Read the full judgment text of HCAL 13/2014, HCAL 45/2014, HCAL 56/2014 on BabelCite. This Court of First Instance judgment was delivered on 12 January 2016 before Au J.
Administrative and constitutional law – immigration – judicial review – Director of Immigration's refusal to grant permission to remain in Hong Kong to former foreign domestic helpers (FDHs) who are mothers or grandmothers of Hong Kong permanent resident children, in order to take care of the children – three consolidated applications (HCAL 13/2014, HCAL 45/2014, HCAL 56/2014) – whether the Director was obliged to take into account (a) the right to family under Articles 17, 23 and 24 of the International Convention on Civil and Political Rights (as domesticated under Articles 14, 19(1) and 20(1) of the Bill of Rights Ordinance (Cap 383)) and Articles 37 and 39 of the Basic Law; (b) the right to family under Article 10 of the International Covenant on Economic, Social and Cultural Rights; and (c) the best interests of the child under Article 3(1) of the Convention on the Rights of the Child and at common law – held, none of the asserted rights is engaged as a matter of Hong Kong domestic law in the present immigration context – ICCPR/BOR rights excluded by the Immigration Reservation under BOR s.11 (constitutionally entrenched under BL 39 and applied to non-residents via BL 41 in Rbani), and Hai Ho Tak v Attorney General [1994] 2 HKLR 202 prevents HK permanent resident children from indirectly invoking those rights – BL 37 confers only the right to procreate and to foster children (Gurung Deu Kumari, Li Lim Han, Comilang 1 Judgment), looking at the Chinese text '自願生育的權利' and Article 49 of the Chinese Constitution – ICESCR Article 10 is undomesticated, aspirational and resource-sensitive, and government statements do not create an enforceable legitimate expectation (Chan Mei Yee, Chan To Foon) – CRC Article 3(1) is not incorporated into Hong Kong law, is subject to an express immigration reservation, and is distinguished from ZH (Tanzania) where the UK had domesticated the principle – the best-interests principle is not established as customary international law on the evidence (academic theses insufficient; widespread immigration reservations prevent crystallisation) – parens patriae at common law is confined to family/wardship proceedings and does not impose a free-standing duty on the Director in immigration matters – conventional judicial review grounds (failure to take relevant considerations into account, fettering of discretion, procedural unfairness, breach of legitimate expectation, Wednesbury unreasonableness, inadequate reasons) all rejected, with the file minutes and affirmation evidence accepted as revealing the basis of the decisions and only 'outline reasons' required (Smart Gain, Li Fu Shan, HKTVN v CEIC) – in Pagtama, the Director's Fresh Decision of 14 November 2014 granting permission to remain until 3 February 2017 rendered the application academic – in all three cases, no extension of time granted under O. 53 r. 4(1) given substantial delay (about 7.5 months, 10 months, and 2 years/1 year 9 months respectively), inadequate explanations (legal-aid difficulties and waiting for CFA judgments are not good reasons), weak merits and prejudice to good administration through tolerated overstaying (Re Thomas Lai, AW v Director of Immigration) – all three judicial reviews dismissed; leave set aside on the ground of delay; summonses to amend in Pagtama dismissed with costs; costs to the Director with certificate for two counsel; order nisi with 28-day standing period; applicants' own costs to be taxed in accordance with legal aid regulations.
Legal issues: Family right under ICCPR/BOR engaged in immigration context · Family right under BL 37 and BL 39 · Family right under ICESCR Article 10 · Best interests of the child under CRC Article 3(1) · Best interests of the child as customary international law · Parens patriae at common law in immigration context · Conventional judicial review grounds against refusal decisions · Extension of time for judicial review (delay) · Whether HCAL 13/2014 is academic
Outcome: All three judicial reviews dismissed. HCAL 13/2014 dismissed as academic in light of the Pagtama Fresh Decision. HCAL 45/2014, HCAL 56/2014 and HCAL 13/2014 all refused on the merits (no family right or best-interests right engaged; conventional grounds not made out). Ex parte leave in all three applications set aside on the ground of delay, with no extension of time granted.
Cites 27 cases