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| Court of Final Appeal in Central |
Non-resident parents cannot remain in Hong Kong on the
ground that they have to look after their minor children who have right of
abode.
This was the effect of a decision handed down by the Court
of Final Appeal on Apr 4 which ended the years-long battle of Filipinas Milagros
Tecson Comilang and Desiree Rante Luis to fight their deportation to the
Philippines.
All five members of the CFA who heard the appeal – Chief Justice
Geoffrey Ma, Permanent Justices Robert Ribeiro and Joseph Fok; and Non-Permanent
Justices Frank Stock and Robert Fok- concurred in the decision.
They all ruled that the Director of Immigration was not duty
bound to take into account the various rights relied upon by the appellants under
both Hong Kong’s laws and international covenants in deciding whether the
appellant mothers could stay.
They said that if a person with no right to enter and remain
in Hong Kong could overcome that restriction by relying on someone else’s
right, it would upset the immigration control allowed the government under the
Basic Law.
“As a matter of purpose, we accept
the Director’s submission that it would frustrate the evident purpose of [Bill
of Rights’ Section 11 and Basic Law Article 39] if a
person who has no right to enter and remain is able to circumvent that position
by saying: “I’m relying on someone else’s rights…”said the judgment.
Comilang has been fighting for the right to remain in Hong Kong
with her now 13-year-old daughter Zahra, since 2007. Luis, who has three sons,
David John, now 17; Carl Benz, 15, and Mark Joely, 8, initiated her case in
2012.
Comilang’s daughter Zahra had right of abode from birth
because her father, Pakistani Shaker Ahmed, is a Hong Kong permanent resident.
Luis’ son David John became a permanent resident in 2010 but
his siblings are Hong Kong residents whose continued stay remain subject to the
approval of the Director of Immigration.
Between September 2007 and April 2011, Comilang applied
several times for visa extensions to take care of Zahrah after she left Ahmed, but
these were rejected by the Director.
She succeeded in judicial review proceedings against those
rejections at the Court of Appeal, but on reconsideration, the Director again
refused her extension of stay.
Luis, a domestic helper who married a fellow Filipino helper,
went home when her employment ended in 2006, but kept returning as a visitor.
Both Carl and Mark suffered from illnesses, including heart disease. David has
already obtained permanent residency.
The two mothers argued that the immigration director had
failed to take into account a series of rights under the Basic Law and
international treaties such as the International Covenant on Civil and
Political Rights. The children asserted their mother should also be entitled to
the rights they enjoyed so they could stay and take care of them.
The court looked at whether the director was obliged to take
into account the parent-and-child families’ enjoyment of rights. It also
considered whether the immigration reservation provided under the Bill of
Rights exempted the Director from having to take into account the rights of a
child protected under the Basic Law.
The court eventually decided that the mothers could not use
their children’s rights to favor them.
They also dismissed the claim that there would be a “rule of
law deficit” if they dismissed the appeal.
“That submission is, with respect,
extravagant and potentially misleading. There is no rule of law deficit
in the context of this case or otherwise. The Director does not enjoy an
unfettered discretion in making immigration decisions. On the contrary,
as the jurisprudence of the Hong Kong courts amply demonstrates, the Director’s
exercise of discretion is subject to review,” said the court.
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