Tamang Minita v. Director of Immigration

HCAL 2348/2020

[2021] HKCFI 502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2348 OF 2020

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Before: Hon Chow J in Chambers

Date of Decision: 8 March 2021

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D E C I S I O N

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INTRODUCTION

1.This is an application by the Applicant for leave to apply for judicial review of the decision of the Director of Immigration on 26 November 2020 refusing her application for a visa to work as a foreign domestic helper in Hong Kong.

BASIC FACTS

2.The Applicant is an Indian national born in India on 4 June 1989.

3.On 4 August 2015, the Applicant was first permitted to work in Hong Kong as a foreign domestic helper.  She came to Hong Kong on 17 August 2015.  In July 2017, the Applicant’s application for contract renewal with the same employer was approved by the Director.  The employment with that employer was terminated on 21 May 2018, and the Applicant departed Hong Kong on 3 June 2018.

4.On 31 July 2018, the Applicant’s application to work as a foreign domestic helper for another employer in Hong Kong was approved by the Director.  She then came to Hong Kong on 20 August 2018.  Her employment for that employer was terminated upon completion of the 2-year contract on 20 August 2020.

5.On 20 August 2020, the Applicant made an application for extension of stay to arrange for departure from Hong Kong on the ground that there was no flight to India.  The application was approved, and the Applicant was allowed to stay in Hong Kong until 19 September 2020 on visitor status.

6.On 7 September 2020, the Applicant made another application to the Director to work as a foreign domestic helper.  That application was withdrawn on 12 October 2020.

7.In the meantime, on 15 September 2020, the Applicant was convicted in the Kowloon City Magistrates’ Courts of the offence of theft, and given a fine of HK$800.

8.On 23 October 2020, the Applicant submitted another application to the Director for a visa to work as a foreign domestic helper.

9.By a letter dated 19 November 2020, the Immigration Department referred the Applicant to the “Guidebook for the Employment of Domestic Helpers from Abroad” and drew her attention to the fact that one of the eligibility criteria for an application to work as a foreign domestic helper was that there was no known record to the detriment of the helper, and that the issuance of an employment visa to a helper was subject to the normal immigration requirements (including that the helper be of clear criminal record) being met.  The Immigration Department asked the Applicant to state: “if you have even been involved in any Police, Immigration, Labour and/or other court case within and outside Hong Kong.  If positive, please provide details, case result and any official documents concerning your case.”

10.By a further letter dated 21 November 2020, the Immigration Department informed the Applicant that her aforesaid conviction record for the offence of theft would be taken into consideration in her future applications for employment as a foreign domestic helper in Hong Kong.

11.By a joint letter from the Applicant and her prospective employer dated 26 November 2020, the Applicant confirmed that she was involved in a shoplifting case, and her prospective employer expressed her willingness to employ the Applicant nevertheless.

12.The Director was not satisfied that the Applicant had met all the eligibility criteria for a foreign domestic helper visa to be issued to her, in view of, inter alia, the following:

(1)  the Applicant’s conviction for the offence of theft was a known adverse record to the detriment of the Applicant; and

(2)  the Applicant did not meet the normal immigration requirements.

13.By a letter dated 26 November 2020, the Director informed the Applicant that her application to work as a foreign domestic helper in Hong Kong was refused because he was not satisfied that she had met all the eligibility criteria in the “Guidebook for the Employment of Domestic Helpers from Abroad” (“the Decision”).

14.On 1 December 2020, the Applicant made the present application for leave to apply for judicial review of the Decision.

DISCUSSION

15.In her Form 86 dated 1 December 2020, the Applicant states that she seeks an order of certiorari to quash the Decision, but fails to set out any grounds on which relief is sought.  In her affirmation filed in support of the application, the Applicant states that she received the Director’s decision but there was no proper reason given for the decision, except “a vague reason that I do not qualify”.  In the Applicant’s Reply to the Director’s Initial Response, the Applicant reiterates the complaint that the Director did not give any reason for his decision.  She says that she pleaded guilty to the charge of theft, and her conviction will be considered “spent” in less than 3 years.  She also says that her prospective employer has no problem with her conviction and has already told the Director of her wish to employ the Applicant despite the “‘detriment’ record”.

16.In relation to the complaint of absence of reason for the Decision, it is, in my view, clear from the correspondence referred to in §§9 to 13 above, read as whole, that the Director rejected the Applicant’s application for a foreign domestic helper visa because of her aforesaid conviction record which constituted a “known record to the detriment” of the Applicant, and also meant that she did not satisfy the normal immigration requirements for the issuance of an employment visa.

17.In relation to the fact that the Applicant has already suffered the punishment for the offence, that her conviction will be “spent” in less than 3 years, and that her employer is willing to employ her despite her conviction record, these are discretionary matters for the Director, not the court, to consider.  The court cannot substitute its own views for that of the Director, even though the court has some sympathy for the Applicant’s position.  The court cannot interfere with the Director’s decision unless it was unlawful or Wednesbury unreasonable, or was made in a procedurally improper manner.  None of these grounds exists on the facts of the present case.  On the other hand, the Director’s eligibility criteria for the issuance of a foreign domestic helper visa, and his strict immigration policy, are well known.  Overall, there is no proper or sufficient basis for the court to interfere with the Director’s decision in the present case in the exercise of its supervisory jurisdiction in judicial review.

DISPOSITION

18.The application for leave to apply for judicial review is dismissed, with no order as to costs.

The Applicant, acting in person

Mr Gilbert Mok, Government Counsel and Ms Joycelyn Ho, Government Counsel, of Department of Justice, for the Putative Respondent