Immigration stand on Filipino mother misconceived, appeal judges say

Policy that effectively requires a young child to support her non-local mother as a condition for her to stay on in the city is unsound, judges say

PUBLISHED : Friday, 03 May, 2013, 12:00am
UPDATED : Friday, 03 May, 2013, 5:40am

The Court of Appeal has quashed a 2010 immigration decision rejecting a foreigner's plea to remain in the city to look after her young child, who is a permanent resident.

The official immigration approach - which was based on a policy that required the girl, then four years old, to support her mother financially - was "fundamentally misconceived", High Court Chief Judge Andrew Cheung Kui-nung and two other judges ruled yesterday.

The judges unanimously ordered that the director of immigration reach a fresh decision on Milagros Tecson Comilang, a Filipino former domestic helper who has been remaining in Hong Kong on a "tolerated" basis.

Comilang married a Hong Kong resident in 2005 but he obtained a decree to nullify their marriage in 2009 on the basis that he was already married when they tied the knot. That year, the Family Court granted her custody of the child, who was born three years earlier, and she applied for permission to stay on so as to be with her daughter.

The immigration director rejected her application the following March, saying she was not aged over 60, and her daughter was not "able to support [Comilang's] living at a standard well above the subsistence level".

The two conditions are part of a policy that requires the applicant to be a dependant of the local resident.

Both the Registration of Persons Tribunal and the Court of First Instance dismissed her subsequent appeal and judicial review, respectively.

Yesterday, the Court of Appeal overturned the latter decision. "In the circumstances," Mr Justice Joseph Fok wrote, "treating [the minor] as a 'sponsor' for the purposes of the dependency policy is illogical. Having been presented with an application which was a 'square peg', the director was in effect seeking to ascertain if that peg would fit in the 'round hole' of his dependency policy."

Fok said it was "plainly fundamentally misconceived" to apply the policy to the case. "There is no correlation between how the application was supposedly understood … and how it was actually dealt with by the director."

He also ordered the Immigration Department to bear all legal costs.

The judicial review, nevertheless, is far from being a total victory for Comilang, as her case is merely remitted to the director, without the court imposing its own decision in her favour.

A government spokesman said: "The government is disappointed with the judgment of the Court of Appeal that the appeal be allowed." It would obtain legal advice before considering the way forward, he said.

Civic Party lawmaker Claudia Mo Man-ching said: "The department should have considered all compassionate circumstances. I hadn't expected our government to be so rigid."