Position paper on the Immigration (Amendment) Bill 2000
The
Law Society supports the enactment of legislation to provide
right-of-abode claimants with a cheap and simple system to
establish parentage by DNA evidence where there is doubt on
the documentary evidence.
However, such legislation must contain appropriate
provisions to safeguard rights of privacy and to prevent abuse
of power.
Under article 24(3) of the Basic Law children born outside Hong
Kong with at least one parent who is, by the time of birth,
a permanent resident, enjoy the right of abode in Hong Kong.
The majority of such children are, or
are deemed by law to be, resident in the Mainland of China.
They are required by Hong Kong law to
obtain Certificates of Entitlement to be affixed to one-way
exit permits before they may exercise the right of abode.
(There is on-going litigation by some right-of-abode
claimants who assert that they are unaffected by the Interpretation
issued by the NPCSC on 26 June 1999, and the comments herein
may not apply to them and others in similar circumstances
depending on the final outcome of that litigation, which at
the present state of play is known as Civil Appeals 415, 416 and 417 of 2000).
In considering an
application for a Certificate of Entitlement the Director
of Immigration has to decide whether, as a matter of fact,
a person claiming right-of-abode under article 24(3) of the
Basic Law is indeed the child of a Hong Kong permanent resident.
In most cases the parentage of the claimant will be
demonstrated by documentary evidence, such as a birth certificate,
stating the names of the parents.
In the absence of any justifiable reason
to question the provenance or authenticity of such documents,
the documentary evidence should be conclusive.
However there will
be cases where the documentary evidence is inconclusive.
Many persons born on the Mainland do not
have proper birth certificates.
Some among them, or their HK permanent resident parent,
may have changed their names or other particulars of their
identity. In such cases DNA evidence is a useful tool to establish
parentage.
Under the present
law the onus of proof of any claim to right-of-abode is on
the claimant: see section 64 of the Immigration Ordinance
(Cap 115). There have already been a number of instances of right-of-abode
claimants seeking to discharge this onus with DNA evidence
obtained privately. They have faced problems in doing so.
First, the chain of evidence may be disputed – it is
open to the Director to question whether the blood samples
on which the DNA tests are done truly came from the claimant
and the HKPR parent.
Secondly, such tests can only be obtained privately
at high cost – as much as HK$10,000.
There could also be cases where negative DNA test results
suggest infidelity on the part of one of the claimant’s parents,
resulting in disruption of family life.
It is right for
the Government to seek to address these problems by establishing
a well-regulated system for obtaining DNA evidence to avoid
dispute as to the chain of evidence.
The system to be set up should prescribe fees no higher
than the ordinary person can afford.
Economies of scale should be able to keep the cost low.
Privacy must be respected so as to avoid disruption of family life
amongst persons who had thought themselves to be blood relatives,
but are found not to be.
It is noted that
the amending bill would empower the Director to draw adverse
inferences from a failure to undergo DNA testing (subsection
(8) of the proposed amended section 2AB of the Ordinance).
The Law Society has reservations about this proposed
provision. The existing law already puts the onus
on the claimant to establish his or her right-of-abode.
That is sufficient to enable the Director,
as trier-of-fact, to reject unproved claims to right-of-abode.
There should be no need to empower him
to draw adverse inferences not least because such a power
might prevent the court, in exercising its supervisory jurisdiction
by way of judicial review, to quash the Director’s decision
of fact on grounds of Wednesbury unreasonableness.
Further it is noted
that subsection (12) of the proposed amended section 2AB would
declare that notice from the Government as to (a) the manner
of DNA testing and (b) the cost thereof, is not subsidiary
legislation. Such a provision already exists with respect to the manner
in which Certificates of Entitlement are to be applied for.
Any such provision has the effect of ousting
the Legislative Council’s scrutiny under section 34 of the
Interpretation and General Clauses Ordinance (Cap 1) and is
objectionable on that ground.
In the circumstances
the Law Society supports the amending bill provided that:
(a) The Director of
Immigration must come to a reasonable
conclusion that the documentary evidence is insufficient
to prove parentage before requiring DNA testing;
(b) There are adequate
provisions to protect the privacy of persons tested and their
family or putative family members;
(c) The fees or costs
to be prescribed are reasonably affordable to the ordinary
person;
(d) Subsection (8) of
the proposed amending Ordinance (‘adverse inferences')? should
be deleted;
(e) Subsection (12)
of the proposed amending Ordinance (‘not subsidiary legislation’)
should also be deleted.
The Law Society of Hong Kong
14 November 2000
43882
