Family can challenge expulsion
A MAINLAND family who claim they became stateless after their Lesotho passports were cancelled in 1992 can challenge the Director of Immigration's decision to expel them, the Court of Appeal held yesterday.
Mr Justice Bokhary, giving judgment for the court, said it was at least arguable the director was wrong not to consider their apparent statelessness when he decided they must leave Hong Kong.
Simon Yin Xiangjiang, his wife, Able Pan Zeyan, and their children, Johnny and Amy, wish to remain in the territory.
The court heard the family bought Lesotho passports for $250,000 in August 1991, but four months later, the Lesotho Government cancelled all passports issued to People's Republic of China citizens. By this time, the family, who were in Hong Kong, had cancelled their Chinese nationality.
The wife and son first challenged the director's refusal to alter their visitors' status through the courts in 1992, but lost. It was then put to the director that their statelessness entitled the family to remain permanently in the territory.
The director, however, disagreed and required them to leave by June 29 last year. Leave was given by Mr Justice Kaplan in July to challenge this, but in December Mr Justice Mayo set aside leave on the grounds of abuse and lack of an arguable case.
Yesterday, the Court of Appeal overturned this decision, holding Mr Justice Mayo was wrong to find it was an abuse of process, being a second attempt to litigate matters that had been resolved by an earlier judicial review.
Mr Justice Bokhary said the first judicial review was brought only by the mother and son against a refusal to alter their conditions of stay, while this one was brought by all four members of the family challenging an expulsion order.
He also held that it was arguable the director should have taken into account their alleged statelessness when reaching his decision.
The judge said the matter would now be fully argued before a High Court judge, unless the director decides to reconsider his decision, taking the question of nationality into account.
The Yins, represented by Gerard McCoy, were awarded the costs of the appeal and the hearing before Mr Justice Mayo.
The court also comprised Mr Justice Mortimer and Mr Justice Liu.
