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Hong Kong courts

High Court orders Hong Kong’s Immigration Department to review case after woman denied visa for mentally ill sister in India

  • Department failed to act reasonably when it concluded there were no humanitarian grounds in case
  • It had argued woman had the option to move back to India
PUBLISHED : Friday, 19 October, 2018, 9:48pm
UPDATED : Friday, 19 October, 2018, 10:24pm

A permanent resident has prevailed in her legal challenge against the Immigration Department’s refusal to allow her mentally ill sister in India to live with her in Hong Kong.

After a two-year legal battle, High Court judge Mr Justice Thomas Au Hing-cheung on Friday ruled the department had failed to act reasonably when it concluded there were no “exceptional humanitarian and compassionate” grounds arising from the woman’s case.

But uncertainties remained, as the judge only ordered the department to look again at the case, rather than demand that it grant a visa, which the woman – known as SS in court – said her sister had been deprived of.

SS, 46, a Hong Kong permanent resident for more than a decade, lodged a judicial review against the director of immigration in 2016, after her younger sister’s dependent visa application was rejected in February that year.

The sister, 44, suffers from borderline intellectual functioning and schizophrenia, requiring her family’s attention back home in Mumbai. Their father, 70, has taken care of the sister since their mother died in 2012.

The plan was for the pair to move to Hong Kong, but only the father’s visa application was approved.

On Friday, Au said the department had selectively considered doctors’ opinions, ignoring that the sister’s condition made it necessary for her to depend on her family’s care.

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The department, instead, relied on the part where doctors said it might be difficult for the sister to adapt to a new place, that is, Hong Kong.

“It must be relevant for [the director] to take into account the fact that she was to remain in India alone without the family care to see whether this conclusion was sound,” Au said.

He added it would be unreasonable for the department to not consider that had the father left India, the sister would effectively be left unattended.

While the department argued SS had the option to move back to India, Au stressed that she, being the sponsor of her sister’s application, was already a permanent resident and had established her right to be in Hong Kong.

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Born in Mumbai, SS moved to Hong Kong in December 1998, months after she got married. She and her husband had lived in the city since then and in 2004 had a son here. Two years after the boy was born, the couple acquired permanent residence.

Wrapping up his judgment, Au also concluded there was procedural unfairness before the department made its decision.

Human rights lawyer Mark Daly, who helped the woman, noted it took two years for the case to be resolved.

A department spokesman said: “We are studying the judgment carefully and shall seek legal advice as necessary before deciding the way forward.”