Kemal Bokhary

Let abode seekers stay, says judge

PUBLISHED : Thursday, 26 July, 2007, 12:00am
UPDATED : Thursday, 26 July, 2007, 12:00am

In minority view, senior justice seeks discretion in favour of immigrants

One of the city's most senior judges yesterday renewed a call for the government to grant residency to right-of-abode seekers still in the city.

Mr Justice Kemal Bokhary, a permanent judge of the Court of Final Appeal, made the suggestion in a minority judgment appended to a case concerning several outstanding claims by abode seekers.

'With the last of these sad cases in sight,' Mr Justice Bokhary wrote, 'I cannot help wondering what could be more in keeping with the true spirit of reunification - now in its 10th year - than a humanitarian exercise of executive discretion in favour of the abode seekers still here in this city of, after all, immigrants.'

In response to Mr Justice Bokhary's comment, a spokesman for the Immigration Department last night said a judgment of the Court of Final Appeal in January 2002 established a clear legal basis for the settlement of right-of-abode cases. He said the government would continue to follow the judgment.

He added that right-of-abode claimants who did not benefit from the judgment must return to the mainland. If they wished to return to Hong Kong to settle, they must apply to the relevant mainland authorities for a one-way permit.

The seven claims dealt with by the court yesterday stemmed from the controversial 2002 judgment, in which the claims of several thousand abode seekers were refused.

Some cases were referred to Mr Justice Michael Hartmann in the Court of First Instance for determination of their merit before a decision on whether or not they would be allowed to stay. Mr Justice Hartmann recommended all seven cases in the tranche be dismissed, and the CFA yesterday adopted those findings.

The CFA also rejected a request from the Director of Immigration that legal aid for 11 of the 14 cases still waiting to be heard by Mr Justice Hartmann be refused and that their cases be dealt with directly by the Court of Final Appeal.

'We cannot assume that the cases of these applicants are completely without any prospect of success,' wrote the majority, comprising Chief Justice Andrew Li Kwok-nang, permanent judges Mr Justice Roberto Ribeiro and Mr Justice Patrick Chan Siu-oi, and non-permanent judge Sir Anthony Mason.

'Having waited eight years, they should not be deprived of their day in court now simply because the director, rightly or wrongly, considers their cases are weak or even hopeless. This would certainly create a sense of grievance [and] is not justified by the desire to save time and costs.'

Mr Justice Bokhary's minority report reiterated his dissenting opinion in the 2002 judgment. At that time, he said public statements by government officials had created an expectation in the minds of those abode seekers already in Hong Kong that they would be eligible to stay.

Lin Tao-cheng, chairman of the Hong Kong Parents' Association for Fighting for Right of Abode, welcomed Mr Justice Bokhary's comments.

'I am happy that the judge made such a comment. His remarks make us feel hopeful, as we know the judge has sympathy for us.

'I hope the government will exercise discretion and let our families reunite in Hong Kong and put an end to this long and torturous legal battle,' he said.

The association, which represents about 3,000 families fighting for the right of abode, said it was planning to hold a petition in Beijing to seek help from the central government.