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Foreign Domestic Helper cases and NPCSC Interpretation

Foreign Domestic Helper cases and NPCSC Interpretation. Eric TM Cheung Assistant Professor, Faculty of Law, HKU 18 November 2011. Recent Court Cases .

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Foreign Domestic Helper cases and NPCSC Interpretation

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  1. Foreign Domestic Helper cases and NPCSC Interpretation Eric TM Cheung Assistant Professor, Faculty of Law, HKU 18 November 2011

  2. Recent Court Cases • Three cases heard and determined by Lam J in recent months in respect of the challenge by some foreign domestic helpers to the refusals of the Commissioner of Registration to issue them permanent identity cards. • 1. Valiejos Evangeline B v Commissioner of Registration HCAL 124/2010, 30/9/ 2011 (with another decision made on 28/10/2011 dealing with the stay of execution or suspension order pending appeal). • 2. Domingo Irene Raboy v Commissioner of Registration HCAL 127/2010, 3/11/2011 • 3. Gutierrez Josephine B v Commissioner of Registration HCAL 136/2010, 10/11/2011

  3. First Case • Valiejos Evangeline B v Commissioner of Registration HCAL 124/2010, 30/9/ 2011 • Only Issue before the Court: whether Section 2(4)(a)(vi) of the IO is inconsistent with the Basic Law: • S 2 (4) For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong- • (a) during any period in which he remains in Hong Kong-(vi) while employed as a domestic helper who is from outside Hong Kong

  4. Figures provided by Government • 1974: only 881 FDHs • 1986: number of FDHs was increased to 28,951. • End of 1990: 70,335 FDHs. • 31 December 2010: 285,681 FDHs here with 117,000 having been continuously working in Hong Kong for more than 7 years. • Alarming message from media: If the court rules against the Government in that case (i.e. holds that section 2(4)(a)(vi) of the IO is inconsistent with the Basic Law) => over 100,000 FDHs will get (or easily ) get right of abode in Hong Kong • Court will very likely rule against the Government => should seek an NPCSC Interpretation to make sure that the FDHs cannot get right of abode

  5. Relevant Basic Law Provision • Basic Law Article 24(2)(4): • “Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region.” • => Three requirements to be satisfied if the person is not of Chinese nationality; • (1) Entered Hong Kong with valid travel documents; • (2) Ordinarily resided in Hong Kong for a continuous period of not less than seven years; • (3) Having taken Hong Kong as his or her place of permanent residence.

  6. Earlier CFA Decisions • Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278: requirement (2) (continuousordinary residence for 7 years) must be satisfied immediately before the application for the right of abode • Appeal Committee of CFA in Sun Jie v Registration of Persons Tribunal FAMV 20/2006, 28/9/2006: Absence from Hong Kong for a period during which the applicant did not have permission to stay in Hong Kong had broken the continuity of his ordinary residence for the purpose of acquiring permanent residence in Hong Kong; Chan PJ: “The applicant was given permission to remain and hence to acquire ordinary residence in Hong Kong on the basis of his employment. When his employment was terminated, he no longer had any permission to remain and his ordinary residence also came to an end.”

  7. Earlier CFA Decisions • Prem Singh v Director of Immigration (2003) 6 HKCFAR 26: As for requirement (3) (having taken HK as place of permanent residence), the applicant has to satisfy the Director of Immigration both that (a) he intends to establish his permanent home in Hong Kong and (b) that he has taken concrete steps to make Hong Kong, and Hong Kong alone, his place of permanent residence (N.B. Also affirmed that a fair and reasonable statutory scheme for the proper verification of a person’s claim to right of abode is constitutional and that until such claim is verified the applicant does not enjoy the rights of a permanent resident, see para.56)

  8. Ribeiro PJ: “The permanence requirement in BL art.24(2)(4) demands more in at least two respects. The intention must be to reside, and the steps taken by the applicant must be with a view to residing, in Hong Kong permanently or indefinitely, rather than for a limited period. Such intention and conduct must also be addressed to Hong Kong alone as the applicant’s only place of permanent residence.” • Bokhary PJ: “Persons who eventually acquire permanent resident status by virtue of art.24(2)(4) would have started off by having to rely on an exercise of administrative discretion in favour of permitting them to enter and then to remain for a certain period. Thereafter they would have had to rely on successive exercises of administrative discretion in favour of permitting them to remain for further periods. But once they manage to bring themselves within the plain terms of art.24(2)(4), their position ceases to be subject to administrative discretion and comes under constitutional protection.”

  9. Opening remarks of Lam J’s in First Case • This case “revolve around the proper construction of Article 24(2)(4), in particular, the expression “ordinarily resided”. The proper construction of the expression is a question of law which has to be decided by way of legal analysis. My duty is to apply the law in resolving this question without regard to any other arguments based on politics or socio-economic considerations.” (para 4) • “I have no intention of stopping people from having discussion on the topic based on their own perspectives. However, what I should not allow to happen is to let such discussion influence this court in the process of judicial adjudication. Unlike the political process, the judicial process is not subject to any lobbying. It is important that judges are able to perform their judicial function independently, impartially and fearlessly…”. (para 5)

  10. Decision of Lam J • Quoted with approval the judgment of Stock J in Chong Fung Yuen, viz. “the Basic Law is not merely some generalization to the local legislature as to the path that might be taken; instead it defines who shall have the status of permanent resident and there cannot be any derogation of it by local legislation.” (para 138) • Quoted Ribeiro PJ’s adoption of the Shah test in Prem Singh for the settled purpose for ordinary residence: “The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose… indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. …All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.” (para 114)

  11. Decision of Lam J • Some important concepts of Ordinary Residence as set out in earlier CFA cases (see para 145): • The expression should not be interpreted by the considerations which apply when determining domicile (Fateh Muhammad at p.283J); • As a starting point, “ordinarily” is to be contrasted with “extraordinarily” or “out of ordinary” (Fateh Muhammad at p.284A to B); • Contrasting with the permanence requirement, ordinary residence does not require the propositus to have the intention to reside in Hong Kong permanently or indefinitely with Hong Kong alone as his permanent residence

  12. Decision of Lam J • Held: Those special features relating to FDHs identified by Government whether taken individually or collectively cannot take a FDH’s residence out of the concept of ordinary residence within the context of Article 24(2)(4). • => It follows that the Impugned Provision, by excluding the FDHs as a class from the benefit of Article 24(2)(4), derogates instead of clarifies the meaning of that Article.

  13. Second Court Cases • Domingo Irene Raboy and Domingo Daniel L v Commissioner of Registration HCAL 127/2010 and 128/2010, 3/11/2011 • Two Issues: • Whether the Applicants are estopped from asserting that their respective ordinary residence in Hong Kong commenced on a date earlier than 14 November 2007 (Held: No estoppel); • Whether Mrs Domingo satisfied the requirement of having a continuous ordinary residence of 7 years immediately before the date of her relevant application, viz. 4 March 2008. (Held: Mrs Domingo’s presence in Hong Kong from 10 January to 14 November 2007 is excluded by reason of its being unlawful in nature).

  14. Third Court Case • Gutierrez Josephine B v Commissioner of Registration HCAL 136/2010, 10/11/2011 • The mother is a Philippine national and she has been working in Hong Kong as a foreign domestic helper since 1991. Son was born in HK. • Their appeals to the Registration of Persons Tribunal were dismissed on 31 May 2010. • The Tribunal paid special regard to the answers given by the mother to the Director and came to the conclusion that she maintained a strong tie and connection with the Philippines • The Tribunal could not conclude that the mother had taken any steps with a view to residing permanently in Hong Kong

  15. Decision of Lam J • Court’s role: “though it is ultimately for the court to decide what is the law pertaining to the ordinary residence and the permanence requirements, the primary decision maker who makes the relevant finding of facts and applies the facts to the law is the Director (and on appeal, the Tribunal). In respect of matters which fall within the primary remit of the Director, the court would only intervene on traditional judicial review grounds though examining the primary decisions with anxious scrutiny given the fundamental nature of the right being involved.” (para 14) • => “insofar as the application of the relevant legal principle involves value judgments, the court would not disturb such value judgments on the part of the primary decision maker unless it is shown to be unreasonable on the enhanced Wednesbury standard.” (para 15)

  16. Decision of Lam J • There has to be some objective concrete steps taken by an applicant for the purpose of making Hong Kong his or her only permanent residence; • Such steps must be addressed to the taking up of Hong Kong, and Hong Kong only, as permanent residence. Thus, steps taken to sever one’s link with his or her country of origin are not enough.

  17. NPCSC Interpretation • Should Government seek referral for NPCSC Interpretation? • Two Systems of Interpretation: see Lam J’s helpful discussions in the First Case

  18. Any Further Q&As?

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