Helper has to wait for court ruling

PUBLISHED : Thursday, 27 October, 2011, 12:00am
UPDATED : Thursday, 27 October, 2011, 12:00am


The Court of First Instance reserved judgment yesterday on a third judicial challenge brought by foreign domestic helpers over right of abode.

Filipino Josephine Gutierrez, a domestic helper in Hong Kong since 1991, and her son, Joseph, 14, who was born in the city, had challenged a refusal by immigration authorities to grant them permanent identity cards and rejected their appeal.

At issue was whether the Registration of Persons Tribunal was right to conclude that the mother's stay would not satisfy the requirement of treating the city as her permanent residence. The tribunal rejected the appeal against the decision by the Commissioner of Registration in 2008 to deny permanent residence.

The court has also to decide whether it was wrong for the tribunal to rule that Joseph, as a minor at the time of the application, was incapable of making a decision of where he adopted as his permanent residence and that any ruling on his mother's status would apply to him automatically.

Gladys Li SC, for the plaintiffs, called the tribunal's decision 'deeply flawed' because it failed to find on whether Gutierrez had treated Hong Kong as her permanent place of residence.

The tribunal failed to consider the fact that Gutierrez had integrated into Hong Kong society, did not have a home in Philippines, was active in church and charity activities and was regarded as a member of her employer's family. Guiterrez had de-registered herself as a voter in the Philippines and had taken out a lifetime insurance protection policy in Hong Kong.

But David Pannick QC, for the government, said those factors were not enough to satisfy the strict test and Gutierrez needed to have taken 'positive steps' to adopt Hong Kong as her place of permanent residence. An example was to own a flat in Hong Kong, he said.

Her intention to make Hong Kong her home was not sufficient to satisfy the test, Pannick said.

In relation to the son, Li said the status of the mother would only be a factor for the tribunal to consider when deciding whether the boy, as a minor, had treated Hong Kong as his permanent residence.

Pannick said the situation of the mother was a determining factor. The boy had also failed the seven years' continuous stay requirement.

Mr Justice Johnson Lam Man-hon will hand down his judgment later.

Meanwhile, Mark Daly, the lawyer representing domestic helper Evangeline Banao Vallejos who won a landmark judicial review last month, said they had objected to a government application to seek a speedy appeal against the judgment.

Daly said the 'unreasonable' application for expedition denied them time to respond. He also said the legal team had filed a report accusing the government of using 'crude and unreliable' data in estimating potential immigrant numbers.