Tamang Manisha v. Director of Immigration

HCAL 390/2021

[2021] HKCFI 3006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 390 OF 2021

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Decision: 7 October 2021

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D E C I S I O N

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A. Introduction

1.By Notice of application dated 19 March 2021 (“Form 86”), the applicant seeks leave to apply for judicial review against the decision dated 16 March 2021 (“Decision”) made by the Director of Immigration (“Director”), refusing the applicant’s application for a visa to work as a foreign domestic helper (“FDH”) in Hong Kong.

2.The applicant acts in person.  On 22 March 2021, directions were given that the Director shall file and serve his initial response (with copies of any relevant documents) within 42 days and that the applicant shall have leave to file and serve her reply within 21 days thereafter.  The Court also directed that it shall decide whether the leave application shall be dealt with on paper, depending on the content of the Director’s initial response and the applicant’s reply (if any).  By letter dated 7 July 2021, the Director sought the Court’s indulgence to extend his filing deadline by 28 days from the date of the letter, which was approved by the Court.

3.The Director filed his initial response (with supporting documents) on 4 August 2021, and has also filed an affirmation evidencing service of the initial response on the applicant on the same day. The applicant did not file any reply by the filing deadline of 25 August 2021. Having carefully considered the materials, I have decided that the leave application should be determined on paper.

B.  Background Facts

4.The applicant is an Indonesian national.  She was first granted an FDH visa to work in Hong Kong in 2017.  By January 2021, she was working for a Ms Gurung Dhansara (“Employer”) on a two-year contract which would expire on 7 February 2021.  On 19 January 2021, the applicant applied to the Director for a renewal of her FDH visa so that she could continue to work for the Employer.

5.In processing her application, it came to the Director’s notice that the applicant had on 15 September 2020 been convicted of theft and fined HK$800.  By letter dated 16 February 2021 to the Employer, the Director requested the applicant to state if she had been involved in any police, immigration, labour and/or other court cases within and outside Hong Kong and to provide details if the answer was positive.  By letter dated 21 February 2021 to the Director, the applicant provided details of her conviction.  In a separate letter also dated 21 February 2021 issued by the Employer to the Director, the Employer spoke favourably of the applicant and indicated willingness to support the applicant’s FDH visa application despite the criminal conviction.  The Employer said the applicant was familiar with her timetable, her nature, her food requirements and her household chores, and she did not have time to teach a new helper.

6.By letter dated 5 March 2021, the Director refused the applicant’s application.  The reason provided in the letter was that:

Having considered all circumstances of your case, we regret to inform you that you have not met eligibility criteria given in the ‘Guidebook for Employment of Domestic Helpers from Aboard’.

7.In the Director’s internal memo also dated 5 March 2021, the reasons for refusal were stated as follows:

(a)  [Applicant] was convicted of ‘Theft’ and was fined HKD800 on 15-9-2020. This conviction record was undoubtedly a known adverse record to detriment of the helper.  It was also not satisfied that [applicant] met the normal immigration requirement;

(b)  [Applicant] finished the first contract with [Employer].  [Applicant] was mainly hired to perform household chores which her service was not believed to be irreplaceable;

(c)  there was no compassionate grounds to justify special consideration.

8.By joint letter dated 5 March 2021, the applicant and the Employer applied to the Director for a reconsideration. In the letter, it was stated that:

We understand that the visa is rejected due to a fine of $800 paid by the applicant on the Court Order.  Although it is a criminal record but it is very insignificant in nature.  It will be considered spent in two years anyway.  The applicant has already shown remorse.

9.It was also stated in the letter that the Employer had some medical conditions which rendered her vulnerable in the pandemic and that the applicant had already developed a bond with the family and could serve the family’s needs well.

10.By letter dated 16 March 2021 (i.e. the Decision), the Director maintained his decision.  The reason provided was that:

Having considered all the circumstances of the case and all available information, we are not satisfied that you have met the eligibility criteria given in the “Guidebook for Employment of Domestic Helpers from Aboard” as a foreign domestic helper in Hong Kong.

11.In the Director’s internal memo dated 8 March 2021, the reasons for maintaining the original decision were that:

(a)  Having considered the information provided above, the case did not justify exceptional consideration, inter alia, [applicant] did not fulfil the requirement of clear criminal record; and

(b)  Despite [the Employer] vouched her full support towards [the applicant], there is no supporting documents showing [the applicant] is the only available FDH and her service cannot be replaced by other available FDH.

C.  Intended Grounds of Review

12.No intended grounds of review are provided in the Form 86.  In the applicant’s supporting affirmation, at §§3-6, it was stated that:

“3. I received the decision and the reason for rejection is because I was fined HK$800.00 for a criminal charge.

4. I submit that that my conviction is not significant enough to warrant a rejection.

5. My employer is suffering from chronic illness and she has already requested the Immigration department and provided all the relevant medical evidence. It will be hard for her find a suitable trusted replacement.

6. The director has failed to attain the high standard of fairness required by the Wednesbury test in the decision”

D.  Is There Merit for the Grant of Leave?

13.The requirement of ‘clear criminal record’ and the requirement of ‘no known record to the detriment of the applicant’ (as mentioned in the Director’s two internal memoranda) are eligibility criteria provided in a guide book known as the “Guidebook for Employment of Domestic Helpers Aboard” (“FDH Guidebook”) issued by the Director.  In §§2-3 of the section titled “Eligibility Criteria”, it is stated:

II.  Eligibility Criteria

2.   Employers who wish to employ Helpers have to satisfy the following criteria:-

(a)  …

…

(h)  The bona fides of the employer and the Helper are not in doubt; there is no known record to the detriment of the employer and the Helper…

3. A Helper must be in possession of a proper visa before he/she travels to the HKSAR.  The issuance of a visa to individual Helper is subject to the normal immigration requirements being met (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be of clear criminal record and raises no security or criminal concerns to the HKSAR, has no likelihood of becoming a burden on the HKSAR; etc).  Employers who satisfy the above criteria should not assume that their Helper’s visa application would be approved automatically.

14.In the Decision, the reason given by the Director for the rejection of the application’s FDH visa application was brief: the applicant failed to meet the eligibility criteria set out in the FDH Guidebook upon considering all circumstances of her case.  The Director did not expressly single out the applicant’s theft conviction as the relevant circumstance or information which had led to the breach of the eligibility criteria in the FDH Guidebook.  Nor did the Director specify the relevant eligibility criteria which the applicant was said to have failed to meet.

15.That said, as shown in the applicant’s letters to the Director and her affirmation, there is no doubt that she was aware that the refusal was because of her theft conviction which was a criminal record. In any event, it is not her complaint that no reason or insufficient reason was given to her.

16.The applicant’s main complaint, as shown her affirmation, is that (a) the conviction was minor and should not warrant a rejection of her FDH visa application, and that (b) the circumstances of the Employer were not sufficiently considered.  Whilst the Director did consider other circumstances of the applicant’s case in the internal memos, as reflected in the Decision issued to the applicant, the Director must have considered the failure to meet the eligibility criteria a sufficient ground to reject the applicant’s application.  In any event, the Director did consider the Employer’s circumstances in the internal memorandum and concluded that those factors did not justify exceptional consideration.

17.What was stated in the FDH Guidebook, including the eligibility criteria there set out, was essentially the Director’s policies in respect of issuance FDH visas.  In the immigration context, it is well established that where the Director has adopted policies or practices regarding the exercise of his discretion, the public law would require the Director to act properly in accordance with such policies or practices: see BI v Director of Immigration [2016] HKLRD 520 at §47, endorsing §62(2) of the judgment below.

18.The theft conviction would clearly lead to the breach of the clear criminal record requirement as provide in §3 of the FDH Guidebook.

19.For the requirement that there should be no known record to the applicant’s detriment, the Court has held that whether any particular record is to the detriment of the applicant in any given case is a matter primarily for the Director to decide, subject to the supervisory jurisdiction of the court.  The no known record criterion has a wider meaning and covers records which may not be criminal records: see H v Director of Immigration (unreported, HCAL 172/2015, 3 November 2016) at §49.  On the present facts, it is clear that it was neither unlawful nor unreasonable for the Director to consider that the theft conviction, being a criminal record, was also a known record to the detriment of the applicant.

20.Given that the Director had adopted the requirement of clear criminal record and the requirement of no known record to the applicant’s detriment as “eligibility criteria” for issuance of FDH visas, he was entitled to take the view that failure to meet those criteria had rendered the applicant ineligible to obtain a FDH visa, that she fell outside the prevailing FDH policies.  It is not reasonably arguable that the Director, in rejecting the applicant’s application on the ground of her failure to meet the eligibility criteria, was acting unlawfully or irrationally in the public law sense.

21.Further, no viable ground of appeal could arise from the Director’s assessment of the Employer’s personal circumstances.  It is settled law that in the immigration context, for factors which the Director are not mandated to take into account by legislation, it is for the Director to decide what factors he should have regard to in the exercise of his discretion and the proper weight (if any) to be given to them: see BI v Director of Immigration (supra), at §§105 and 118.  The Director was entitled to come to the view that the circumstances of the case (other than the theft conviction) did not justify exceptional consideration.

E.  Conclusion

22.The applicant’s leave application is therefore dismissed, with no order as to costs.

The applicant, acting in person

Mr Sunny Li, Senior Government Counsel and Mr Matthew Hui, Government Counsel, of Department of Justice, for the putative respondent