 of the Basic Law is “not engaged” or does not apply in the case. Neither does art. 39

“If article 39 is not engaged, what is the correct approach?”, said Yu. “A decision maker (like the Director) is only bound by relevant statutes.”

In this case, he said it was right for the Director to rely on the Immigration Ordinance which gave him power to consider applications by non-residents to remain in Hong Kong.

He also said that in the case of Filipino parents, they can easily fly in and out of Hong Kong to visit their children as they don’t need a visa to get into the territory, and are allowed to remain for at least two weeks.

The first case in the appeal dates to as far back as 2007, when Comilang, a former domestic helper, sought court leave to contest the Director’s decision denying her application to remain in Hong Kong and look after her then one-year old daughter, Zahrah Noor Ahmed. Zahrah, now 11, was born to Comilang and Pakistani permanent resident Shaker Ahmed.

In the second case, Desiree Luis gave birth to the three children in Hong Kong while married to a fellow domestic worker. The eldest of the three, now 15, years old, has been granted right of abode. The two younger ones, 13 and 6 years old, do not have the same status. Mrs Luis has been allowed to get in and out of Hong Kong as a visitor since losing her employment in 2006.

In the third case, Dembele first arrived in Hong Kong as a visitor in 2006. He met Huang in 2010 and married the following year. Their daughter was born in 2012. The Immigration Director refused Dembele’s application for a change of status, saying he was not satisfied that Huang, who is receiving comprehensive social security assistance, is able to support him.
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