Instruct: Given a question, retrieve relevant documents that can help answer the question.
Query: Who was the judge in the case of Vallejos and Domingo v. Commissioner of Registration?
On 30 September 2011, Justice Johnson Lam of the Court of First Instance of the High Court (CFI) ruled in Vallejos' case that existing legislation restricting FDHs from qualifying for permanent residence contravened the Hong Kong Basic Law. Lam also found that Vallejos and Domingo, but not the three other applicants, had fulfilled the condition of taking Hong Kong as their only permanent home and being ordinarily resident in Hong Kong for seven years. The Court of Appeal of the High Court overturned the CFI's decision on Vallejos' case on 28 March 2012. Vallejos and Domingo then jointly appealed to the Court of Final Appeal (CFA), which heard their case on 26–28 February 2013; the CFA rejected their appeal on 25 March 2013.
The hearing on Vallejos' case began on 22 August 2011, and stretched out until the 24th. David Pannick represented the respondent, the Commissioner of Registration.[8] During the hearing, the courtroom was packed to overflowing with lawyers, journalists, and other members of the public, who took up not just the seats in the public gallery, but also those for defendants and jury members (the latter being unoccupied as the case at hand was not a jury trial but a judicial review). Another hundred people watched the proceedings on a large-screen television in the lobby, while protestors both supporting and opposing Vallejos' case faced off outside the building without incident.[9]
In 2013, after the Court of Final Appeal had finished hearing the case, Rao Geping (饒戈平) of Peking University Law School, who had earlier served as a mainland representative on the Basic Law Committee, stated that it should not be necessary for the Hong Kong government to seek another interpretation of the Basic Law either regarding Vallejos' case or the earlier Director of Immigration v. Chong Fung Yuen (which gave Hong Kong permanent residence to Hong Kong-born children of non-Hong Kong resident mainland parents). In Rao's opinion the NPCSC had already clearly explained Article 24 of the Basic Law in its 1999 interpretation in the aftermath of Ng Ka Ling v. Director of Immigration, and in particular had established that the Hong Kong government had the right to use the Immigration Ordinance to control who gained the right of abode in Hong Kong.[62]
On 28 March 2012, the Court of Appeal announced its ruling that the impugned provision (Immigration Ordinance 2(4)(a)(vi)) does not violate the Basic Law. Vallejos' solicitor Mark Daly indicated directly afterwards that his client was highly likely to appeal the decision to the Court of Final Appeal.[37]
Tourism functional constituency legislator Paul Tse raised questions about the Civic Party's links to the case, questions which were echoed by internet users including those on popular local forum Uwants as well as a Facebook group created by Tse to gather videos and articles on the potential negative impact of the judicial review.[1] Vallejos' barrister, Gladys Li, is a founding member of the Civic Party. The Liberal Party took out attack ads stating that "Civic Party core member Gladys Li is helping foreign maids to fight their residence case", echoed the DAB's warnings of massive increases in population and public expenditures, and called on the Civic Party to make a formal public statement of whether or not the party itself supported permanent residence for FDHs.[48] An editorial in Wen Wei Po the week after the ruling accused the Civic Party of being "an enemy of the people" for their alleged support of the maids' residence case.[51] Public perceptions that pan-democratic candidates supported Vallejos' case are believed to have contributed to their poor showing in the November 2011 district councils elections.[52]
Ochs v. Commissioner, 195 F.2d 692 (2nd Cir.1952) was an income tax case decided by Judge Augustus Noble Hand.
Civic Party chairman Alan Leong questioned the assumption that maids could qualify for permanent residence even if Vallejos won her case, noting that the Immigration Department required applicants for permanent residence to sign a declaration that, among other things, they had "sufficient means of income to support myself and my family in Hong Kong without assistance"; he suggested that the Immigration Department would be unwilling to accept such declarations from FDHs with a typical monthly income of little more than HK$3,000.[47] Leong went on to accuse the Liberal Party of misleading the public on the issue. An unnamed Immigration Department employee interviewed by Sing Tao Daily, in response to Leong's comments, noted that low income was not necessarily a barrier to becoming a permanent resident, and that applications from other low-income persons such as foreign students were commonly approved.[48]
Right of abode for foreign domestic workers in HK became an election issue as the Civic Party was closely identified with the legal advisers who represented one such Filipina. The court case Vallejos v. Commissioner of Registration was one of the primary case in 2011. Pro-Beijing DAB argued that 125,000 workers were eligible, and would cause unemployment in Hong Kong to rise from 3.5% to between 7 and 10%. The Pan-Democrats, particularly the Civic Party, were disadvantaged by this as many HK residents fear granting Filipinos permanent residency will affect them.
Vallejos and Domingo's appeal came before the CFA on 26 February 2013, in a hearing that would last for three days. Fordham's arguments focused on the constitutionality or lack thereof in the use of a "blanket exclusion" to prevent all people belonging to certain classes of residents from falling within the definition of "ordinarily resident" and thus eventually becoming entitled to apply for right of abode. Pannick discussed the legislature's power to define terms used in the Basic Law; he stated that foreign domestic helpers "don't form part of the permanent population" and thus it was legitimate for lawmakers to create a legislative definition of "ordinarily resident" which excluded them.[38][41] The hearing concluded on schedule.[42] On 25 March 2013, the CFA issued its judgment that the restrictions on FDH's residence and employment in Hong Kong meant that they did not fall within the definition of "ordinarily resident" for immigration purposes; the judgment did not refer to the 1999 NPCSC interpretation, and thus with no Article 158 issues at hand, the CFA rejected the Government's request for the matter to be referred to the NPCSC for further interpretation.[43]
Vallejos turned out to be one of five Philippine nationals who would file applications for judicial review. The others were applying jointly in groups of two. Daniel Domingo (the second applicant in the CFA case) and his wife Irene Raboy Domingo had been working in Hong Kong since the 1980s as FDHs, met, married, and bore three children there. They had applied for verification in April 2006, and had been granted unconditional stay but not permanent residence in November 2007. Josephine Gutierrez came to Hong Kong in 1991, where her son Joseph James Gutierrez was born in 1996; both applied for verification in December 2006. Vallejos' court date was set for 22 August, while the others were scheduled for October.[1] Vallejos stated that she hoped to retire in Hong Kong.[1]
The hearing concluded on the 23rd as scheduled.[35][36]
The day of the ruling, Hong Kong Secretary for Security Ambrose Lee announced that the government would appeal Lam's ruling, and separately would apply to stay the judgment in a hearing in October. He also stated that the Immigration Department would suspend right of abode applications by FDHs, and that such action did not amount to contempt of court as commentators had suggested.[14]
Protests continued in 2012 as the appeal date drew near. On 29 January, Filipino migrant groups held a prayer vigil in Central supporting the right of abode for foreign domestic helpers.[69] On 21 February, the first day of the Court of Appeal case, the Hong Kong Social Concern Group (香港社會關注組) organised protests calling on the government to seek an interpretation of the Basic Law from the NPCSC.[33][70]
The first applicant in the CFA case, Evangeline Banao Vallejos, is a native of the Philippines, where she was previously a businesswoman.[1] She came to Hong Kong in 1986 as an FDH, while the territory was still a British colony.[2] During her first year in Hong Kong, she switched employers, but afterwards continued to work for the family of Barry Ong for more than two decades. She performed volunteer work and became active in a church.[1] She approached the Immigration Department for verification of eligibility for permanent residence in April 2008. In November that year, the Immigration Department informed her that her application was not successful; she was not considered to be "ordinarily resident" in Hong Kong by reason of Immigration Ordinance Article 2(4)(a)(vi). The following month, she approached the Registration of Persons Office to apply for a Hong Kong Permanent Identity Card, for which she was also rejected. She appealed to the Registration of Persons Tribunal, which in June 2009 ruled against her. At that point, Vallejos applied to the Legal Aid Department for help; local law firm Barnes and Daly, as well as barrister Gladys Li, agreed to assist Vallejos in applying for judicial review to rule on whether the relevant provision of the Immigration Ordinance complied with the Basic Law. The case came to mainstream media attention in December 2010.[3]
Throughout the rest of October and November, Lam heard arguments and delivered judgments in two further FDH residence cases, namely Irene R. Domingo and Daniel L. Domingo v. Commissioner of Registration () and Josephine B. Gutierrez and Joseph James Gutierrez v. Commissioner of Registration ().[12] Among those applicants, only Daniel Domingo was found to have satisfied the "ordinary residence" requirement entitling him to apply for permanent residence; Lam found that Domingo's wife Irene's period of ordinary residence was interrupted by a period of overstay in which she remained in Hong Kong without the authority of the Director of Immigration. He separately ruled that Josephine Gutierrez had not taken positive steps to establish Hong Kong as her only place of permanent residence, meaning that she and her son Joseph James were not entitled to apply for permanent residence either.[13]
Regina Ip stated that the government would have to allocate more resources to deal with the increased workload resulting from right of abode applications by FDHs.[23] Since Lam's earlier ruling in favour of Vallejos in late September, there had been a definite rise in the number of FDHs applying for permanent residence, from just one or two such cases per month in the past, to an average of sixteen in August and September 2011, and over 20 applications on 25 October alone.[22] In total, the Immigration Department stated that it had received 148 permanent residence applications from FDHs in October.[49] A total of roughly 900 foreign domestic helpers made applications for permanent residence from October 2011 to late March 2012 when the Court of Appeal overturned Lam's ruling.[37][50]
On 4 October, the government filed an application for a stay of execution of Lam's earlier judgment.[19] David Pannick, again representing the Commissioner, had argued that the "status quo should be maintained" until appeals had been exhausted.[20] However, on 26 October, Johnson Lam ruled against the government's application for stay. He noted that his earlier ruling applied only to the case of Vallejos herself. He stated that other FDHs would be free to file applications.[21] However, he stated that it would be entirely permissible for the Immigration Department to delay processing of such applications until after appeals, and that such action would not constitute contempt of court as the government had feared.[22] He further stated that if the Immigration Department chose not to entertain other applications by FDHs, it was up to those applicants themselves to take their cases to court.[23] He also pointed out that "[s]hort of a temporary validity order, the court cannot pre-empt any person from relying on the legal principles set out in a judgment of the court"; the government did not seek such an order, and Lam doubted that the court had jurisdiction to give it. Thus, as he stated, the relief sought by the government would not shield it from suits by other right of abode applicants.[19] Vallejos' solicitor Mark Daly stated that his client's residence application was "100 percent sure" as a result.[24] The Hong Kong Human Rights Monitor was quoted as welcoming the ruling.[25]
The year after Vallejos arrived, the law of Hong Kong was amended to introduce the concept of "permanent residence". Permanent residence was a new status which would allow persons not born in the territory to gain the right of abode there. It was to be conditional on prior "ordinary residence" in Hong Kong, so that it would comply with the 1984 Sino-British Joint Declaration and the Hong Kong Basic Law Article 24(4) which would take effect in the future.[2] Foreigners who "ordinarily resided" in the territory for seven years would be allowed to apply for permanent residence; if successful, they would gain various privileges including the franchise, freedom to stay in Hong Kong and switch employers without a work visa, and eligibility for public housing.[4]
Fateh Muhammad v. Commissioner of Registration and Registration of Persons Tribunal was a 2001 case in the Court of Final Appeal, Hong Kong by a Pakistani migrant seeking the right of abode in Hong Kong. The case concerned provisions of the Immigration Ordinance requiring that a non-Chinese national's seven years of "ordinary residence" qualifying him to apply for permanent residence immediately precede his application. The unanimous opinion, written by Justice Kemal Bokhary (himself of Pakistani background), ruled that those provisions were not inconsistent with the Hong Kong Basic Law. The ruling in the case temporarily disqualified the appellant from applying for permanent residency, though he was expected to qualify again a few years later.
Elsie Leung also called on the government to seek an interpretation as soon as possible; based her knowledge of the Court of Final Appeal's reading of the Basic Law in prior cases going back to Director of Immigration v. Chong Fung Yuen in 2001, she did not expect that the government would be able to win its case in that venue. She further accused both the CFI and the CFA of ignoring the legislative intent of the Basic Law's drafters.[60] On this point, University of Hong Kong law professor Albert Chen, also a member of the Basic Law Committee, noted that Lam had very little flexibility in how he could rule on Vallejos precisely due to CFA precedents in the Chong Fung Yuen case and other early right of abode cases. He stated that the CFA's reluctance to take into account extrinsic materials in determining the intent of Article 24 stemmed largely from the fact that the extrinsic materials available to the CFA regarding the intent of Article 24 were published after the Basic Law itself. As a solution, he suggested that, if Beijing made public the minutes from the negotiations leading up to the 1984 Sino-British Joint Declaration, which was the basis for the drafting of the Basic Law, it might persuade the CFA to re-examine its interpretation of Article 24; the Joint Declaration, being a treaty, was subject to principles of international law, under which signatories to a treaty had the right to issue explanations of their positions.[61]
Vallejos and Daniel Domingo appealed their cases to the Court of Final Appeal, and were respectively assigned the case numbers FACV 19 and 20/2012. They would be represented before the CFA by Michael Fordham; David Pannick continued to represent the Government.[38] Chief Justice Geoffrey Ma rejected a further application for joinder by eight-year-old Liang Wing-ki, the Hong Kong-born daughter of mainland parents, whose next friend, mother Li Yinxian, filed suit on her behalf. Philip Dykes, for the applicant, argued that because Vallejos and Domingo's case would touch on issues of interpretation of the Basic Law under Article 158, Liang's interests would also be affected. In rejecting Liang's application, Ma stated: "We feel that the points you seem to argue are adequately covered and will be adequately covered".[39] Liang and other Hong Kong-born children like her were ruled to be entitled to the right of abode in Hong Kong in the 2001 case Director of Immigration v. Chong Fung Yuen.[40]
Comilang v. Commissioner of Registration was a 2011–2013 case against the Hong Kong Immigration Department by a former foreign domestic helper (Milagros Tecson Comilang) who is the sole custodial parent of a child (Zahrah Noor Ahmed) who has permanent residence status in Hong Kong. Comilang sought to challenge her own removal from Hong Kong on, "inter alia", the grounds that it would effectively force Ahmed to leave Hong Kong and thus deprive her of all of the benefits she should enjoy as a Hong Kong permanent resident. The ruling against the applicants in the Court of First Instance had wider legal significance, as it established that neither the International Covenant on Economic, Social and Cultural Rights nor the Convention on the Rights of the Child are incorporated in Hong Kong law.
In the event of a recusal or absence, a judge of the Appellate or Superior Court may be called to sit with the Supreme Court. One of the most recent instances of a lower court judge being called to "pinch-hit" was Judge Thomas Bishop of the Appellate Court in "Bysiewicz v. Dinardo".Then-Appellate Court Judge Lubbie Harper (who later served as a Justice of the Supreme Court) also sat with the Supreme Court in the landmark case of "Kerrigan v. Commissioner of Public Health". Judge Francis X. Hennessy also frequently served by designation on the Court.
The Family Court awarded Comilang custody of her daughter; however, the Immigration Department ordered Comilang to depart from Hong Kong. In 2007, Comilang requested leave to seek judicial review against the Immigration Department's order, but Judge Michael Hartmann of the Court of First Instance denied leave. Comilang later applied to the Commissioner of Registration for issuance of an identity card, as well as for permission from the Director of Immigration to extend her stay in Hong Kong, but was refused both times. She appealed to the Registration of Persons Tribunal, which ruled against her in June 2010.
In October 2011, the government filed an appeal from Lam's CFI judgment in the Court of Appeal, and was assigned the case number CACV 204/2011. The government's submission stated that Lam erred in finding that foreign domestic helpers' residence in Hong Kong could not be regarded as "out of the ordinary", in finding that the government's right to apply immigration control under Basic Law Article 154 could not be applied to Vallejos, and in failing to consider extrinsic materials from both prior to and subsequent to the publication of the Basic Law in 1990.[26][27] High Court Chief Judge Andrew Cheung and High Court vice-presidents Robert Tang and Frank Stock heard the government's appeal on 21–23 February 2012.[28] David Pannick continued to represent the government. In the first day of the hearing, Pannick argued that "there is no undermining of the rule of law if the legislature enjoys a certain margin of discretion".[29][30] Pannick also pointed to the previous British administration's treatment of Vietnamese refugees in Hong Kong in the 1980s as a precedent.[31] He further brought up examples from UK law, such as the fact that time spent there on a student visa was not regarded as "ordinary residence" and did not count towards the time required to obtain indefinite leave to remain.[32]