Nanik Darwati v Secretary For Home Affairs

Court:High Court (Hong Kong)
Judgement Number:HCAL135/2012
Judgment Date:28 May 2013
HCAL135/2012 NANIK DARWATI v. SECRETARY FOR HOME AFFAIRS

HCAL 135/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 135 OF 2012

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BETWEEN

NANIK DARWATI Applicant

and

SECRETARY FOR HOME AFFAIRS Respondent
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Before: Hon Au J in Court
Date of Hearing: 28 May 2013
Date of Judgment: 28 May 2013

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J U D G M E N T

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A. INTRODUCTION

1. This is the applicant’s judicial review challenge against:

(1) The decision (“the 1st Decision”) of the Secretariat of the Community Care Fun (“CCF”) dated 19 December 2011 refusing her application for the $6,000.00 allowance under the “One-off Allowance for New Arrivals from Low-income Families Programme” (“the Programme”); and

(2) The decision (“the 2nd Decision”) of the Appeal Group of the Community Care Fun Allowance for New Arrivals (“the Appeal Group”) notified to the applicant on 18 April 2012 affirming the 1st Decision.

2. The applicant’s principal ground of judicial review as stated in the Amended Form 86 is that the 1st and 2nd Decisions are Wednesbury unreasonable, in that it was unreasonable for the Secretariat and the Appeal Group to have adopted the date of first issuance of her Hong Kong Identity Card as a means to determine whether or not she was a “new arrival” to be eligible for the Programme.

3. The applicant seeks the relief of (a) an order of certiorari to quash the 1st and 2nd Decisions, (b) a declaration that her application under the Programme be allowed, and (c) an order of mandamus to require the Secretary for Home Affairs (“the Secretary”) to procure the Secretariat to determine her application under the Programme in accordance with the declaration sought. Alternatively, she seeks an order remitting her application to the Secretariat for reconsideration.

B. THE FACTS

B1. The CCF and the Programme

4. The CCF is a trust fund established in January 2011, under the Secretary for Home Affairs Incorporation Ordinance (Cap 1044). The Secretary was appointed as the trustee of the CCF.

5. The stated main objective of the CCF is to provide assistance to people facing economic difficulties, particularly those who fall outside the social safety net or those within the safety net but have special circumstances that are not covered.

6. The work of the CCF was overseen and coordinated by the then Steering Committee of the CCF, which was chaired by the Chief Secretary for Administration. There are 20 non‑official members of the Steering Committee who were drawn from various sectors of the community.

7. Under the Steering Committee, there were four subcommittees to support the CCF’s operation. The Home Affairs Bureau (“HAB”) has also set up the Secretariat to coordinate cross-bureaux efforts to support the Steering Committee in mapping out and implementing the assistance programmes under the CCF.

8. The operation of the CCF is also guided by a number of principles including, among others, that the administrative cost should be minimized and any vetting process should be streamlined to ensure cost effectiveness. The CCF’s programmes seek to provide swift and direct assistance to target beneficiaries through the existing service network where possible to minimize administrative cost. The target is to limit the average administrative cost of the CCF to less than 5% of its total disbursements on a long-term basis.

9. In June 2011, the Steering Committee finalized the Programme and reported to the Legislative Council Panel on Home Affairs (“PHA”) by an LC paper (“the 2nd PHA Paper”). It is stated expressly in the 2nd PHA paper that the objective (“the Objective”) of the Programme was to “provide new arrivals from low-income families who have entered Hong Kong for settlement with additional resources to facilitate their adaptation and integration into the community, and better prepare themselves for permanent settlement in Hong Kong”. (emphasis added).

10. The Steering Committee identified the target beneficiaries eligible to apply under the Programme being those Hong Kong Identity Card (“HKIC”) holders who, among others, have entered Hong Kong for settlement for less than seven years as at 31 March 2012, and:

(1) Have entered Hong Kong from the Mainland on One-Way Permit;

(2) Have the right to land or on unconditional stay in Hong Kong; or

(3) Are staying in Hong Kong as dependents (and their spouses are Hong Kong permanent residents, or non-permanent residents with the right to land or unconditional stay in Hong Kong) (“the dependent applicants”).

11. For the purpose of implementing the Programme and the Objective, and given the criteria for eligibility set out above, the Secretariat devised that for the dependent applicants, they would satisfy as “new arrivals” for the purpose of the Programme if they meet the condition (“the Condition”) that the date of their HKIC is on or after 1 April, ie, less than seven years before the eligibility date of 31 March 2012. In other words, the Secretariat has decided to adopt the issuance date of the HKIC to assess whether a dependant applicant is a “new arrival” for the purpose of the Programme and Objective.

12. After obtaining additional injection of $1.5 billion as approved by the Finance Committee of the Legislative Council, the Programme was open for application between 3 October 2011 and 30 June 2012. The...

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