Court allows FDH’s dependent visa bid

THE Court of Appeal has allowed a Filipina domestic worker to pursue her permanent residency bid through a dependent status.
Last May 2, the court ruled that Milagros Comilang may pursue her appeal as dependent of her seven-year-old daughter, a permanent resident by virtue of her birth here and her father’s permanent residency status.
In a separate judicial review, the Court of Appeal heard the permanent residency bid of a 16-year-old son of a Filipino domestic worker.
These cases are tied to a recent Court of Final Appeal decision rejecting foreign domestic helpers’ (FDHs) bid for right of abode. In March, the highest court ruled that FDHs are not ordinary residents here, effectively striking down the cases of Evangeline Vallejos and Daniel Domingo.
Daughter’s dependent
The Court of Appeal remitted Comilang’s case to the Immigration Director “for him to make a fresh decision on it.”
Comilang’s last FDH contract ended in July 13, 2005 and she was permitted to remain on a visitor status until Oct. 10, 2005.
She married a “non-Chinese national and a Hong Kong permanent resident” in October 7, 2005 and applied for dependent status.
The marriage broke down in 2007, and the father withdrew sponsorship of Comilang as his dependent. She maintained her change of status application until the Immigration Director refused her application in September 2007.
Comilang applied for several extensions of stay to pursue Family Court proceedings against the father. In June 2, 2009, the Family Court granted her “custody, care and control of her daughter with reasonable access to the father.”
In June 9, 2009, Comilang wrote to the Immigration Director to allow her to stay here to take care of her daughter.
The Immigration Department treated this as a request for an extension of stay and application to remain in Hong Kong. Supporting documents such as residency proof like tenancy agreement and rental receipts, financial proof of sponsor such as bank statement, and letter stating reasons to remain in Hong Kong and difficulties to return to the Philippines with her daughter were requested. Unable to provide these, the request was refused.
In April 2010, Comilang appealed the Immigration Director’s decision to the Registration of Persons Tribunal. The appeal was dismissed in June 2010; in April 2011, she pursued judicial review.
Last April, the Court of Appeal heard her case. Comilang’s lawyer Gladys Li argued that the Immigration Director “erred in failing to consider” the child’s right of abode when he refused the mother’s applications for extensions of stay.
Lawful visitor
Last May 7, the Court of Appeal heard the case of Filipina domestic worker Josephine Gutierrez’s teenage son.
Li explained the boy was born here and had never lived anywhere else. “He was here as a visitor but nevertheless never been here unlawfully. He has never been here beyond his limit of stay,” she said.
Li said the Tribunal failed to look at the son’s ordinary residence status and only focused on the mother’s employment status as FDH.
Li added the son has been living with his mother at the employer’s residence and that Gutierrez made active steps to assure her son’s living arrangement. The son speaks fluent Putonghua and Cantonese.
“These are evidence that the child should be able to function in Hong Kong. He did not learn Tagalog. The child has no connection to the Philippines, although he carries Philippine passport and goes with his mother there because he had no choice,” Li said.
Government counsel David Pannick stressed the evidence were not concrete steps to establish permanent residence. “At best, it goes to the intention of the mother for the child,” Pannick said.
“It is incumbent upon the parent to satisfy the tribunal that she acted in a way that she is able to live in Hong Kong,” he added.
The Court of Appeal reserved its judgment on the case.