In Re Chan Man Ching

HCAL000007/1998

HCAL 7 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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Coram: The Honourable Mr. Justice Wong in Court

Date of Hearing: 28 May 1998

Date of Reasons for Judgment: 16 June 1998

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REASONS FOR JUDGMENT

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1. This is an application for judicial review pursuant to leave granted by Stock J.

2. The facts and background are these. The applicant, now 28 years of age, was born in China in June, 1969 and was married to her husband, Chung Ying Kwan, in Guangdong Province in China in April 1991. After the marriage, she came to Hong Kong illegally in July, 1991 and stayed with her husband. In February 1992, she gave birth to a son at her home. She was arrested by the police on 19th July, 1995 together with her son.

3. Mr. Chung, the husband, is a Hong Kong permanent resident and works as a security guard at Park Lane Hotel. After investigation, the son was allowed to register his birth and he is now a Hong Kong permanent resident. The son suffers from congential club foot since birth and had not received comprehensive medical treatment until the applicant was arrested by the police.

4. All along, the son has been taken care of by the applicant. He could not walk until an operation was performed on him on 27th September, 1996 at Kwong Wah Hospital. He is still suffering residual foot deformity and walking in a limbing gait. He still requires close observation and medical follow up.

5. When the applicant was interviewed by the Immigration Department after her arrest, she informed the interviewing officer that she would like to apply to stay in Hong Kong to look after her son because of his medical condition. On or about 25th November, 1997 she was served with a removal order. She appealed against the removal order and her appeal was dismissed by the Immigration Tribunal on 5th December, 1997.

6. The two grounds argued on behalf the applicant are:

1. The Deputy Director of Immigration and/or the Tribunal did not consider the relevant matters of the applicant's case sufficiently, such as the medical condition of her son and the family circumstances of the applicant.

2. The decision of the Deputy Director of Immigration and/or the Tribunal is unjust and unreasonable.

7. There is no merit in both grounds. The Deputy Director or Immigration and the Tribunal clearly had all the matters raised in argument in this application before them and considered them before they reached their decision. The medical condition of the child was always in the forefront of their minds. They had two medical reports before them which they considered. These reports were dated 30th August 1996 and 10th September 1996. In paragraph 3 of the latter report, it is stated:

"Gradual improvement is shown with physiotherapy, and the condition of patient is fairly static recently. The patient is now a stable social walker. The current problems are occasional fall when running fast on level ground or down stairs, and mild right foot deformity. It is planned to gradually wean off phsiotheraphy and carry on home exercises."

The Deputy Director and the Tribunal were also fully aware of the applicant's other family circumstances. The medical report shows that the child is on the way to full recovery although he will have a mild deformity on the right foot which is likely to be permanent.

8. On the second ground, the law is well settled. In Chan Heung Mui & Others v The Director of Immigration, Civil Appeal Nos. 168 & 169 of 1992 Litton J.A., as he then was, said at p.16:

"Assume, for instance, that Hong Kong were to be overwhelmed by a great influx of illegal immigrants, as has happened in the past. Is the Director not at liberty to make removal orders under section 19(1)(b)(ii) and, after the period of appeal to the Immigration Tribunal has passed, to cause such orders to be forthwith executed? Is the Director bound to pause in the process, in order to entertain "applications" for the exercise of his discretion under section 13? Is he bound to consider every case on "humanitarian grounds" before deciding to repatriate the illegal immigrant to China? Having regard to the scheme of the Ordinance, this appears to me an extravagant proposition. Section 13 says nothing about "applications" by illegal immigrants on humanitarian or any other grounds. Section 13 is an empowering provision; it would be an odd thing if, because of the current "humanitarian" practice of the Director, his future powers of action have become emasculated. A court would hesitate, in construing a statute, to give it such effect."

He concluded his judgment at p.20 by saying:

"The decision of the Director in these two cases may be said to be hard. But then, he has a very difficult function to discharge. In my judgment, the judge was right when he said: "It can never be suggested that it is a decision no reasonable authority can make."

I respectfully agree. In paragraph 10 of his affidavit, Mr. Chun Yiu, Acting Assistant Principal Immigration Officer said:

"Madam Chan has no legal claims on Hong Kong and does not have sufficiently strong humanitarian grounds to justify an exceptional stay here. Like many other residents in the Mainland having a spouse in Hong Kong and children born here, Madam Chan should have applied to the Chinese authorities for a One-way Exit Permit which would enable her to enter and stay in Hong Kong legally. Moreover it is reasonably foreseeable that if Madam Chan, having entered Hong Kong illegally, could be immune from repatriation, the region would be besieged with an influx of illegal entrants or overstayers."

9. The application is dismissed. Since the Respondent does not insist on costs, I make no order in this regard.

(Michael Wong)

Judge of the Court of First Instance

Representation:

Mr. Ho Chi Sum, SGC for D.P.P.

Ms. Carol Fung instructed by M/s William Au & Co. for the applicant.