Mok Chi Hung and Another v. The Director of Immigration

HCAL371/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.371 OF 2000

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Coram: Hon Cheung J in Court

Dates of Hearing: 21, 22 and 24 November 2000

Date of Judgment: 5 January 2001

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J U D G M E N T

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BACKGROUND

1. Madam Mok Chi Hung ("Madam Mok") is the mother of Miss Lau Wan Sze ("Miss Lau"). They are the applicants in this judicial review who wish to quash the decision of the Director of Immigration ("the Director") made on 13 March 2000 to execute a removal order dated 14 July 1999 made against Madam Mok.

THE PERSONAL BACKGROUNDS OF THE APPLICANTS

2. Madam Mok is a resident of the Mainland. She married Mr Lau Siu Kwan ("Mr Lau"), a Hong Kong permanent resident in the Mainland in 1985. Mr Lau worked as a decoration worker in Hong Kong. On 27 November 1986, Madam Mok gave birth to Miss Lau. After Miss Lau was born, she lived with Madam Mok and Madam Mok's parents in Guangzhou. Madam Mok took care of Miss Lau on a full time basis. Mr Lau would come from Hong Kong to Guangzhou to visit them about two to three times every month.

3. In December 1989, Mr Lau and Madam Mok were separated. In 1990, Madam Mok found herself a job working as an accounting clerk in an electronic components company. Madam Mok's parents looked after Miss Lau while Madam Mok worked. In 1992, Mr Lau applied for divorce in the Mainland. In 1993, the marriage was dissolved, custody of Miss Lau was granted to Mr Lau, but Madam Mok continued to live with Miss Lau and Madam Mok's parents in Guangzhou. Mr Lau later remarried again in the Mainland. In December 1995, Madam Mok ceased working and looked after Miss Lau on a full time basis.

4. On 8 April 1996, Miss Lau came to Hong Kong to settle here on a one-way permit. Mr Lau took Miss Lau to live with Madam Mok's sister, Mok Chi Wai. On 15 April 1996, Miss Lau returned to Guangzhou to continue her primary three education. She continued to live with Madam Mok and Madam Mok's parents. Madam Mok continued to look after her daughter on a full time basis. At that time, as she was unemployed, Madam Mok and her daughter had to live on Madam Mok's savings.

5. In July 1996, Miss Lau finished her school in Guangzhou and returned to Hong Kong. Mr Lau asked his sister to look after Miss Lau. Miss Lau stayed in the home of Mr Lau's sister. Mr Lau's sister was a cashier in a supermarket. Her own household consisted of her husband, a son of nine years old and herself. Her husband was a construction site worker. On 10 August 1996, Madam Mok's sister took Miss Lau from Mr Lau's sister and looked after Miss Lau herself because Miss Lau complained that she had been beaten by Mr Lau's sister and her son. From that day onwards, Miss Lau lived with Madam Mok's sister in her flat together with her boyfriend and her son who was then about 12 years old, and her own daughter who was about 15 years old.

6. On 13 August 1996, Madam Mok came to Hong Kong for the first time on a two-way permit. She was permitted to stay until 11 February 1997. She went to live in her sister's flat. Madam Mok commenced proceedings against Mr Lau in the Family Court in Hong Kong for the guardianship of Miss Lau. On 1 April 1997, Madam Mok was convicted of breach of condition of stay. On 14 April 1997, the Family Court in Hong Kong granted interim custody of Miss Lau to Madam Mok. On 17 April 1997, Madam Mok returned to the Mainland. Miss Lau continued to live with Madam Mok's sister in Hong Kong.

7. On 29 May 1997, Madam Mok arrived in Hong Kong for the second time on a two-way permit. She was permitted to remain until 5 June 1997. She stayed with her sister while she was in Hong Kong. In June 1997, Madam Mok quarreled with her sister over their family house in Guangzhou. She then left her sister and stayed with her friends. However, Miss Lau continued to live with Madam Mok's sister. On 4 August 1997, a removal order was made against Madam Mok. Her petition relating to the stay was dismissed. On 25 June 1998, Madam Mok was removed to the Mainland but her sister continued to take care of Miss Lau in Hong Kong.

8. On 4 July 1998, Madam Mok came to Hong Kong for the third time. She was permitted to remain until 11 July 1998. She had prearranged a room for herself and her daughter to live, and they have been living in that place until now. Apart from a brief stay in Guangzhou during the summer of 1998, Madam Mok and her daughter have been living in Hong Kong since 18 August 1998.

9. On 5 February 1999, the Family Court in Hong Kong made the final order granting custody of Miss Lau to Madam Mok. On 14 July 1999, a removal order was made against Madam Mok. Her appeal to the Immigration Tribunal was dismissed. On 6 January 2000, Madam Mok's solicitors asked the Director to rescind the removal order on humanitarian grounds. On 13 March 2000, the Director affirmed the removal order and sought to execute the removal order against Madam Mok. This application was then lodged.

THE BASIS OF THE APPLICATION

The application for judicial review is made on two grounds :

(1) The Director, in making the decision to remove Madam Mok from Hong Kong, has failed to take into account the rights of Madam Mok and her daughter, and the obligations of the Hong Kong Government under international covenants.

(2) The decision is Wednesbury unreasonable.

THE INTERNATIONAL COVENANTS

10. The relevant international covenants are :

"a. Art 25(2) of the Universal Declaration of Human Rights ('UDHR') which provides that:

'Motherhood and childhood are entitled to special care and assistance.'

b. Art 23(1) of the International Covenant on Civil and Political Rights ('ICCPR') which provides that:

'Family is the natural and fundamental group unit of society and is entitled to be protected by society and the State.'

c. Art 10(1) of the International Covenant on Economic, Social and Cultural Rights ('ICESCR') which provides that:

'The widest possible protection and assistance should be accorded to the family, which is the fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children'

d. Art 2, 3, 9, 10, and 12 of the Convention on the Rights of Child ('CRC') which provide that:

Art 2

'1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all form of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.'

Art 3

'1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.'

Art 9

'1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.'

Art 10

'1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents resides in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contracts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his and her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the present Convention'

Art 12

'1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.' "

THE POSITION

11. The application of the international covenants to the decisions of the Director had been considered by me in the case of Chan Mei Yee v. The Director of Immigration, HCAL77/1999. I would only be repeating myself if I have to set out the arguments on the international covenants in this judgment. The following is what I perceived to be the position.

1. An international covenant, unless it is incorporated into domestic legislation, is not part of the domestic law : R. v. Secretary of State for the Home Department, ex parte Brind & Others [1991] 1 AC 696.

2. Rectification of an international covenant gives rise to a legitimate expectation, absence statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the international covenants. This is the approach of the Australian High Court in Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh [1994-1995] 183 CLR 273, in which it found that the government had failed to consider the Convention on the Rights of the Child ("CRC") and treat the best interests of the children in that case as a primary consideration in deciding to remove their parent who was not an Australian citizen from that country. The children were born in Australia and were Australian citizens. In Tien & Others v. Minister for Immigration and Multicultural Affairs [1998] 159 ALR 405, Goldberg J in the Federal Court of Australia held that :

"... However, Teoh is a principle to be observed by decision-makers unless and until the parliament or the executive tells decision-makers not to act in accordance with treaties; or until the parliament legislatively overrules Teoh. In order for a ministerial statement to constitute an executive indication to the contrary (as referred to by Mason CJ and Deane J in Teoh) it would be necessary for the statement to say something to the effect that decision-makers will not act, or are directed not to act, in accordance with particular provisions of particular Conventions or treaties."

In Chan Mei Yee, I stated that the approach in Teoh should be adopted. In Mohammed Hussain Ahmed & Others v. Secretary of State for the Home Department [1999] Imm. AR. 22, which was not cited in Chan Mei Yee, Lord Woolf MR of the English Court of Appeal stated that the judgment in Teoh is one "which I find wholly convincing".

3. The ICCPR, as applied in Hong Kong, is by way of the Bill of Rights Ordinance. Article 19(1) provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state. Prior to the resumption of sovereignty by China of Hong Kong on 1 July 1997, Article VII of the Letters Patent provided that :

"(3) The provisions of the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966, as applied to Hong Kong, shall be implemented through the laws of Hong Kong. No law of Hong Kong shall be made after the coming into operation of the Hong Kong Letters Patent 1991 (No. 2) that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with that Covenant as applied to Hong Kong.".

See the Hong Kong Letters Patent 1991 (No.2) dated 20 May 1991.

4. After the formation of the Hong Kong Special Administrative Region, Article 39 of the Basic Law provides that :

"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 shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article."

5. The Bill of Rights Ordinance is part of the domestic law in Hong Kong. It was entrenched by the Letters Patent and is now entrenched by the Basic Law. However, section 11 of the Bill of Rights Ordinance expressly provides for the reservation as follows :

"As regards person not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation."

This reservation was also made in the ICCPR when the United Kingdom extended the ICCPR to Hong Kong.

6. The CRC has not been incorporated into domestic legislation in Hong Kong. There is a similar reservation in relation to legislation relating to the entry into, stay in and departure from Hong Kong of those who do not have the right under the laws of Hong Kong and to the acquisition and possession of residence.

7. The effect of the reservation is that Article 19(1) of the Bill of Rights Ordinance cannot be invoked as a substantive right by any person not having the right to enter and remain in Hong Kong, nor can it be invoked by another member of his family who may have the right to live and remain in Hong Kong : see Hai Ho-tak (a minor) acting by his father Hai Keung-sing as his next friend v. Attorney General [1994] 2 HKLR 202. By parity of reason, the same applies to the CRC as the basis for legitimate expectation that the government will consider the interest of the children in deciding to remove their parents who have no right to stay in Hong Kong. It has to be observed that the Supreme Court of Ireland in Fajujonu v. Minister for Justice [1990] 2 IR 151 held that although parents who are not Irish citizens and cannot claim any constitutional right of a particular kind to remain in Ireland, they are entitled to assert a choice of residence on behalf of their infant children who were born in Ireland, in the interests of those infant children.

8. The ICESCR is promotional in nature but it still can be used as a framework in which government's decisions or discretions are to be considered. See further a discussion on the nature of the ICESCR in Human Rights in International Law : Legal and Policy Issues edited by Theodor Meron, pages 210-217. The ICESCR is also not incorporated into Hong Kong law. Unlike the two other conventions, there is no reservation in relation to immigration matters. However, the Court of Appeal in Hai Ho-tak held that even in the absence of the reservation the Director is entitled to implement lawful decisions in matters relating to immigration because of the unique position faced by Hong Kong. The decision in Hai Ho-tak is binding on me.

THE APPLICATION OF THE PRINCIPLES TO THE PRESENT CASE

12. Madam Mok has no right to stay in Hong Kong. Her daughter Miss Lau is a Hong Kong resident. It is accepted that the reservation in the Bill of Rights Ordinance and the CRC apply to Madam Mok. However, Miss Lau is not subject to the reservation. Under the existing law, Miss Lau cannot invoke the provisions of the Bill of Rights Ordinance as a substantive right or the CRC and ICESCR as the basis of a legitimate expectation that the Director, in deciding to remove her mother, should regard the best interests of Miss Lau as a primary consideration.

13. Although initially there was a challenge to the propriety of the reservation, this point has not been pursued by Mr Sarony, SC, counsel for the applicants, at the hearing. He seeks to distinguish Hai Ho-tak on the basis that the Court of Appeal was dealing with the Bill of Rights Ordinance whereas the reliance in this case is on the Basic Law which entrenches the international covenants referred to in Article 39. In my view, this is not a distinction of real substance because both the Letters Patent and Basic Law entrenched the Bill of Rights Ordinance which incorporates the ICCPR. In my view, the applicants are not entitled to rely on the international covenants in advancing their case.

WEDNESBURY UNREASONABLENESS

The common law position

14. The applicants argue that the decision to remove Madam Mok is Wednesbury unreasonable. In Teoh, Gaudron J agreed with the majority decision on the application of the convention. However, she also expressed her view on the common law position in relation to children :

(1) The government has an obligation to individual, especially if the individual is in a state of vulnerability. There are particular obligations to the children citizen in need of protection. This gives rise to the parens pariae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society.

(2) It is arguable that citizenship carries with it a common law right on the part of children and their parents to have a child's best interests taken into account, at least as a primary consideration, in all discretionary decisions by government which directly affects that child's individual welfare.

(3) Any reasonable person who considers the matter would assume that the best interests of the child would be a primary consideration in all such decisions. Further, they would assume that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker. Particularly, where the break-up of the family unit is, or may be, involved and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be, in need of protection.

15. Lord Woolf in Ahmed accepted that what Gaudron J said is "very much the approach of the common law".

The Director's position

16. Mr Leung Ping Kwan, the Acting Assistant Director of Immigration, stated that in deciding to issue a removal order against Madam Mok on 14 July 1999, he had considered all the circumstances and materials then before him and took into account the following factors :

"(a) All the materials supplied by and on behalf of the Applicants, the Court Orders on the custody of the 2nd Applicant (i.e. Miss Lau) and the recommendations of the Social Welfare Officer were considered.

(b) The 1st Applicant (i.e. Madam Mok) did not have any legal claim in Hong Kong.

(c) She had overstayed the permission to remain. The clear and well understood policy requirement in respect of overstayers from the Mainland was that they should be returned there unless there were exceptional humanitarian reasons for a decision contrary to policy.

(d) She had no incentive to leave voluntarily.

(e) The Department's views were that proper care could be provided to the 2nd Applicant, Miss LAU Wan Sze, who was over 12 years old if the 1st Applicant was removed. She might be taken back to the Mainland and taken care of by the 1st Applicant in the Mainland. The 2nd Applicant has lived in the Mainland from her birth in November 1986 until April 1996 and would not have difficulty in adapting to the Mainland environment if she returned in July 1999.

(f) Alternatively, the Social Welfare Department might provide residential care to the 2nd Applicant in Hong Kong if she was to stay in Hong Kong. She has been receiving a monthly comprehensive social security assistance from the Social Welfare Department and would have no undue hardship. Both the 1st Applicant, Madam MOK Chi Hung and the 2nd Applicant, Miss LAU Wan Sze had been prepared for Madam Mok's repatriation and arrangements had been made for residential care by SWD for Miss Lau.

(g) The 1st Applicant might apply to come to Hong Kong as in the past with no particular difficulties and the 2nd Applicant might visit the Mainland from time to time.

(h) Besides, the 2nd Applicant's maternal aunt, Madam MOK Chi Wai, might provide care and support to her even if the maternal aunt could not live with her.

(i) There was no known weaknesses of the 2nd Applicant such as persistent or serious illness. As in many cases involving migration from the Mainland, the separation from her mother of a 12 year old child gave rise to compassionate grounds. But taken with the arrangements in place these were not exceptional and would not cause undue hardship.

(j) The 1st Applicant, her parents and brother had been living in the Mainland. There should not be undue hardship when she returned to the Mainland.

(k) The compassionate grounds that existed were not strong enough to merit an exceptional treatment of the 1st Applicant and grant her further permission to remain."

The stark facts

17. The stark facts in this case are that since her birth in November 1986, Miss Lau has been looking after by Madam Mok. Madam Mok was granted custody of Miss Lau in February 1999 at the time when she did not have any right to stay in Hong Kong. This is a fact that was known to the court when the order was made. Madam Mok is clearly the proper person to look after Miss Lau. The social investigation reports ordered by the Family Court clearly recommended Miss Lau to be looked after by Madam Mok. The report of 9 April 1997 stated, among other things, "without any doubt, it is in the best interest of the child that the child should be continuously under the care of the mother". Likewise, the report of 13 October 1997 stated that : "without doubt, the mother is the best person to look after the child judging from the fact that she has been the primary carer and has a close attachment with the child". The custody order clearly recognized this fact. If a removal order is made against Madam Mok, it would mean that if Miss Lau is to continue to stay in Hong Kong, there will be no one having any custodial right in Hong Kong over her. Madam Mok had lost contact with her sister who used to look after Miss Lau. Mr Lau is not a suitable person to take care of Miss Lau. He has not visited his daughter since October 1997. Madam Mok had applied for a one-way permit to settle in Hong Kong three times : April 1997, July 1998 and September 1999, and was rejected on each occasion. She was told that her applications were refused because the order of the Family Court in Hong Kong granting custody of Miss Lau to her was not recognised in the Mainland.

18. Since Miss Lau has now settled in Hong Kong, she no longer has any household registration in the Mainland. As a result, if Miss Lau is to return to Guangzhou to study, Madam Mok has to make substantial financial contribution to a school in order for her to study there. It would be difficult for Madam Mok to find a job in Guangzhou with a salary that would allow her daughter to study there.

THE HONG KONG AUTHORITIES

19. The relief sought by the applicants included, among others, an order that the Director is to grant Madam Mok leave to remain in Hong Kong, alternatively, he should consider afresh whether Madam Mok ought to be granted leave to remain in Hong Kong.

20. Under section 13 of the Immigration Ordinance, the Director may authorise a person who landed in Hong Kong unlawfully to remain in Hong Kong. In Ng Yuen Shiu v. The Attorney General [1991] HKLR 352, the Court of Appeal dealing with someone who has no right to stay in Hong Kong, stated that :

"... He stands before the court as one who at best has a hope or expectation of attracting the sympathetic consideration of the Director who has a discretion under section 13 of the Ordinance to authorize him to remain subject to such conditions of stay as the Director sees fit to impose."

21. In Ho Ming Sai & Others v. The Director of Immigration [1994] 1 HKLR 21, Godfrey J (as he then was) stated that :

"1. These girls are 'illegal immigrants'; and this Court has no power to decide whether illegal immigrants, however strong the merits of their case, ought to be allowed to remain here or not. Such a power does exist; but s. 13 of the Immigration Ordinance (Cap. 115), confers it, exclusively, on the Director of Immigration."

"2. Certainly, the court would be prepared to intervene in the event of any misuse by the Director of Immigration of his power under s. 13. If he were to abuse his power illegally (e.g., by refusing to consider an exercise of his powers in favour of an illegal immigrant unless bribed to do so) or irrationally (e.g., by refusing to consider an exercise of his powers in favour of any illegal immigrant of Chinese race or nationality) the court would intervene. But, further than that, I do not believe the court would or should go."

22. In R. v. Director of Immigration, ex parte Chan Heung Mui & Others [1993] 3 HKPLR 533, Litton JA at page 547 held that :

"The Government's stated policy, since 1980, is that all illegal immigrants should be returned unless there are considered to be strong or powerful humanitarian reasons for doing otherwise in individual cases. The exercise of discretion under s 13 is only made in exceptional cases. How wide this should be is a matter entirely for the judgment of the Director."

23. Ho Ming Sai was approved in Chan Heung Mui. Chan Heung Mui and Ng Yuen Shiu were approved by the Court of Final Appeal in Lau Kong Yung & Others v. Director of Immigration [1999] 3 HKLRD 778. In that case, at pp805-806, Li CJ further held that in relation to an illegal immigrant, the Director has no duty to consider humanitarian grounds in considering the making of a removal order against him. But he can take such grounds into account if he thinks it appropriate in a case in question.

24. Litton JA (as he then was) in Chan Heung Mui stated that a very high threshold is required before a decision can be said to be irrational. In Mohammed Arif (an infant) & Another [1968] 1 Ch. 643, Lord Denning MR referred to the immigration legislation and stated that parliament has laid down a full and complete code to govern the entry or removal of immigrants and has entrusted the administration of it to the immigration officers. So long as the exercise is honestly and fairly, the court cannot and should not interfere nor will they allow the wardship jurisdiction to be used for a like purpose.

25. The result in this case is a particularly stark one. However, the discretion to remove someone who has no right in Hong Kong or allow her to stay is one that ultimately lies with the Director and not with the court. In considering the case of Madam Mok, the Director had regarded the position of the daughter. This is not an easy decision to make but, at the end of the day, I am not satisfied that, having considered the stated policy on illegal immigration, the decision is so irrational that it has to be quashed. This is an area in which the court in exercising its supervisory jurisdiction should not interfere.

26. This is, again, like some of the immigration cases that came before the court, where the court finds it to be extremely uncomfortable with the decision under challenge because no matter how one looks at it, it produces extremely harsh results. An infant child with the right to stay in Hong Kong will be left here without the care of her mother who was granted custody of the infant. Mr Marshall, SC, informed the court that the Director does take into account the view expressed by the courts and will reconsider appropriate cases in a non-litigious setting. I hope the same consideration will apply to the present case as well.

CONCLUSION

27. The application is dismissed with no order as to costs on a nisi basis.

Representation:

Mr Neville Sarony, S.C., leading Mr Kwok Sui Hay, instructed by Clarke & Kong, for the Applicants

Mr William Marshall, S.C., leading Ms Nancy Kwok, SGC, of Department of Justice, for the Respondent