A win and a loss for couple in residency fight
Austin Chiu and Chris Ip
A win and a loss was the tally for a Filipino couple - both of whom have been in Hong Kong more than 20 years - when judgment was handed down yesterday in the second of three major right of abode cases for domestic helpers.
Daniel Domingo won his review of the government's rejection of his application for permanent residence but his wife Irene's case was rejected as she had previously breached her conditions of stay.
Daniel Domingo, a domestic helper for most of his 26 years in Hong Kong, overturned a 2010 decision by the Registration of Persons Tribunal to dismiss his appeal over the rejection of his application for a permanent identity card in 2008.
In his judgment, Court of First Instance Judge Johnson Lam Man-hon ruled the tribunal had erred in law.
But Lam said Irene Domingo, who has been in Hong Kong for 29 years, failed the seven-year stay requirement for permanent residence because she had overstayed for about 11 months. She overstayed when she was dismissed by her employer and awaiting the result of her appeal against the tribunal's decision.
Lam ordered that the husband's case be sent back to the tribunal for reconsideration unless his lawyer or the government's lawyers objected.
Domingo's victory came after a September judgment that found in favour of domestic helper Evangeline Banao Vallejos and ruled unconstitutional an immigration provision that excludes foreign domestic helpers from being 'ordinarily resident' in Hong Kong. Vallejos' case was remitted to the tribunal on October 26 by the same judge.
At issue during the Domingos' hearing was whether the couple's acceptance of an offer of unconditional stay in November 2007 meant they had to accrue their period of ordinary residence from that date, ignoring their previous stay in Hong Kong.
The court heard earlier that the Immigration Department struck a deal with the Domingos giving them unconditional stay, a step below permanent residence, in exchange for their withdrawing an appeal against the Commissioner of Registration's decision to refuse their first right of abode application filed in 2006.
Lam ruled that the government could not cite the legal principle of estoppel to prevent the couple from claiming ordinary residence in Hong Kong before the deal because the term was not properly incorporated in the unconditional stay offer.
University of Hong Kong legal scholar Eric Cheung Tat-ming agreed with that decision, saying fundamental rights are too important to, in cutting a deal, be taken away. 'Basically you are just bribing someone to forgo one's constitutional right,' he said.
A Security Bureau spokesperson would not disclose how many deals like this were offered to domestic helpers, saying that as legal proceedings were continuing, providing information would not be appropriate.
In dismissing the wife's case, Lam wrote: 'I fail to see why there should be a distinction in this regard between an overstayer and a person who had sneaked into Hong Kong without any permission to enter.'
She would be able to claim permanent residency in 2014, when she will satisfy the seven years' continuous residence requirement. The couple's solicitor, Mark Daly, said the husband's case was 'fairly exceptional' and unlikely to have a bearing on many others. Whether he qualifies for permanent residency or not is still up to the Vallejos case outcome, and the decision of the tribunal. But Daly said the verdict on the wife 'will probably have a more far-reaching effect' and the couple were 'still considering appeal grounds at this point'.