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Li Nim Han And Another v The Director Of Immigration

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date14 November 2011
Year2011
Judgement NumberHCAL36/2011
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL36/2011 LI NIM HAN AND ANOTHER v. THE DIRECTOR OF IMMIGRATION

HCAL 36/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 36 OF 2011

____________

BETWEEN

LI NIM HAN 1st Applicant
CHOI KA TAK 2nd Applicant
and
THE DIRECTOR OF IMMIGRATION Respondent

____________

Before: Hon Lam J in Court

Date of Hearing: 1 November 2011

Date of Judgment: 14 November 2011

______________

J U D G M E N T

______________

1. This is the second time the intended removal of the 2nd Applicant from Hong Kong was challenged by way of judicial review. He was the only applicant in the first judicial review which culminated in the judgment of the court in HCAL 97 of 2007, 23 July 2008. The court dismissed the application. Since then there were further developments and the 2nd Applicant still remains in Hong Kong. His wife (the 1st Applicant) now mounts a challenge together with him based on the subsequent developments. Mr Dykes SC, representing the Applicants, told the court at the hearing that he relied exclusively on the right of the 1st Applicant under Article 37 of the Basic Law, which according to his submissions, imports into Hong Kong the European and English jurisprudence on right to family life as applied in an immigration context.

2. I shall not repeat the background facts prior to 2008 which have been fully set out in the judgment in HCAL 97 of 2007. For present purposes, it suffices to note that the 2nd Applicant came to Hong Kong in 1999 by a One Way Permit which was subsequently found to be obtained unlawfully by misrepresentation. When this was discovered, the Director issued a removal order on 1 June 2006. There were other proceedings since the discovery of the unlawful procurement of the One Way Permit in 2003. After the conclusion of criminal proceedings (which resulted in the acquittal of the 2nd Applicant), he married the 1st Applicant on 25 January 2006. They gave birth to a son on 15 April 2008.

3. Since the handing down of the judgment in HCAL 97 of 2007, the Director of Immigration [“the Director”] had conducted two reviews of the case. The first review was conducted in the light of the observation at para.49 of the judgment in HCAL 97 of 2007. Contemporaneous record of the review was kept in the form of an internal minutes prepared by an Immigration Officer on 4 August 2008, which were read and approved by more senior officers within the department. On 14 August 2008, an Assistant Director endorsed the minutes with his agreement to the recommendation to uphold the removal order.

4. On 11 September 2008, the 2nd Applicant was informed by the Director as to his decision to uphold the removal order after the review. The 2nd Applicant was further advised as to the options of applying for One Way Permit to come to Hong Kong for settlement and Two Way Permit for visits.

5. At the end of 2008, the 1st Applicant was diagnosed as suffering from depression and anxiety. The consultant psychiatrist attending her said the main psychological stressor was the unresolved residency claim of the 2nd Applicant. In the Form 86, it is said that the depression substantially affected her ability to take care of the child of the family who was born on 15 April 2008.

6. On 15 April 2009, the 2nd Applicant wrote a Chinese letter to the Director referring to the illness of the 1st Applicant and urging him to grant him permanent resident status on humanitarian grounds. As recorded in the internal minutes in the immigration file, an immigration officer interviewed the 2nd Applicant on 18 April 2009 and counseled him to return to the Mainland and to apply for One Way Permit. The 2nd Applicant indicated he was unwilling to do so and claimed that he had to take care of the 1st Applicant.

7. The 2nd Applicant wrote another letter to the Director on 24 June 2009. He demanded for the issue of permanent identity card to him and asserted that since he was allowed to marry to the 1st Applicant, he had a right to remain in Hong Kong. He blamed the Immigration Department for the mental condition of the 1st Applicant and said he had consulted senior counsel on his case and legal proceedings would be forthcoming.

8. He wrote two further letters to the Director on 14 October and 11 November 2009 respectively. He urged the Director to issue a “temporary identity card” to enable him to work in Hong Kong.

9. On 1 December 2009, solicitor for the Applicants wrote to the Immigration Department referring to the medical condition of the 1st Applicant. After stating that the 1st Applicant was a permanent resident in Hong Kong, the letter said,

“We have senior counsel’s opinion that if Mr Choi Ka Tak is removed, the right of Ms Li Nim Han, a permanent resident, “to raise family freely” as protected by Article 37 of the Basic Law will be seriously affected. The decision to remove Mr Choi will effectively require his wife and infant son to move to the mainland with him or else separate. (For your further information, the son of Ms Li Nim Han and Mr Choi is only one and a half years old [a copy of his birth certificate is attached])

Because you do not seemto have considered the case of our client from this angle and because of the diagnosis of Doctor on 22 December 2008, we invite the Director to reconsider Mr Choi’s situation and allow Mr Choi to stay in Hong Kong under s 13 Immigration Ordinance.

If the Director is prepared to look at the case again, we would be happy provide you more information about the present situation of the family and the likely consequences of an enforced separation.

We trust that your department will reconsider our client’s case and revert to us as soon as possible. We look forward to receiving a favourable reply from your side.”

10. In view of these developments, the Director conducted a second review of the case on 6 January 2010. According to the internal minutes, after the review, it was concluded that the case did not merit special consideration on humanitarian/compassionate grounds. The solicitor was informed as to the decision of the Director to uphold the removal order by a letter of 26 March 2010. The letter also mentioned that the removal of the 2nd Applicant had been temporarily suspended as he had applied for legal aid to appeal against the judgment in HCAL 97 of 2007. The Director indicated that he would execute the removal order as soon as practicable if there was no indication that the 2nd Applicant was actively pursuing the appeal.

11. After some correspondence, on 28 December 2010 solicitor for the Applicants indicated that they were preparing for judicial review to challenge the decision of the Director set out in the letter of 26 March 2010. Eventually, the present Form 86 was filed on 30 May 2011.

The scope of the challenge: the 1st Applicant’s right under Article 37

12. It should be stated at the outset that the Applicants do not and cannot rely on any rights under the Hong Kong Bill of Rights in the present proceedings. Though there are provisions dealing with different aspects of family life in Articles 14 and 19 of our Bill of Rights, the Applicants cannot rely on them to override the power of the Director to enforce the removal order against the 2nd Applicant because Section 11 of the Hong Kong Bill of Rights Ordinance Cap.383 provides,

“As regards persons 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.”[1]

13. Neither can the Applicants rely on the ICCPR in conjunction with Article 39 of the Basic Law. This is the result of the immigration reservations made in respect of Hong Kong when the United Kingdom acceded to the ICCPR and the words “as applied to Hong Kong” in Article 39: see the explanation by Stock J (as he then was) in Santosh Thewe v Director of Immigration [2000] 1 HKLRD 717 at p.721H to 722H; and more recently the judgment of the Court of Appeal in Ubamaka v Secretary for Security [2011] 1 HKLRD 359.

14. Further, no matter how one interprets the right under Article 37 of the Basic Law, it cannot be an absolute right to have one’s family members to enter and remain in Hong Kong without regard to immigration control. Mr Dykes sensibly and properly did not argue for such a right on behalf of the Applicants. Given the non-resident status of the 2nd Applicant, counsel had to accept that he could only enjoy the right conferred under Chapter III of the Basic Law “in accordance with law” under Article 41. Since the law does not give him any right of abode in Hong Kong (as he is not a permanent resident as prescribed by Article 24) and he has no right to enter or remain in Hong Kong, he cannot rely on Article 37 to resist a removal order.

15. Though there are references to the United Nations Convention on the Rights of the Child in the Form 86, it was no longer pursued at the hearing. In the light of my analysis below as to Article 37 and the authorities[2] cited by Mr Chow SC, the Applicants cannot succeed by reference to that Convention.

16. Mr Dykes therefore focused on the 1st Applicant’s right under Article 37.

The substance of Article 37 rights

17. Article 37 of the Basic Law provides,

“The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”

18. The Chinese version, which should have precedence in the event of discrepancy[3], must also be borne in mind,

“香港居民的婚姻自由和自願生育的權利受法律保護。”

19. As submitted by Mr Chow, we are not concerned with the freedom of marriage in the present case. The 1st and 2nd Applicants are married and there is no suggestion that they were prevented from doing so....

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