Read the full judgment text of HCAL 000058/1998 on BabelCite. This High Court CFI judgment was delivered on 11 April 2001 before Hartmann J.
Constitutional and administrative law – judicial review – immigration – removal of illegal immigrant – whether Director of Immigration obliged to consider protections under international human rights conventions when exercising removal discretion in respect of Mainland overstayer with permanent-resident husband and children – International Covenant on Civil and Political Rights (ICCPR) – Convention on the Rights of the Child (CRC) – International Covenant on Economic, Social and Cultural Rights (ICESCR) – reservations to ICCPR and CRC in respect of immigration matters – section 11 of the Hong Kong Bill of Rights Ordinance – Basic Law Articles 39 and 48(13) – legitimate expectation founded on ratification of international conventions – whether the reservations pre-empt any such expectation – whether decisions were perverse or irrational. The 1st Applicant, a Mainland-born woman, married a Hong Kong permanent resident and overstayed after entering on a two-way permit in August 1996. She was convicted and made the subject of a removal order under section 19(1) of the Immigration Ordinance (Cap 115), and her section 53A appeal to the Immigration Tribunal was dismissed. The Applicants, comprising the mother, her permanent-resident husband and their two young children, sought judicial review, contending that the Director was obliged, when exercising his discretion under section 13 of the Ordinance, to give due consideration to the family-unity and child-protection provisions of the ICCPR, the CRC and the ICESCR. The court held that, although the question of whether the Director was so obliged was the principal live issue, the answer was no. The ICCPR and CRC had been applied to Hong Kong subject to express reservations preserving the application of immigration legislation to those without the right to enter and remain, and section 11 of the Bill of Rights Ordinance mirrored those reservations domestically, preventing both illegal immigrants and their permanent-resident family members from invoking the Bill to challenge immigration decisions (In re Hai Ho Tak and Cheng Chun Heung [1994] 2 HKLR 202 followed). The court followed the English Court of Appeal in ex parte Gangadeen and distinguished Teoh and Tavita on the basis that Hong Kong, unlike Australia and New Zealand, had entered reservations of the kind that defeated any legitimate expectation that convention protections would be considered. The court further held, following Chan Mei Yee v Director of Immigration HCAL 77/1999, that the ICESCR was a promotional and progressive covenant, incapable at the present time of giving rise to enforceable or justiciable expectations in immigration matters. The Vienna Convention on the Law of Treaties Article 21(1)(a) was held to govern inter-state relations and not to be directly invocable by individual applicants in municipal courts, and ex parte Brind confirmed that treaty obligations not embodied in statute do not form part of Hong Kong's domestic law. Applying the Wednesbury threshold of Lau Kong Yung v Director of Immigration [1999] 3 HKLRD 805 and Ho Ming Sai v Director of Immigration [1994] 1 HKLR 21, the court further held that the Director's decisions lay well within the ambit of his discretion and could not be characterised as perverse or irrational. Application for judicial review dismissed; order nisi for costs in favour of the Respondents, to be made final within thirty days unless an application to argue costs is earlier made.
Legal issues: Whether the Director of Immigration must consider international convention rights of permanent-resident family members when exercising removal discretion · Whether ratification of international conventions gives rise to a legitimate expectation enforceable in municipal courts · Whether the impugned removal decisions were perverse or irrational
Outcome: Application for judicial review dismissed; the Director's decisions to issue, execute and maintain the removal order against the 1st Applicant are upheld.
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