Read the full judgment text of CACV 59/2016, CACV 60/2016 & CACV 149/2016 on BabelCite. This Court of Appeal judgment was delivered on 26 March 2018 before Cheung CJHC, Lam VP and Poon JA.
Constitutional law – immigration – family rights – Basic Law article 37 – Hong Kong Bill of Rights Ordinance (Cap 383) section 11 immigration reservation – ICCPR – ICESCR article 10(1) – Convention on the Rights of the Child – whether foreign national parents and their Hong Kong permanent resident minor children can rely on family rights to challenge refusal of dependant visa or extension of stay – Comilang, a Filipino former domestic helper who overstayed after her marriage broke down, sought extension of stay to care for her Hong Kong permanent resident daughter – Luis, a Filipino former domestic helper, sought extension of stay to care for her three Hong Kong permanent resident sons – Dembele, a Malian national, sought dependant visa to join his Hong Kong permanent resident wife and her three children – whether BL art.37 confers a general right to family or only the right to procreate and foster children freely and voluntarily – held: BL art.37 confers only the right to procreate and foster children freely and voluntarily, not a general right to family, on a purposive construction considering the Chinese text 自願生育 and the purpose of relieving Hong Kong residents of the Mainland's family planning duty under article 49 of the Chinese Constitution – whether BL art.37 is available to non-residents in immigration context – held: no, because section 11 of HKBORO, constitutionally entrenched by BL art.39(1), excludes reliance on substantially similar rights by non-residents in immigration matters, following Ubamaka and Rbani – whether Hong Kong residents can assert BL art.37 rights for benefit of non-resident family members (Hai Ho Tak spill-over) – held: no, the absurd result condemned in Hai Ho Tak applies equally to BL art.37, following Santosh Thewe, Aringo and Li Nim Han – whether BL art.24 confers a derivative right of residence – held: no, following Lam J in Comilang No 1, the right of abode of a child does not carry a derivative right of residence for the primary carer – whether BOR/ICCPR family rights are engaged – held: no, they are excluded by section 11 and the dualist principle on undomesticated treaties – whether ICESCR article 10(1) is engaged – held: no, the ICESCR has not been domesticated and has no force of law in Hong Kong – whether CRC article 3 best interests principle is engaged – held: no, the CRC is undomesticated and was ratified subject to an immigration reservation – Dependant Policy – whether it is a family reunion policy or a dependency policy – held: it is a dependency policy, not a family reunion policy, following BI v Director of Immigration, with criteria presupposing dependency and financial sufficiency – whether Para 5C financial sufficiency requirement is an eligibility criterion – held: yes, it must be satisfied before a dependant visa can be granted – whether discrimination contrary to BL art.25 was made out – held: no, the Dependant Policy and One-Way Permit scheme are different schemes, and the male/female sponsor comparison rests on a stereotype – whether the Director's decisions were tainted with procedural unfairness, fettering, or Wednesbury unreasonableness – held: no, the Director properly considered the applications and applied the established policy – whether the Judge erred in setting aside ex parte leave for delay – held: no, the delays (about 7 months, 10 months, and 1 year/almost 3 years) were not adequately explained and the judicial reviews had no strong merit – appeals dismissed with costs, certificate for two counsel granted.
Legal issues: Content and scope of Basic Law article 37 · Whether BL art.37 is available to non-Hong Kong residents in immigration context · Whether Hong Kong residents can assert BL art.37 for benefit of non-resident family members (Hai Ho Tak spill-over) · Whether BL art.24 confers a derivative right of residence · Whether BOR/ICCPR family rights are engaged · Whether ICESCR article 10(1) is engaged · Whether CRC article 3 best interests principle is engaged · Whether the Dependant Policy is a family reunion policy · Whether Para 5C financial sufficiency requirement is an eligibility criterion · Whether the Director's decisions were tainted with procedural unfairness, fettering, or Wednesbury unreasonableness · Whether the Director's decisions were discriminatory · Whether the Judge erred in setting aside ex parte leave for delay
Outcome: All three appeals dismissed. The Court of Appeal upheld the Judge's dismissal of the judicial review applications and his setting aside of the ex parte leave on the ground of delay. The foreign parents remain unable to stay in Hong Kong on the basis of the asserted family rights to care for their Hong Kong permanent resident children.
Cites 13 cases