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Chan Mei Yee v Director Of Immigration

Judgment Cited authorities 29 Cited in Precedent Map Related
Vincent
Judgment Date13 July 2000
Year2000
Judgement NumberHCAL77/1999
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL000077B/1999 CHAN MEI YEE v. DIRECTOR OF IMMIGRATION

HCAL000077B/1999

HCAL77/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.77 OF 1999

---------------------------------

BETWEEN
CHAN MEI YEE （陳美儀） Applicant
AND
DIRECTOR OF IMMIGRATION
（入境事務處處長）		 Respondent

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AND

HCAL99/1999

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.99 OF 1999

-------------

BETWEEN
WONG KAM PING （黃錦萍） Applicant
AND
DIRECTOR OF IMMIGRATION
（入境事務處處長）		 1st Respondent
SECRETARY FOR SECURITY
（保安局局長）		 2nd Respondent

------------------

(HEARD TOGETHER)

Coram: Hon Cheung J in Court

Dates of Hearing: 22-23 May and 5 June 2000

Date of Judgment: 13 July 2000

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J U D G M E N T

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1. These are two separate applications for judicial review. They were heard at the same time.

APPLICATION OF CHAN MEI YEE

FACTS

The entry and order to remove

2. Chan Mei Yee ("Ms Chan") is a resident of Mainland China. She was born there in 1969. She married her husband, Mr Lee Man Shing, in the Mainland in 1992. Mr Lee is a Hong Kong permanent resident. In December 1992, Ms Chan gave birth to a daughter Lee Ka Po ("the child") during her visit to Hong Kong. The child has Hong Kong permanent resident status.

3. On 26 January 1997, Ms Chan entered Hong Kong with a two-way exit permit issued by the Mainland authority. She was permitted to remain in Hong Kong as a visitor until 19 April 1997. However, she failed to leave and has been overstaying since 20 April 1997. She was arrested in August 1998 and afterwards charged with breaching the condition of stay under section 41 of the Immigration Ordinance. On 19 November 1998, she was convicted in the magistracy and was given an absolute discharge.

4. The Director of Immigration ("the Director") issued a removal order against her on 3 March 1999. She appealed against the removal order to the Immigration Tribunal. The appeal was dismissed on 12 March 1999 without hearing. She now applies for judicial review of the removal order issued by the Director.

Ms Chan's case

5. Until the hearing, Ms Chan had acted in person and the reasons stated in her application is that her daughter has epilepsy and she has to receive medical treatment in hospital regularly. She depends on medicine to control her illness. She has serious convulsion, she has to be admitted to the hospital for treatment at any time. No one in the family is available to take care of the daughter. Ms Chan asked for permission to stay in Hong Kong so that she could fulfill her responsibility as a mother by taking care of her young daughter.

The medical history

6. In the first medical report dated 5 February 1999, the Queen Elizabeth Hospital stated that the child had seizures since May 1997. The seizures were generalized and the frequency was approximately once every two weeks. The duration of the seizures was a few minutes. She was admitted from 29 to 31 August 1998 because of generalized tonic seizure.

7. In the report of 7 June 1999, the hospital stated that the child still had frequent seizure episodes in these three months. Her seizure frequency was still around thrice every month despite the gradual stepping up of anti-convulsant dosage. She was admitted to hospital on 3 May 1999 because of a breakthrough seizure.

8. According to the latest medical report dated 10 April 2000 from Queen Elizabeth Hospital, the child did not have any admission after 3 May 1999. She was followed up in the out-patient clinic. The frequency of seizure was approximately once per month between June 1999 and February 2000. The frequency increased after February 2000 and five seizures were reported between 2 February and 22 March 2000. The control of the child's epilepsy was stable before February 1999, with minor attacks approximately once per month. The frequency of seizure increased after February 1999 but the characteristics of the seizures changed. The report stated that because of the difficult control of the epilepsy and apparent poor response to treatment, the prognosis for full recovery appears poor. Further observation, especially her response to the recently added anti-convulsant, is necessary. The report concluded that her illness does not affect her usual daily activities, but she is advised against some activities such as swimming alone, cycling on roads or engaging in some sports like rock-climbing. She does not need close attention but she needs a responsible adult to supervise her to take medicine and to care for her when seizure occurs.

The Director's view

9. The Director stated that Ms Chan had no legal right to stay in Hong Kong. In considering whether a removal order should be made against an illegal entrant or overstayer, he would consider the result of enquiries conducted by the staff of the Immigration Department, as well as the representations by the illegal entrant. He would also consider any humanitarian or special grounds of the case. He stated that there was insufficient strong humanitarian grounds or other reasons to justify special treatment to exercise his discretionary power to permit Ms Chan to stay in Hong Kong.

THE APPROACH

10. The approach of the court in its supervisory role in immigration matters has been well established by a number of cases. In Ho Ming Sai & Others v. The Director of Immigration [1994] 1 HKLR 21, a case concerning illegal immigrants from the Mainland to Hong Kong who surrendered to the Immigration Department and had removal orders made against them, the Director declined to exercise his discretion under section 13 of the Immigration Ordinance so as to authorise them to remain in Hong Kong. Godfrey J (as he then was) stated that :

" 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."

"... They have no right, and no legitimate expectation (i.e., an expectation, induced or encouraged by the conduct of the Director of Immigration) of being allowed to stay here."

"... 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."

11. In R. v. Director of Immigration, Ex parte Chan Heung-mui & Others [1993] 3 HKPLR 533, the Court of Appeal reaffirmed this principle and further stated that an illegal immigrant did not have, as a general rule, a right to a hearing, conducted fairly and in accordance with the rule of natural justice, before a removal order was made against him.

12. In Lau Kong Yung v. Director of Immigration [1999] 3 HKLRD 805, Li CJ stated that :

"... First, an illegal immigrant, whether he entered illegally or has contravened a condition of stay, does not have, as a general rule, a right to a hearing, conducted fairly and in accordance with the rules of natural justice, before a removal order is made against him. ..."

" Secondly, in relation to such a person 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 the case in question. This is consistent with the position under s.13. ..."

"Further, if what is suggested is that the Director should consider the exercise of some other statutory discretion (apart from ss.13 and 19) to enable such a claimant to stay in Hong Kong temporarily or permanently, the position would be similar to that under ss.13 and 19 as regards humanitarian grounds."

MS CHAN IS NOT AN ALIEN

13. Arguments were raised on the case of Schmidt & Anr. v. Secretary of State for Home Affairs [1969] 2 Ch. 149 which dealt with the rights of an alien to have his permission to stay in England to be extended. Many of the Hong Kong cases applied Schmidt. Mr Dykes, SC, counsel for Ms Chan, submitted that the concept of alien is not applicable to Ms Chan because the Hong Kong Reunification Ordinance, Section 6, Schedule 8 provides that :

"Any reference to an alien (or to similar terms or expressions) shall be construed as a reference to a person other than a citizen of the People's Republic of China."

14. Ms Chan is a citizen of China, hence the concept of alien is not applicable. However, her legal status in Hong Kong should be considered in the light of the decided Hong Kong cases which dealt with illegal immigrants both in the sense of someone arriving in Hong Kong illegally or someone who had contravened a condition of stay. Ms Chan came as a visitor, variations on the condition of her stay is under section 11 of the Immigration Ordinance. However, the position regarding the exercise of the discretion of the Director remains to be the same as stated in Lau Kong Yung.

INTERNATIONAL COVENANTS

The three covenants

15. The real issue in this case is the effect of the application of three international covenants, namely, International Covenant on Civil and Political Rights ("ICCPR"), International Covenant on Economic, Social and Cultural Rights ("ICESCR'") and Convention on...

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