Rankothpedi Durayalage Kamalawathi v. The Director of Immigration

HCAL 425/2017

[2018] HKCFI 1579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 425 OF 2017

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Before:  Hon Chow J in Chambers

Date of Hearing:  3 July 2018

Date of Decision:  11 July 2018

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D E C I S I O N

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INTRODUCTION

1.This is an application by the Respondent seeking a stay of the present application for judicial review until the final determination of the appeal in Lubiano Nancy Almorin v The Director of Immigration, CACV 112 of 2018 (“the Appeal”) by the Court of Appeal.

BASIC FACTS

2.The Applicant is a foreign domestic helper (“FDH”).  On 18 July 2017, she made an application for leave to apply for judicial review of the “Live-In Requirement”, a policy applied by the Director of Immigration on all FDHs admitted to work in Hong Kong as such.

3.It can be seen from the Form 86 filed by the Applicant that her challenge to the Live-In Requirement is a systemic challenge.  Four grounds of judicial review have been raised by her, as set out in paragraph 2 of the Form 86, namely:-

Ground 1: The Director in imposing the Live-In Requirement as a condition of stay is acting ultra vires of s11(2)(b) of the Immigration Ordinance, Cap 115, alternatively, the Live-In Requirement is not a valid immigration condition of stay as it is not included on the face of the visa stamped in the Applicant’s passport.

Ground 2: The Live-In Requirement in heightening the risks of breach of fundamental human / labour / economic rights, is unconstitutional of:

(a)  the prohibition against servitude in HKBOR Art 4(2) and the customary international rule against forced labour; and

(b)  the rights secured under HKBL Art 39, namely, the right to adequate rest and holidays in ICESCR Arts 7(b) and (d) as applied to Hong Kong through the Employment Ordinance, Cap 57.

Ground 3: The Live-In Requirement is discriminatory of the protected characteristic of the Applicant as a “migrant worker”.

Ground 4: The Live-In Requirement is reviewable at common law on the basis of anxious scrutiny on the grounds that the mandatory aspect of the Live-In Requirement without any exception:

(a)  amounts to an unlawful fetter of discretion; or

(b)  is internally inconsistent or self-contradictory to the Director’s own policy of requiring employers to provide suitable accommodation with reasonable privacy, having regard to the Hong Kong SAR’s international obligations contained in ICESCR Art 11(b) and MEC 1949 Art 6(1)(a)(iii) to provide adequate housing and accommodation for migrant workers.

4.At the time when the Applicant filed her Form 86, there was an ongoing judicial review of the Live-In Requirement brought by another FDH raising largely the same grounds, namely, Lubiano Nancy Almorin v The Director of Immigration, HCAL 210 of 2016 (“the First JR”), which had been fixed to be heard on 3 and 4 October 2018.

5.In her Form 86, the Applicant sought a direction that the present application be heard together with the First JR, or one after the other.  This court, however, declined to give such direction because:-

(1)  only 2 days were reserved for the hearing of the First JR and it was considered that there would probably not be enough time to also deal with the present application at the hearing; and

(2)  the hearing dates of 3 and 4 October 2017 for the First JR were fixed after consultation with counsel’s diaries involving adjustment to the court’s original diary, and the court was not minded to vacate those hearing dates.

Accordingly, the court directed that the present application should follow the usual timetable and procedures.

6.On 19 July 2017, the court granted the Applicant leave to apply for judicial review.

7.On 30 August 2017, the court made a consent order that the present application be stayed pending the outcome of the First JR.

8.On 14 February 2018, the court handed down its judgment (“the First JR Judgment”) in the First JR, dismissing the challenge to the Live-In Requirement in that case.

9.On 12 March 2018, the Department of Justice wrote to the Applicant’s solicitors, Daly, Ho & Associates, inviting the Applicant to agree to a stay of the present application pending the final determination of the appeal (if one should be lodged) against the First JR Judgment.

10.In the absence of any response from the Applicant, the Respondent took out a summons on 20 March 2018 seeking, inter alia, an order that “[t]he proceedings of the present case be stayed until 25 April 2018[1] if no appeal is lodged against the judgment in the case of HCAL 210/2016, or, if such appeal is lodged, until final determination of the said appeal, whichever is the later”.

11.On 25 April 2018, the applicant in the First JR filed a notice of appeal against the First JR Judgment.  If can be seen from the notice of appeal in CACV 112 of 2018 (ie the Appeal) that Ground 2 in this application will be ventilated before the Court of Appeal.  I have been informed by the Respondent that no date has yet been fixed for the hearing of the Appeal.

DISCUSSION

12.The question of whether the proceedings herein ought to be stayed pending the determination of the Appeal is a case management decision.  In 厦門新景地集團有限公司formerly known as厦門市鑫新景地房地產有限公司 v Eton Properties Limited and Others, HCCL 13/2011 (30 April 2018) concerning an application for stay of proceedings pending an application for leave to appeal to the Court of Final Appeal (and if leave to appeal was granted, until the determination of the appeal), Mimmie Chan J stated, at paragraph 27 of her decision, that the Court of First Instance “has the general and wide power under s16(3) [of the High Court Ordinance] to stay the proceedings before it, ‘where it thinks it fit so to do’, and that this is essentially a matter of sensible case management, to be decided with the objectives in mind of what is fair and just, as well as the other matters set out in Order 1A RHC as being the underlying objectives of the RHC (including the powers of management under Order 1B)”.

13.At paragraph 28 of her decision, Mimmie Chan J referred to an earlier decision of Deputy High Court Judge Lisa Wong SC (as she then was) in Eastman Chemical Ltd v Heyro Chemical Ltd [2012] 2 HKLRD 135, and considered that the court should take into account the following matters when deciding whether to impose a stay of proceedings: what would serve the ends of justice as between the parties and the administration of justice generally, whether a stay will cause injustice to the plaintiff, whether continuing the proceedings would be unjust, and that a plaintiff commencing proceedings as of right should not be deprived of the right to continue those proceedings in the absence of very good reasons.

14.In AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921 concerning an application for a stay of judicial review proceedings (arising out of an asylum claim as well as a claim to remain in the UK on human rights grounds) pending an appeal to the Supreme Court in a related action, Jackson LJ, giving the leading judgment of the English Court of Appeal, stated as follows:-

[25] In relation to stays of proceedings, as opposed to stays of enforcement, the judge is making a case management decision. Such decisions will rarely be challenged and even more rarely be reversed on appeal.

[26] The judge set out the principles governing the grant of a stay at paragraphs 27-28 of the judgment below as follows:

“27. A stay on proceedings may be associated with the grant of interim relief, but it is essentially different. In determining whether proceedings should be stayed, the concerns of the court itself have to be taken into the balance. Decisions as to listing, and decisions as to which cases are to be heard at any particular time are matters for the court itself and no party to a claim can demand that it be heard before or after any other claim. The court will want to deal with claims before it as expeditiously as is consistent with justice. But, on the other hand, it is unlikely to want to waste time and other valuable resources on an exercise that may well be pointless if conducted too soon. If, therefore, the court is shown that there will be, or there is likely to be, some event in the foreseeable future that may have an impact on the way a claim is decided, it may decide to stay proceedings in the claim until after that event. It may be more inclined to grant a stay if there is agreement between the parties. It may not need to grant a stay if the pattern of work shows that the matter will not come on for trial before the event in question. The starting point must, however, be that a claimant seeks expeditious determination of his claim and that delay will be ordered only if good reason is shown.

…”

[27] I agree with what is set out in those paragraphs …

[32] In my view the power to stay immigration cases pending a future appellate decision in other litigation is a power which must be exercised cautiously and only when, in the interests of justice, it is necessary to do so. It may be necessary to grant a stay if the impending appellate decision is likely to have a critical impact on the current litigation. If courts or tribunals exercise their power to stay cases too freely, the immigration system (which is already overloaded with work) will become even more clogged up.

15.It is clear from the above authority that a stay of proceedings in an action may be granted if the outcome of a pending appeal in another action has, or is likely to have, a critical impact on the action even if it cannot be shown that the outcome of that appeal would be decisive or determinative of the action.  This having been said, the power to stay must be exercised cautiously.  Ultimately, the court has to perform a balancing exercise to further the ends of justice as between the parties to the action, as well as the due administration of justice generally.

16.In the present case, I consider that a stay of the proceedings herein pending the final determination of the Appeal should be granted, for the following reasons.

17.First, although four grounds of judicial review have been raised by the Applicant in her Form 86, it is clear, in my view, that the most substantial ground lies in the constitutional challenge to the Live-In Requirement based on the alleged heightened risks of breach of fundamental human / labour / economic rights, ie Ground 2.  This ground will be determined by the Court of Appeal in the Appeal, and such determination will be binding on the Court of First Instance hearing the present application for judicial review.  In other words, the determination of the Appeal will have a critical impact on the present application.

18.Second, there is undoubtedly a very high degree of overlapping of issues in the present application with those in the First JR.  This was plainly recognized by the Applicant (i) when she applied for her case to be heard together with the First JR, or one after the other, in the Form 86, and (ii) when she consented to her application being stayed pending the outcome of the First JR.  I pause to add that the Applicant’s application for her case to be heard together with the First JR, or one after the other, was not acceded to by the court not because it was considered that the two applications did not raise the same or materially the same issues, but because of the case management considerations mentioned in paragraph 5 above.

19.Of the four grounds of judicial review which have been raised by the Applicant in her Form 86, Grounds 1, 2, 3 and 4(1) were considered and rejected by the court in the First JR Judgment.  Although Ground 4(2) was not raised in the First JR, it is apparently based on the premise that the Live-In Requirement is “without any exception”.  As pointed out in paragraph 110 of the First JR Judgment, that is a false premise.  In the circumstances, subject to the outcome the Appeal, the present application cannot be said to have strong merits or a good prospect of success.

20.In resisting the stay application, Mr Deng refers to the fact that the Applicant is a Sri Lankan, which is a minority nationality in the population of FDHs in Hong Kong, and it is said that she has little, or no, community support in Hong Kong unlike other FDHs coming from places such as the Philippines and Indonesia which provide the majority of the FDHs here.  Mr Deng further argues that different considerations apply, or may apply, to those in the Applicant’s position.  However, it is clear from the Applicant’s Form 86 that she is mounting a systemic challenge to the Live-In Requirement.  As accepted by Mr Deng, there is nothing in the Form 86 to suggest that the answers to the various grounds of challenge to the Live-In Requirement would turn on the fact that the Applicant belongs to a minority group of FDHs in Hong Kong.  Although Mr Deng also mentions the possibility of an amendment to the Form 86, there is no application to amend before the court. In these circumstances, the stay application should be considered on the basis of the current Form 86.

21.Third, in view of the above assessment regarding the merits of the present application, I do not consider that the Applicant will suffer any substantial prejudice arising from a temporary stay of the proceedings herein pending the Court of Appeal’s determination of the Appeal. The Applicant’s best hope in the present application, it seems to me, is a favourable outcome of the Appeal upholding the constitutional challenge to the Live-In Requirement based on the alleged heightened risks of breach of fundamental human / labour / economic rights.

22.Fourth, both parties are, in the present case, litigating on public funds.  If no stay of proceedings is granted, time and resources will have to be spent, unnecessarily, by the parties on arguing issues under Ground 2 which will be authoritatively determined by the Court of Appeal in the Appeal.  Furthermore, proceeding with a hearing of the present application will mean that other litigants will have to wait longer for their cases to be heard and resolved.  This will undermine the objectives of the CJR, including those of promoting procedural economy and ensuring the fair distribution of the court’s resources.

DISPOSITION

23.For the foregoing reasons, I make an order staying the proceedings herein pending the final determination of the Appeal by the Court of Appeal.  I further make an order in terms of paragraphs 2 to 5 of the Respondent’s summons dated 20 March 2018.  I do not consider the conduct of the Applicant to be such as would justify an order of indemnity costs being made against her.

24.Lastly, it remains for me to thank counsel for their assistance rendered to the court.

Mr Earl Deng, instructed by Daly, Ho & Associates, assigned by Director of Legal Aid, for the Applicant

Ms Bonnie Y K Cheng, instructed by Department of Justice, for the Respondent