Title:
Comilang v. Commissioner of Registration
Court:
Hong Kong Court of First Instance
Date:
15 June 2012
CRC Provisions:
No specific provisions mentioned.
Other International Provisions:
International Covenant on Civil and Political Rights (ICCPR), Article 12(4): Right to enter one’s country
International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 10(1): Protection to be accorded to the family
Domestic Provisions:
Basic Law, Article 37: Right to raise a family
Basic Law, Article 39: Application of ICCPR in Hong Kong includes the reservations entered
Bill of Rights Ordinance, Section 11: Immigration reservation to the Bill of Rights and ICCPR
Case Summary:
Background:
The complainants, a non-permanent resident mother and her permanent resident daughter, sought judicial review of a decision by the Director of Immigration to reject an application by the mother to extend her stay in Hong Kong to look after her daughter on the basis of their rights under the ICCPR, ICESCR and CRC.
Issue and resolution:
Immigration and the application of international treaties. The Court declined to review the Director of Immigration’s decisions, finding that the international conventions did not give the complainant an enforceable right to remain in Hong Kong.
Court reasoning:
The Court confirmed that the ICCPR, ICESCR and CRC do not have the force of domestic law in Hong Kong independent of any domestic legislation implementing the treaty provisions. The Court found further that a reservation entered by Hong Kong to exclude immigration matters from the scope of the ICCPR and the CRC meant that the complainants could not rely on them to obtain a change of immigration status in any event. These reservations also meant that the treaties could not give rise to a legitimate expectation that the relevant provisions would be considered by the Director when reaching his/her decision. The ICESCR did not assist the complainants as it is not a source of binding rights in Hong Kong law. The Court also found that the immigration reservations in Section 11 of the Bill of Rights Ordinance prevented the daughter from invoking her rights under the Hong Kong Basic Law to grant her mother a derivative right to stay.
Excerpts citing CRC and other relevant human rights instruments:
[34] Since the resumption of sovereignty in 1997, the ICCPR is given constitutional backing by virtue of Article 39 of the Basic Law. Article 39 refers to “the provisions of the ICCPR … as applied to Hong Kong shall remain in force”. This means that the immigration reservation (and Section 11 of BORO) continues to apply, see Ubamaka v Secretary for Security [2011] 1 HKLRD 359.
[41] … Section 11 gives effect to the immigration reservation for the ICCPR. That reservation was a significant qualification to the application of the ICCPR in Hong Kong prior to 1 July 1997. Since then, it has been constitutionally entrenched under Article 39 of the Basic Law. This provides a relevant context that one must take into account in the construction of the other provisions of the Basic Law, including Articles 24 and 37 relied upon by the Applicants.
[54] … Even though the ICCPR and ICESCR are given constitutionally backing in Article 39 of the Basic Law, it is also provided in the same article that these international conventions shall be implemented through the laws of Hong Kong. In other words, they do not by themselves have the force of law.
[72] This brief survey of the Hong Kong jurisprudence shows that over the years the courts in Hong Kong have steadfastly maintained a uniform approach as described by Cheung J in MA and Gurung Deu Kumari and challenges to decisions of the Director based on family rights or family re-union grounds, irrespective of the forensic arguments deployed, involving the Basic Law, BoR, ICCPR, ICESCR, CRC, have consistently been rejected in view of the immigration reservations and the special circumstances of Hong Kong.
Follow Up:
The decision was overturned on appeal by the Hong Kong Court of Appeal in CACV183/2012, but on a separate ground. The comments concerning the international conventions were not disturbed, and have subsequently been cited with approval by the Court of Appeal in Safder Tehseen v Permanent Secretary for Security (unreported, CACV 167/2012, 6 June 2013).
CRIN Comments:
CRIN believes this decision is not in compliance with the CRC. Article 3 paragraph 1 explicitly requires the best interests of the child to be the primary consideration ‘in all actions concerning children’. This includes decisions by administrative authorities, such as the Director of Immigration in Hong Kong, which do not exclusively focus on the welfare of the child: in its General Comment No 14, the Committee on the Rights of the Child emphasised the strong legal obligation to ‘ensure that the child’s best interests are appropriately integrated and consistently applied in every action taken by a public institution’. The Committee further indicated that to ensure compliance, States Parties should amend domestic law to ‘ensure that the requirement to consider the child’s best interests is reflected and implemented in all national laws and regulation’.
Citation:
[2012] HKCU 1282; HCAL 28/2011 (15 June 2012)
Link to Full Judgment:
http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=82223&QS=%2B&TP=JU
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.