Fernandez Yvette Dingle and Another v. Commissioner of Labour and Another

HCAL 3215/2019

[2021] HKCFI 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3215 OF 2019

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J U D G M E N T

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SUMMARY

1.In this application for judicial review, the 1^st Applicant (a foreign domestic helper) and the 2^nd Applicant (the 1^st Applicant’s daughter) seek to challenge the Commissioner for Labour (“the Commissioner”) and the Director of Immigration (“the Director”)’s failure or refusal to grant a “waiver” of the live-in requirement (“the Live-In Requirement”) under Clause 3 of the 1^st Applicant’s Standard Employment Contract (“SEC”) during the period of the 1^st Applicant’s maternity leave.  Clause 3 of the SEC states as follows:

“The Helper shall work and reside in the Employer’s residence at [a specified address in Hong Kong].”

2.The present application is based on a fundamental misunderstanding of the Live-In Requirement, in that it is premised on the incorrect notion that the Commissioner and/or the Director have power to grant a waiver of the Live-In Requirement.  As confirmed by the Court of Appeal in the recent judgment in Lubiano Nancy Almorin v Director of Immigration [2020] 5 HKLRD 107, at §22, (i) as between an employer and a foreign domestic helper, the Live-In Requirement is a matter of “contract” between them, and (ii) as between the Director and a foreign domestic helper, the Live-In Requirement is a matter of “undertaking” given by the former to the latter in her visa application.  Although the Director has power not to enforce such undertaking, he has no power to waive the Live-In Requirement in so far as it operates as a contractual obligation on the foreign domestic helper vis-à-vis her employer.  On the other hand, while the Commissioner has power to consent to a variation of Clause 3 of the SEC embodying the Live-In Requirement, such consent cannot free the foreign domestic helper from the Live-in Requirement in the absence of the employer’s agreement to vary Clause 3 of the SEC.

3.By seeking to challenge the Director and/or Commissioner’s failure or refusal to grant a waiver of the Live-In Requirement, the 1^st Applicant must be proceeding on the assumption that she would otherwise by required to live or stay in the employer’s residence during the period of her maternity leave and that a waiver was needed to free her of such obligation.  It seems to me, however, that the true and pertinent questions relevant to the 1^st Applicant’s situation should be whether, upon the true construction of the SEC: (i) the requirement that a foreign domestic helper should reside in the employer’s residence under Clause 3 applies during the period of her maternity leave, and (ii) if yes, whether the obligation to “reside” in the employer’s residence means that the foreign domestic helper must live or stay in the employer’s residence during the period of the maternity leave.  In my view, the Applicants have failed to challenge the relevant decisions of the Director and/or Commissioner which would raise these construction issues for determination by the court.  Although this matter was pointed out to counsel for the Applicants at the hearing, there was no application to further amend the Form 86 to properly raise the construction issues for determination.  The court must therefore deal with the present application on the basis of the current Amended Form 86.  For the avoidance of doubt, the court’s dismissal of the present application should not be read as the court’s acceptance of the stance expressed on behalf of the Commissioner and Director that upon the true construction of the SEC, a foreign domestic helper would, in principle, be required to live or stay in the employer’s residence during the period of her maternity leave (or, for that matter, annual leave and statutory holidays).  A final determination of the construction issues must await an appropriate case coming before the court in which the issues are properly raised.

BASIC FACTS

4.For the purpose of disposing of the present application, the following brief summary of the facts should suffice.

5.The 1^st Applicant is a Filipino born in Hong Kong on 26 December 1993.  She left Hong Kong in 1994.  She does not enjoy the right of abode in Hong Kong.

6.On 27 May 2018, Ms Law Wai Yin (“Ms Law”) and the 1^st Applicant entered into the SEC, under which Ms Law agreed to employ the 1^st Applicant as a foreign domestic helper for a period of two years commencing on the date on which the 1^st Applicant arrived in Hong Kong.  The SEC contains, inter alia, the following provisions:

“3 The Helper shall work and reside in the Employer’s residence at [a specified address in Hong Kong].

5 (b) The Employer shall provide the Helper with suitable and furnished accommodation as per the attached Schedule of Accommodation and Domestic Duties …

6 The Helper shall be entitled to all rest days, statutory holidays, and paid annual leave as specified in the Employment Ordinance, Chapter 57.

15 Save for the following variations, any variation or addition to the terms of this contract (including the annexed Schedule of Accommodation and Domestic Duties) during its duration shall be void unless made with the prior consent of the Commissioner for Labour:

… [immaterial]”.

7.On 13 June 2018, the Immigration Department received (i) the 1^st Applicant’s “Visa/Extension of Stay Form for Domestic Helper from Abroad” and (ii) Ms Law’s “Application for Employment of Domestic Helper”.

(1)     The 1^st Applicant’s application form contained the following undertaking given by her to the HKSAR Government: “I will reside in the Employer’s residence as stated in Clause 3 of [the SEC]”.

(2)     Ms Law’s application form likewise contained the following undertaking given by her to the HKSAR Government: “The Helper will reside only in the residence as stated in Clause 3 of [the SEC]”.

8.On 13 July 2018, the 1^st Applicant’s application for employment visa was approved.

9.On 5 August 2018, the 1^st Applicant entered Hong Kong to work as a foreign domestic helper for Ms Law for a period of two years until 5 August 2020 pursuant to the SEC.  She commenced to live in her employer’s residence as specified in Clause 3 of the SEC.

10.In December 2018, the 1^st Applicant discovered that she was pregnant.  On 7 May 2019, the 1^st Applicant orally informed Ms Law of her pregnancy.  Ms Law commented that this was a disaster to her family and asked the 1^st Applicant what her plan was.  The 1^st Applicant told Ms Law that she intended to give birth in Hong Kong, start her maternity leave, bring her baby back to the Philippines prior to the expiry of the maternity leave, and then return to Hong Kong to continue to work under the SEC.  Ms Law did not respond to the 1^st Applicant’s plan.  She merely stated that the 1^st Applicant needed to continue to stay in the employer’s residence during the maternity leave but she and her husband (“Mr Chan”) would not allow the 1^st Applicant’s newborn baby to live in the employer’s residence.

11.On 9 May 2019, the 1^st Applicant obtained a “Maternity/Sick Leave Certificate” from Prince of Wales Hospital stating that her expected date of confinement was 4 July 2019.

12.On 16 May 2019, the 1^st Applicant asked Ms Law about her maternity leave dates.  Ms Law said that she would discuss this matter with her husband.  Ms Law also said to the 1^st Applicant that she could not leave the employer’s residence during her maternity leave because that would be against the law.

13.The 1^st Applicant made inquiries with the Immigration Department and the Labour Department on whether she was required to reside in the employer’s residence during her maternity leave as per the Live-in Requirement under Clause 3 of the SEC.

(1)     By an email dated 21 May 2019, the Immigration Department replied to the 1^st Applicant stating, inter alia, as follows:

“An FDH should work and reside in the employer’s residence in accordance with Clause 3 of the Standard Employment Contract (ID407). The employer is required to provide the FDH with free accommodation as per the standard specified in the ‘Schedule of Accommodation and Domestic Duties’ of the employment contract.

(Employers who have obtained the Director of Immigration’s approval before 1 April 2003 to let their FDHs live out can continue to do so, so long as they continue to employ FDHs without a break of more than 6 months)”.

(2) By an email dated 23 May 2019, the Labour Department replied to the 1^st Applicant stating, inter alia, as follows:

“Live-in requirement

Under Clause 3 of the SEC, the FDH shall, during the employment period in Hong Kong, work and reside in the employer’s residence specified in the contract.

The ‘live-in requirement’ is applicable throughout the FDH’s employment period, including the period when she is pregnant and takes leaves (including maternity leave) in Hong Kong.

Arrangement of new-born baby of the FDH

The EO and the SEC are silent on the arrangement of the new-born baby of the FDH and whether the FDH should take the maternity leave in her home country or in Hong Kong.  Employers and FDHs are advised to discuss the maternity leave and the new-born baby arrangement as soon as possible in order to reach an agreement on it.  Please be reminded that if the FDH choose to take her maternity leave in Hong Kong, she has to reside in employer’s residence as specified in the SEC.”

14.On 23 May 2019, the 1^st Applicant tendered to Ms Law (i) the “Maternity/Sick Leave Certificate” mentioned in §11 above, and (ii) a “Pregnancy Notice” in accordance with s 12(4) of the Employment Ordinance, Cap 57 (“the EO”).  Ms Law told the 1^st Applicant that she was not familiar with maternity leave and had informed the employment agent, Ms Vicky Yau (“Ms Yau”) about the 1^st Applicant’s situation.  Later, the 1^st Applicant called Ms Yau, who told the 1^st Applicant that she would report the 1^st Applicant to the authorities if she should stay out from the employer’s residence during her maternity leave.

15.On 14 June 2019, about 3 weeks before the expected date of confinement, the 1^st Applicant gave birth to the 2^nd Applicant.  On the same date, the 1^st Applicant informed Ms Law of the birth of the 2^nd Applicant.  Ms Law asked the 1^st Applicant when she would be back, and told the 1^st Applicant that she had to stay in the employer’s residence without the 2^nd Applicant while she was taking her maternity leave.  Given the 2^nd Applicant was born 3 weeks prematurely, the 1^st Applicant was advised to breastfeed the 2^nd Applicant every 3-4 hours to make sure that she would gain weight.  Also, there was no one else who could take care of the 2^nd Applicant in Hong Kong.  Thus, the 1^st Applicant wished to live with and care for the 2^nd Applicant in Hong Kong while waiting for the latter’s travel documents to be issued before she could bring the 2^nd Applicant back to the Philippines.  However, Ms Law was adamant that the 2^nd Applicant would not be allowed to stay in her home.

16.On 20 June 2019, the 1^st Applicant was discharged from hospital.  In view of Ms Law’s refusal to permit the 2^nd Applicant to stay in the employer’s residence, the 1^st Applicant decided to stay in premises offered by PathFinders together with the 2^nd Applicant.  On 21 June 2019, Ms Law sent an email to the Immigration Department making a complaint about the 1^st Applicant’s refusal to live or stay in the employer’s residence on 20 June 2019.

17.According to the 1^st Applicant, Ms Law and Mr Chan continued to request the 1^st Applicant to return to their home without the 2^nd Applicant, or to resign, and threatened to report the 1^st Applicant to the Police, the Immigration Department and the Labour Department if she did not comply with their demands. On the other hand, they offered to pay the 1^st Applicant her wages for the period of her maternity leave should the 1^st Applicant agree to resign.  The 1^st Applicant refused to do so.  Later, Ms Law and Mr Chan told the 1^st Applicant that they had reported the 1^st Applicant to the authorities, but would withdraw the complaints if she agreed to resign.  As a matter of fact, on 2 July 2019, Ms Law sent an email to the Immigration Department urging the department to strictly enforce the law against the 1^st Applicant and cancel the 1^st Applicant’s employment visa.

18.On 3 July 2019, the 1^st Applicant went to the Immigration Department to make an in-person request for a “waiver” of the Live-in Requirement during the period of her material leave[1].  According to the 1^st Applicant, she was instructed by an immigration officer “to send an e-mail to the Labour Department to inform them of [her] situation and to request for a no objection letter given the exceptional circumstances of [her] case”[2].

19.On 3 July 2019, the 1^st Applicant wrote to the Labour Department seeking a “no objection letter” (in her words, “to … allow me to live outside my employer’s home during my maternity leave in Hong Kong with my daughter by providing me with a no objection letter … I am requesting a no objection letter that will cover the period from June 14 2019 until the date that my daughter’s travel documents will be released”).

20.Further exchange of emails between the 1^st Applicant and the Labour Department followed, which it is not necessary to set out in this judgment.  Eventually, on 31 July 2019, the Labour Department replied substantively to the 1^st Applicant’s request stating, inter alia, the following -

“Based on the information you submitted, we understand that it is out of your own volition to stay out of the employer’s residence and that no consent has been given by your employer for you to live-out. Given that there is no agreement between the two contracting parties, we regret that your case could not be processed further at this stage.”

21.At a conciliation meeting arranged through the Labour Relations Division of the Labour Department on 16 August 2019, the 1^st Applicant’s SEC with Ms Law was terminated with effect from 22 August 2019, being the last day of the 1^st Applicant’s maternity leave.  The 1^st Applicant subsequently lodged a claim at the Labour Tribunal against Ms Law for unlawful and unreasonable termination of employment, as well as a complaint with the Equal Opportunities Commission against Ms Law for discrimination.  It is not necessary to refer to those matters further in this judgment.

22.On 16 March 2020, the 1^st and 2^nd Applicants departed Hong Kong.

APPLICATION FOR JUDICIAL REVIEW

23.On 28 October 2019, the Applicants made the present application for leave to apply for judicial review.  In the Form 86, the Applicants identified the following as being the “Judgment, order, decision or other proceeding in respect of which relief is sought”:

“1^st Respondent’s decision to refuse granting a waiver of the live-in requirement (‘the Live-in Requirement’) under the 1^st Applicant’s Standard Employment Contract (‘SEC’).

2^nd Respondent’s decision in not providing a waiver for enforcement of the Live-in Requirement under the 1^st Applicant’s SEC”.

24.As clarified and confirmed by Mr Kay Chan at the hearing on 28 January 2021, the decisions which the Applicants seek to challenge by way of judicial review in the present application are:

(1)     the oral instruction or advice given by the Immigration Department referred to in §18 above (“the Director’s Decision”); and

(2)     the decision embodied in the Labour Department’s email dated 31 July 2019 referred to in §20 above (“the Commissioner’s Decision”).

25.Four grounds of judicial review are raised in the Amended Form 86:

(1)     Ground 1 - The Applicants’ primary argument under this ground is that the application of Clause 3 of the SEC giving rise to the Live-In Requirement by the HKSAR Government is wrong.  As a matter of construction, “reside” is qualified by “work” and refers to the primary residence of a foreign domestic helper in Hong Kong when she is working.  The phrase “work and reside” in Clause 3 should not limit where a foreign domestic helper can stay on her leave days.  The Applicants’ secondary argument is that, if the limitation imposed by Clause 3 of the SEC includes a restriction on where a foreign domestic helper can stay when she is on leave, including but not limited to maternity leave, such restriction is in breach of the foreign domestic helper’s liberty of movement protected by Article 8 of the Hong Kong Bill of Rights (“BOR”)[3].

(2)     Ground 2 - The Commissioner and the Director failed to give independent consideration of the Applicants’ circumstances in the exercise of their discretion whether to grant a waiver of the Live-In Requirement[4].

(3)     Ground 3 - The HKSAR Government’s policy or “mode of consideration” leading to the decisions under challenge is in breach of, or has significantly increased the risk of a breach of the fundamental right to family life of the Applicants protected by BOR 14 and 19(1), and/or the 2^nd Applicant’s right as a child under BOR 20[5].

(4)     Ground 4 - The HKSAR Government breached the Applicants’ legitimate expectation that, when making administrative / executive decisions and policies, it would comply with obligations contained in international treaties applicable to the HKSAR, in particular Article 9 of the Convention on the Rights of the Child (“the CRC”), and Article 9(1) of the International Labour Organisation’s Maternity Protection Convention, 2000[6]. On behalf of the Applicants, Mr Kay Chan confirms that the Applicants would withdraw their reliance on the latter Convention (because they have since discovered that the 2000 Convention is not applicable to the HKSAR)[7].  He also states that the Applicants’ case under this ground is based on procedural legitimate expectation, instead of substantive legitimate expectation as suggested in the Amended Form 86[8].

THE PRESENT APPLICATION IS MISCONCEIVED

26.The true nature and legal effect of the Live-In Requirement was considered by the Court of Appeal in Lubiano, at §22:

“In terms of legal analysis, as between the employer and the FDH, the Live‑In Requirement is a matter of ‘contract’ between them. As between the FDH and the Director, the Live-In Requirement is a matter of ‘undertaking’ given by the former to the latter in her visa application. Similarly, the employer has to give an undertaking to the Director in the former’s application for entry visa for the FDH. These undertakings are part of the eligibility criteria for the exercise of the Director’s discretion to permit the employer to employ the FDH and to grant an FDH visa. The Live-In Requirement is not imposed by the Director on the FDH as a condition of stay. Notwithstanding this, since it is not possible to obtain approval from the Director for the necessary visa application without the undertakings it can hardly be disputed that the Live-in-Requirement is in substance a requirement imposed for immigration control in the exercise of the power of the Director under the Immigration Ordinance.”

27.The following points about the Live-In Requirement are relevant for the present purpose:

(1)     The Live-In Requirement is not imposed on a foreign domestic helper by the Director as a “condition of stay”.  Hence, a breach of the Live-In Requirement is not itself a criminal offence, in particular the offence of breach of condition of stay under s 41 of the Immigration Ordinance, Cap 115 (“the Ordinance”).  While it is an offence for a person to make a false statement or representation which he knows to be false or does not believe to be true in circumstances specified in s 42 of the Ordinance, a foreign domestic helper who gave an undertaking to the Director that she would reside in her employer’s residence in Hong Kong in her application for an employment visa but subsequently fails to do so would not be guilty of the offence under s 42 if, at the time of giving the undertaking, she genuinely intended to honour the undertaking.

(2)     A breach of the undertaking may lead to adverse immigration consequences for the foreign domestic helper in any future application for employment visa or application for extension of stay.  It is a matter of discretion for the Director, when considering such application, to decide what weight (if any) should be given to any breach of undertaking having regard to all relevant circumstances surrounding the breach.

(3)     By entering into the SEC, a foreign domestic helper binds herself, as a matter of contract, to her employer to work and reside in the employer’s residence during the period of her employment in Hong Kong (subject to arguments concerning the true scope of Clause 3).  This obligation is binding on the foreign domestic helper vis-à-vis the employer which neither the Director nor the Commissioner has power to vary or waive as a matter of law.

(4)     Under the SEC, the employer and the foreign domestic helper agree that Clause 3 may not be varied without the prior consent of the Commissioner (“… any variation … of this contract … shall be void unless made with the prior consent of the Commissioner for Labour”).  The Commissioner’s role in relation to a variation of the SEC is restricted to giving his prior consent to the variation.  However, any such consent as may be given by the Commissioner does not oblige either the employer or the foreign domestic helper to accept a variation of the SEC.  Either party is free to reject a variation proposed by the other party even if the Commissioner has given his consent to the proposed variation.

(5)     Finally, the Director has no role to play in any proposed variation of the SEC under the terms of the contract.  His consent is not required for any variation of the SEC.  This having been said, should a foreign domestic helper act in breach of the undertaking given to the Director that she will reside in the employer’s residence, the breach is not excused even if Clause 3 of the SEC has been varied with the agreement of the employer and the consent of the Commissioner.  In other words, the Director is still entitled to take such enforcement action as may lawfully be taken by him for the breach of undertaking.

28.In the present case, in so far as the challenge to the Director’s Decision is concerned, it is important to note that the Director was not asked by the 1^st Applicant to waive any enforcement action which might be taken by the Director consequent upon any breach, or proposed breach, of the undertaking concerning the Live-In Requirement.  Although in the Amended Form 86, the Applicants have described the relevant decision made by the Director as “not providing a waiver for enforcement of the Live-in Requirement under the 1^st Applicant’s SEC”, Mr Kay Chan has clarified and confirmed on behalf of the Applicants that the decision that was actually made by the Director, in response to the 1^st Applicant’s request for a waiver of the Live-in Requirement, was that referred to in §33 of the 1^st Applicant’s First Affidavit, namely, instructing or advising the 1^st Applicant to seek a “no objection letter” from the Commissioner (see §18 above).  Given the Commissioner’s prior consent was required before there could be any variation of the place of residence of the 1^st Applicant under Clause 3 of the SEC (assuming that a variation was, as a matter of law, required in the Applicant’s case), I fail to see how the Director can be criticized for directing or referring the 1^st Applicant to the Labour Department in the circumstances of the present case.  As earlier mentioned, the Director simply had no power to grant any waiver of the Live-In Requirement which would enable the 1^st Applicant to live out of the employer’s residence during the period of her maternity leave (assuming that she would otherwise be required by Clause 3 of the SEC to do so).

29.As a matter of fact, the Director did not refuse to grant a waiver of any enforcement action for any breach, or proposed breach, of the undertaking by the 1^st Applicant, for the simple reason that no such request was made by the 1^st Applicant.  I should add that where there has been a breach of the undertaking concerning the Live-In Requirement by a foreign domestic helper, under the Director’s prevailing policy, the breach is a matter that may be taken into account when considering any future application by the foreign domestic helper for employment visa or extension of stay.  The Director is entitled to take into account all relevant circumstances at the time of the application before deciding what (if any) weight should be given to any previous breach of undertaking.  I do not consider that the Director is under any legal duty to decide in advance whether enforcement of the breach of undertaking should be waived.

30.In so far as the challenge to the Commissioner’s Decision is concerned, there cannot be any doubt on the evidence that the 1^st Applicant’s employer would not allow the 1^st Applicant to stay out of the employer’s residence during her maternity leave, or agree to any variation of Clause 3 of the SEC to enable the 1^st Applicant to do so.  That being the position, it would be futile for the Commissioner to provide the “no objection letter” sought, or give his prior consent to a variation of Clause 3 of the SEC.  In my view, the Commissioner was entitled to adopt the practical approach that, given the parties could not reach agreement, the application for the no objection letter could not or would not be further processed.

31.In all, once the true legal nature and effect of the Live-In Requirement is understood, there would be no proper basis for the 1^st Applicant to seek a “waiver” of the Live-In Requirement from either the Director or Commissioner.  Neither was there any proper basis for the Director or Commissioner to grant a waiver of the Liver-In Requirement.  The application for leave to apply for judicial review is based on a false premise, and the intended application for judicial review has no realistic prospect of success. Having reached this conclusion, I shall briefly comment on the grounds of judicial review raised by the Applicants.

GROUND 1: CONSTRUCTION AND BOR 8

32.Under this ground, the Applicants raise two alternative arguments.  The primary argument concerns the true construction of Clause 3 of the SEC.  Mr Kay Chan argues that the word “reside” in Clause 3 is qualified by “work” and refers to the primary residence of a foreign domestic helper in Hong Kong.  Thus, although a foreign domestic helper is required to reside in the employer’s residence stated in the SEC when she is working, Clause 3 does not limit where the foreign domestic helper can stay when she is on leave (including maternity leave).

33.On the other hand, Mr Abraham Chan, SC (for the Director and Commissioner) argues, by reference to the natural meaning of the expression “shall work and reside” in Clause 3, the intent and purpose of that clause (namely, to protect the employment opportunities of the local workforce), other provisions of the SEC which he says constitute a package of terms by which the Government requires an employer to support a foreign domestic helper during the entire period of her employment and stay in Hong Kong (including the provision of food or food allowance, free medical treatment, suitable and furnished accommodation, and payment for the foreign domestic helper’s passage between her place of origin and Hong Kong), and other matters, that Clause 3 applies to the whole period of a foreign domestic helper’s contract in Hong Kong, including the time when she is on maternity leave.  Mr Abraham Chan also submits that whether a foreign domestic helper should be regarded as “residing” in her employer’s residence when she is temporarily absent depends on the circumstances, but has not offered any further exposition on the meaning of the word “reside” in the context of Clause 3 of the SEC.  When asked by the court whether a foreign domestic helper would be in breach of the Live-In Requirement if she were to take a short vacation outside Hong Kong (or indeed a local staycation away from her employer’s residence) during statutory holidays lasting for more than one day, or return to her home country during her annual leave, or go back to her home country to give birth during her maternity leave, he informs the court that the Government’s position is that the foreign domestic helper would likely be in breach of the Live-In Requirement in those scenarios, although the breach may be regarded as a technical one and may not be enforced by the Director who would look into the matter on a case-by-case basis.  Mr Abraham Chan also submits that the court should not enter into any expansive discussion of these issues but should take a disciplined approach and deal only with the actual application before it.

34.Since Mr Abraham Chan has not fully argued the meaning of the word “reside” in the context of Clause 3 of the SEC, and a determination of the true construction of Clause 3 is not essential for disposing of the present application for judicial review, I agree with him that the court should not attempt to rule on these questions definitively.  Whatever the court may say on these matters would be no more than obiter dicta which would only be of limited assistance in any future cases where the issues have to be squarely confronted with.  Nevertheless, I should make it clear that while I can see the force of his argument that the obligation to “work and reside” in the employer’s residence under Clause 3 of the SEC should apply to the whole period of a foreign domestic helper’s contract with the employer, it is far less clear that the foreign domestic helper should be regarded as no longer “residing” in the employer’s residence in the various situations postulated in §33 above, or during periods of temporary absence from the employer’s residence.  In Lubiano, the Court of Appeal referred to, without disapproval, a distinction drawn by counsel on behalf of the Director between “establishing a residence at some other place with some degree of permanence and spending overnight elsewhere during a holiday” (§113), and stated that it saw “no reason for disagreeing with Mr Yu on the effect of the Live-in Requirement in terms of the FDH not staying at the employer’s home during the rest day” and “a FDH is at liberty to stay away from the home of the employer during the 24-hour rest period” (§116).  Whether that view can be extended to the situation where a foreign domestic helper is entitled to a period of leave lasing for more than one day was not discussed by the Court of Appeal.  I would merely observe that whether a person “resides” in a place cannot be determined by reference to the number of hours in a day, or the particular hours of a day, that the person physically stays in that place.  It also seems to me that a person does not cease to reside in his regular residence merely by reason of a temporary absence from the residence.  When one construes Clause 3 of the SEC, in particular, the meaning of the word “reside”, one ought to take into account and give full effect to (i) Clause 6 thereof, which provides that a foreign domestic helper shall be entitled to all rest days, statutory holidays and paid annual leave as specified in the Employment Ordinance, and (ii) the general principle that the court should avoid a construction of a contract which would produce an unreasonable result.  It is also relevant that permitting a foreign domestic helper to stay out of her employer’s residence during her rest days, annual leave and maternity leave would not, it seems to me, undermine the basic justifications for the Live-In Requirement (see the judgment of the Court of Appeal in Lubiano, at §20, namely, protection of the local workforce, and Hong Kong’s economy and society generally).

35.In short, while I do not consider the present to be the right case to finally determine the true construction of Clause 3 of the SEC, there is, I believe, reasonable scope for debate on whether a foreign domestic helper is strictly required to live or stay in her employer’s residence during her statutory holidays lasting for more than one day, annual leave or maternity leave.

36.For the purpose of the present application, it would not help the 1^st Applicant even if the construction issue is resolved in her favour, because such finding would necessarily mean that there was no proper basis for any waiver of the Live-In Requirement to be sought from, or granted by, either the Director or Commissioner.

37.The Applicants’ secondary argument is that if the limitation imposed by Clause 3 of the SEC includes a restriction on where a foreign domestic helper can stay when she is on leave, including but not limited to maternity leave, such restriction is in breach of the foreign domestic helper’s liberty of movement protected by BOR 8.  Mr Kay Chan accepts that the imposition of the Live-In Requirement by the Director on a foreign domestic helper involves an application of the Immigration Ordinance governing “entry into” or “stay in” Hong Kong[9], but argues that the Immigration Reservation to the ICCPR (“the Immigration Reservation”) / s 11 of the Hong Kong Bill of Rights Ordinance, Cap 388 (“Section 11”) had no application to the 1^st Applicant because she had, at the material time, an effective employment visa granted to her by the Director and thus the status of a “non-permanent resident” of the HKSAR which entitled her to the freedom of movement protected by Article 31 of the Basic Law (see Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480).  This argument must be rejected as being contrary to what the Court of Appeal said in Lubiano, at §56, that a foreign domestic helper is “a person not having the right to enter and remain in Hong Kong” within the meaning of Section 11.  In this regard, it should be noted that under s 7(1) of the Ordinance, a person may not land in Hong Kong without the permission of an immigration officer or immigration assistant unless he enjoys the right of abode in Hong Kong, or he has the right to land in Hong Kong by virtue of section 2AAA, or he may land in Hong Kong without such permission by virtue of ss 9(1) or 10(1) of that Ordinance.  Further, s 11(2)(a) of the Ordinance provides that where permission is given to a person to land or remain in Hong Kong, an immigration officer or immigration assistant may impose a limit of stay.  The Applicant was not a person who was entitled to land in Hong Kong without the permission of an immigration officer or immigration assistant under s 7(1) of the Immigration Ordinance, and was subject to a limit of stay imposed under s 11(2)(a) of the Ordinance when permission was given to her to land in Hong Kong.  In my view, she was a person “not having the right to enter and remain in Hong Kong” within the meaning of Section 11 and the Immigration Reservation.  Thus, even if the Director and the Commissioner had, contrary to my views, the power to waive the Live-In Requirement and made decisions refusing to waive the Live-In Requirement on the 1^st Applicant during the period of her maternity leave, she would not be entitled to rely BOR 8 to challenge the decisions of the Director and Commissioner, such reliance being excluded by Section 11 or the Immigration Reservation (see Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59, at §§38 and 53-54).

GROUND 2: FAILURE TO GIVE INDEPENDENT CONSIDERATION OF THE APPLICANTS’ CIRCUMSTANCES

38.Under this ground, the Applicants argue that the Director or Commissioner failed to give independent consideration of the Applicants’ circumstances in the exercise of their discretion whether to grant a waiver of the Live-In Requirement to the 1^st Applicant.  This ground cannot get off the ground since neither the Director nor the Commissioner had any power to waive the Live-In Requirement.  In any event, for the reasons given in §§28-30 above, I do not see how it can be said that the Director or Commissioner failed to give consideration of the individual circumstances of the Applicants when making the “decisions” complained of by the Applicants in the present case.

GROUND 3: THE GOVERNMENT’S POLICY OR MODE OF CONSIDERATION BREACHED OR SIGNIFICANTLY INCREASED THE RISK OF BREACH OF VARIOUS FUNDAMENTAL RIGHTS

39.Mr Kay Chan’s argument that the HKSAR Government’s “policy” or “mode of consideration” leading to the decisions under challenge breached, or significantly increased the risk of breach, of various rights under BOR 14, 19(1) and 20 is difficult to understand.  The alleged “policy” or “mode of consideration” of the HKSAR Government that is relied upon for the purpose of the present argument is not clearly identified in the Amended Form 86.  It would appear that Mr Kay Chan relies on (i) the Director’s advice or instruction given to the 1^st Applicant to approach the Labour Department for a “no objection letter” referred to in §18 above, and (ii) the Commissioner’s decision not to further process the 1^st Applicant’s application for a “no objection letter” referred to in §20 above as constituting the relevant policy or mode of consideration[10].  I consider, however, that the Director and Commissioner was each giving a specific response to a specific request or application of the 1^st Applicant.  Their respective responses cannot properly be regarded as reflecting or constituting any general “policy” or “mode of consideration” of or by the HKSAR Government.  In any event, to the extent that that the Applicants are complaining about the failure or refusal of the Director and/or Commissioner to grant a waiver of the Live-In Requirement (assuming that it was within their power to grant such waiver), in view of (i) the acceptance by Mr Kay Chan that the imposition of the Live-In Requirement by the Director involves an application of the Ordinance governing “entry into” or “stay in” Hong Kong, and (ii) my view that both the 1^st and 2^nd Applicants are “persons not having the right to enter and remain in Hong Kong” within the meaning of Section 11 and the Immigration Reservation, reliance on rights under BOR 14, 19(1) and 20, which are not absolute and non-derogable, are excluded (see Comilang, ante, at §§38 and 53-54).

GROUND 4: LEGITIMATE EXPECTATION

40.The Applicants argue that they have a legitimate expectation that when the Director and Commissioner exercised any discretion in relation to waiver of the Live-In Requirement, they would comply with or at least take into consideration obligations imposed by international treaties including, in particular, CRC 9.  Mr Kay Chan accepts, however, that CRC 9 has not been “domesticated” as part of Hong Kong law by legislation.  That being the position, it cannot confer or impose any rights or obligations on individual citizens because of the common law dualist principle (see GA v Director of Immigration (2014) 17 HKCFAR 60, at §58; J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, at 500 per Lord Oliver of Aylmerton).  In the absence of domestic embodiment of a treaty obligation by local legislation, the relevant obligation cannot be brought in by the backdoor by requiring the Government to exercise a discretion consistently with the treaty obligation, or take it in account as a relevant factor in the exercise of a discretion (see R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, at 747G-748F per Lord Bridge of Harwich and 761E-762D per Lord Ackner).  The same conclusion must follow in so far as it is sought to bring in the treaty obligation through the doctrine of legitimate expectation, whether substantive or procedural.

41.In any event, CRC 9 (which provides that “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child”), is subject to the following express reservation declared by the PRC Government when notifying the Secretary-General of the United Nations that the CRC would apply to the HKSAR:

“The Government of the People’s Republic of China reserves, for the Hong Kong Special Administrative Region, the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the Hong Kong Special Administrative Region of those who do not have the right under the laws of the Hong Kong Special Administrative Region to enter and remain in the Hong Kong Special Administrative Region, and to the acquisition and possession of residentship as it may deem necessary from time to time.”

42.In relation to the Government’s exercise of discretion concerning the entry into, stay in and departure from the HKSAR of persons who do not have the right under Hong Kong laws to enter and remain in the HKSAR, the above reservation excludes the Applicants’ reliance on CRC 9 whether directly or indirectly and whether by way of legitimate expectation or as a relevant discretionary consideration (see Comilang, ante, at §§77, 79-81 and 90).

DISPOSITION

43.The application for leave to apply for judicial review is dismissed, with costs to the Commissioner and Director, to be taxed if not agreed, with certificate for 2 counsel.  The Applicants’ own costs (to the extent that they or either of them are on legal aid) shall be taxed in accordance with Legal Aid Regulations.

Mr Kay K W Chan, instructed by Choy Yung & Co, for the 1^st and 2^nd Applicants (1^st Applicant: assigned by DLA)

Mr Abraham Chan, SC and Ms Bonnie Y K Cheng, instructed by Department of Justice, for the 1^st and 2^nd Putative Respondents