Teen wins abode as error corrected
A teenage mainlander yesterday won his right to stay in the SAR after the Court of Final Appeal clarified a mistake made in a landmark ruling last month involving more than 5,000 abode seekers.
The panel of five top court judges unanimously quashed the removal order against Lau Pong, 18, and declared he was entitled to right of abode under general legal principles established by the court in the ruling handed down on January 10, which denied residency to most of the claimants.
Mr Lau's lawyers wrote to the court shortly after the ruling, arguing the judges had failed to take into account evidence which qualified Mr Lau for abode.
The lawyers said Mr Lau's father had filed an application for legal aid within the period of a government 'concession' and the Legal Aid Department had also immediately notified the Immigration Director.
The court ruled that a government concession allowing certain applicants right of abode should also cover those who made a claim for legal aid, provided the Director of Immigration was notified before January 29, 1999.
Mr Lau, whose father is a permanent resident, applied for legal aid on July 27, 1998. The Legal Aid Department provided evidence during the case that it had faxed and posted notification of the claim to the Director of Immigration the same day. This would appear to put him within the concession.
However, the court had been told the Director of Immigration was not aware of the application for legal aid until July 1999. Therefore, it 'did not amount to a claim lodged with or referred to the Director of Immigration within the concession period', according to the January 10 ruling.
In the three-page judgment handed down yesterday, Chief Justice Andrew Li Kwok-nang said the Director of Immigration now accepted that Mr Lau's application for legal aid had been received within the concession period. Counsel for the director conceded the removal order against Mr Lau should be quashed and his application met the conditions of the concession.
The Chief Justice handed down yesterday's decision along with Mr Justice Kemal Bokhary, Mr Justice Patrick Chan Siu-oi, Mr Justice Robert Ribeiro and non-permanent judge Sir Anthony Mason.
On January 29, 1999, the Court of Final Appeal granted right of abode to Chinese citizens born outside the SAR if one parent was a permanent resident. But almost five months later, the ruling was overturned by the Standing Committee of the National People's Congress after a reinterpretation of the Basic Law.
The ruling last month found that the abode seekers were subject to Beijing's reinterpretation because they were not involved in the January 1999 litigation.
The Government has said the defeated abode seekers will not be sent back to the mainland until a grace period expires at the end of next month.