Room for more compassion

AS TWO THOUSAND right-of-abode claimants brace themselves for moves to send them back to the mainland, many distressing cases are coming to light. Lin Yeung-ming, 19, faces the heartbreak of separation from her twin sister. Li Xiru, 73, will no longer be able to look after his 95-year-old father. And a 101-year-old blind and deaf woman will be split from her daughter. Such cases would surely, by any normal definition of AAhumanitarian grounds'', warrant a decision by the Government to allow the abode seekers concerned to stay in Hong Kong. But these claims have been rejected by the Director of Immigration. Indeed, it was revealed last week that 500 cases had been considered and every one of them thrown out. As a result, the Government has been branded heartless and callous. The rejections have also highlighted the secretive way in which the director goes about exercising his discretion in such matters and raised the issue of whether there is need for change. With many abode seekers pursuing further legal action, the courts are likely to be asked to reconsider the extent to which they can interfere in the process. There are suggestions from some lawyers that Hong Kong is in danger of lagging behind developments in other parts of the world which have seen the courts prepared to take a more active role in defending human rights. AAIt is important and we particularly need this in Hong Kong, where you don't have a democracy to protect our rights,'' said solicitor Mark Daly. AAAs society becomes more sophisticated, it is important for the courts, in order to be fair, to establish some of these principles.'' The current legal position appears to give little hope to applicants who fail to succeed with humanitarian claims. The traditional position is that the decision in each case is for the director, not the judges. Courts will only interfere in the most extreme cases, where a decision is regarded as outrageous. Indeed, the courts have ruled that there is not even an obligation on the director to consider humanitarian grounds. The Immigration Ordinance does not impose such a duty on him. This position was adopted by the Court of Final Appeal in a landmark abode ruling in December 1999. But one of the five judges in that case, Mr Justice Kemal Bokhary, disagreed, saying that for the director to ignore humanitarian considerations would be AAexactly the same as throwing the applications in the wastepaper basket unread''. The judge added: AAIn Hong Kong, where we aspire to be humane as well as orderly, it is plain that the director would have been duty-bound at least to read the applications to see if they ... disclosed a strong and obvious case.'' A AAstrong'' case was one which stood out even among other cases deserving sympathy. An AAobvious'' one would be where the key facts were clear, said Mr Justice Bokhary. In the current right-of-abode cases, the director has promised to consider humanitarian grounds. But the criteria used for this process have not been made public. In the light of some of the more extreme cases which have recently been rejected, it is difficult to understand what they could be. An Immigration Department spokesman said it would be inappropriate to confine consideration to a set of hard and fast criteria. If one case is successful, similar applications should also be allowed, and therefore, in order to maintain effective immigration control, successful applications were AAthe exception rather than the norm'', he added. In the last three years exceptional approval was granted to 231 mainland residents, said the spokesman. Disappointed applicants are not told why their claims have failed. The courts have taken the view that the director has no legal duty to provide reasons for his decisions. Mr Justice Henry Litton demonstrated this approach in a Court of Appeal ruling delivered in 1993. AAThe exercise of discretion ... is only made in exceptional cases. How wide this should be is a matter entirely for the judgment of the director,'' he said. But there have, in more recent times, been examples of the bench expressing disquiet about decisions to reject human rights claims and the inability of the courts to step in. In July 2000, Mr Justice Peter Cheung expressed regret about being unable to help a mother who would, as a result of being removed, be unable to look after her six-year-old daughter, who suffered from epilepsy. He was AAdisturbed'' that the director was not prepared to allow her application on humanitarian grounds. AAThis is obviously a case in which the director could have exercised the discretion differently without causing the slightest harm to the established (immigration) policy,'' the judge added. In January last year, the same judge said he felt AAextremely uncomfortable'' with a decision by the director not to allow a divorced mother to stay in Hong Kong to look after her 14-year-old daughter. But again, he felt the law prevented him from ruling in her favour. Both cases raised the issue of the extent to which the director should take international human rights conventions into account when considering humanitarian grounds. Mr Daly, who represented the mother in the first case, said it was interesting to note that after losing in the Court of First Instance, both women were subsequently permitted to stay. The first was given a one-way permit from the mainland and the second was, on reconsideration by the director, allowed to stay on humanitarian grounds. In a third case in April last year, again involving the impact of international conventions, the applicants were also permitted to stay after losing in the Court of First Instance, Mr Daly said. He wondered whether the Government had been keen to prevent these cases going to the Court of Appeal, where a new precedent giving judges a more active role in monitoring the director's decisions may have been set. AAI am sure the Government is pleased that the law has not been challenged at Court of Appeal level. We were itching to take it to the Court of Appeal,'' he said. Another solicitor, William Clarke, who represented the applicant in the second case, said he had been involved in around six cases in the past 10 years where the director had allowed an applicant to stay on humanitarian grounds. AAUsually, they do it quietly,'' he said. Mr Clarke said he could only speculate about the reasons certain applicants were successful. AABut I do think it is fair to say the director wishes to maintain control and be the sole authority to decide on who will be permitted to remain. He does not want to be obliged by international legal instruments to have to let people remain (on humanitarian grounds) who do not have the right.'' A ruling by the House of Lords in England last year demonstrates the trend there for courts to take an active role when considering decisions which affect fundamental human rights. The House of Lords, which included a non-permanent judge of the Court of Final Appeal, said courts had to consider whether the limitation of a right was necessary to meet a pressing social need and whether it was proportionate to the overall aim being pursued by the Government. In the current Hong Kong context, a court might ask whether the splitting up of identical twins is really necessary in order to preserve the SAR's control over immigration from the mainland. Mr Daly said he believed principles of this kind could in future be adopted by the SAR's courts. The director also might be requested to provide reasons for his decisions. AAYou have to have the onus on the Government. It is part of the basic development of constitutional litigation that there has to be some evidence, so they cannot just do whatever they want,'' he said. Legislator and right-of-abode barrister Margaret Ng Ngoi-yee said: AAThe law is moving on in other jurisdictions when it touches on fundamental human rights. The courts will look at these decisions more closely. Is the decision fair? Is it necessary? Do you have to adopt a machine-gun approach and refuse any kind of leniency?'' Cliff Buddle edits the Post's opinion pages