Instruct: Given a question, retrieve passages that can help answer the question.
Query: Who won 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.
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]
Vallejos herself was again unable to attend court.[33] Her counsel Gladys Li responded to Pannick's arguments by stating that Vietnamese refugees were not given identity cards and had to live in government-specified refugee centres; she thus argued that Vietnamese refugees did not fall within the definition of "ordinarily resident".[31] She also argued that the case of Vietnamese refugees was of no value as a precedent, since unlike before 1997 when the colonial government was free to make any immigration laws without limitation, the Hong Kong government today is bound by the Basic Law.[34] Li contrasted the treatment of Vietnamese refugees with that of FDHs: while FDHs' work contracts limited their place of residence, they were issued with identity cards, could have ordinary social lives outside of work. She described their position as comparable to foreign civil servants.[35] She also argued that the standard FDH contract's requirement that an FDH return to his or her country of origin every two years did not affect Vallejos' ordinary residence in Hong Kong, because she was offered a renewal of contract prior to departure each time, and her departure from Hong Kong was little different than any other category of employee required by his or her employer to take a compulsory leave. However, Justice Stock did not seem convinced by this argument, stating that Vallejos' absence from Hong Kong was "enforced", while Justice Tang pointed out that Vallejos could not return to Hong Kong as she wished during such absences, further bringing into doubt the idea that she could be considered "ordinarily resident" during such absences.[34]
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.
The hearing concluded on the 23rd as scheduled.[35][36]
Simon Li had five sons and one daughter. His second son Joseph Li died suddenly in Britain in 1995. His only daughter Gladys Li was the ex-chairwoman of the Hong Kong Bar Association and member of the Civic Party. She also represented the domestic helpers in the "Vallejos v. Commissioner of Registration".
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]
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]
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]
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]
More recently Pannick acted for AF, a man subject to a control order, establishing that the Home Secretary had a duty to inform him of the essence of the case against him. He represented the Crown in the Supreme Court in establishing in 2010 that MPs accused of dishonestly claiming expenses were not entitled to the benefit of parliamentary privilege. In January 2011, he represented Max Mosley before the European Court of Human Rights in his claim that the right to privacy obliged the United Kingdom to impose duties on newspapers to give prior notice of a publication invading privacy so the subject could seek an injunction. He appeared for a school (JFS) in the first hearing before the new Supreme Court on 2 October 2009. In 2011 and 2012, Pannick also represented the Hong Kong government in "Vallejos v. Commissioner of Registration", a case in which a foreign domestic helper sought judicial review to determine whether it was constitutional for the government to deny her the right of abode in the territory.
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]
Vallejos and Domingo v. Commissioner of Registration was a court case against the government of Hong Kong by two foreign domestic helpers (FDHs) seeking permanent residence and the right of abode in Hong Kong. Because of its subject matter it was commonly referred to in the media as the FDHs' right of abode case (外傭居港權案). Evangeline Vallejos and Daniel Domingo were two of five applicants who in various groups filed three right of abode lawsuits in 2010; the ruling in Vallejos' case was expected to be a precedent for the other two.
The week after the judgment was announced, the DAB organised another march from Chater House in Central to the Tamar site in Admiralty on 2 October, while Caring Hong Kong Power planned a march for 9 October.[65] According to separate Sing Tao Daily reports, 1,000 people attended the DAB's march, while 2,000 attended CHKP's.[66][67] Marches and rallies continued to the end of the month. On 23 October 200 domestic helpers organised a candlelight vigil at Statue Square in support of the case. The following day, 1,500 people joined a Hong Kong Federation of Trade Unions march from Wan Chai to government headquarters in opposition to residence rights for domestic helpers.[68]
The "Merchants' Loan" argument has been litigated by tax protesters several times, and the courts have uniformly rejected the argument that income consists only of corporate profits. See, for example: "Cameron v. Internal Revenue Serv.", "Stoewer v. Commissioner", "Reinhart v. United States", "Fink v. Commissioner"; "Flathers v. Commissioner"; "Schroeder v. Commissioner"; "Sherwood v. Commissioner"; "Ho v. Commissioner"; and "Zook v. Commissioner". Tax protesters — who have lost every case using "Merchants' Loan" for the theory that only "corporate profits" could be taxable — are citing a case where the U.S. Supreme Court ruled that the income of a non-corporate taxpayer is taxable. Neither the United States Supreme Court nor any other federal court has ever ruled that under the Internal Revenue Code the term "income" means only the income of a corporation for federal income tax purposes.
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.
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]
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]
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.
Justice Lam, knowing that whatever decision he made would be controversial, took time to emphasise during the court proceedings that his job was to rule on the content of the law, not to take into account political or social factors, which would be the job of the legislature.[5] Migrants from the Philippines and Indonesia called on their respective governments to discuss the situation with the Hong Kong government and find a way to allay the Hong Kong public's concerns over the ruling.[18]
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]
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]
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]
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]