Subba Roda v. Director of Immigration

HCAL 1002/2021

[2021] HKCFI 3430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1002 OF 2021

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BETWEEN

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

Date of Judgment:  16 November 2021

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J U D G M E N T

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A.  Introduction

1.The applicant is a former domestic helper (“FDH”).  She overstayed in Hong Kong after her FDH contract was terminated and her FDH visa expired.  On 24 May 2021, she applied to the Director of Immigration for a new FDH visa to work for a new employer.  On 5 June 2021, the Director refused to process the application on the basis that the applicant’s limit of stay had already expired (“Decision”).  On 15 July 2021, the applicant filed a Form 86 seeking leave to challenge the Decision by way of judicial review.

2.The applicant acts in person.  On 23 August 2021, this Court directed that the Director shall file and serve its 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 28 days thereafter.  The Director filed its initial response (with supporting documents)  on 4 October 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 1 November 2021.

3.Having carefully considered the materials, I have decided that the leave application should be determined on paper.

B.  Background Facts

4.The case concerns the application of subsequent FDH visas.  It is convenient to set out the relevant policy first.  The policy is mainly contained in the Guidebook for the Employment of Domestic Helpers from Abroad (“Guidebook”)  and was supplemented by some press releases issued by the Director when the pandemic broke out.

B1.  Policy on applying for subsequent FDH visas

5.The limit of stay of a FDH visa will normally expire when the two-year FDH contract has run its full course or two weeks after the contract has been prematurely terminated, whichever is earlier.  Even if the FDH manages to line up a second contract prior to the expiry of the first one, she still has to leave Hong Kong and return to her place of origin before coming back to take up the second contract.  This is called the home leave requirement.  She has to apply for a new FDH visa for the second contract.

6.The FDH can apply for the new visa when she is back in her place of origin between contracts.  But it is also possible for her to make the application while she is still in Hong Kong, working towards the end of her first contract.  The latter option is only possible if the application (1) is made prior to the expiry for the first contract and (2) while the limit of stay is still current.  The home leave requirement will not be dispensed with even if the application for a fresh FDH visa has already been made while the FDH is still in Hong Kong.  But the home leave could be deferred for a maximum of 1 year if circumstances do not permit immediate return to the place of origin upon expiry of the first contract.  See §§18-25 of the Guidebook.

B2.  Flexible arrangement during the pandemic

7.The Covid-19 pandemic broke out in early 2020 which impacted FDHs’ arrival from and departure to their place of origin.  By a press release dated 21 March 2020, the Director announced that for FDHs whose visas had expired, their applications for extension of stay as visitor for the purpose of finding a new employer would be flexibly considered.

8.However, very soon there were concerns that FDHs were abusing this flexible arrangement for “job-hopping” purpose – they terminated their original contract in search of a better offer and applied to stay as a visitor during the job searching period.

9.By a press release dated 30 December 2020, the Director announced that, in order to curb the job-hopping abuse (and to mitigate the risks associated with FDHs staying in over-crowded boarding facilities), FDHs who terminate their contracts prematurely would not be allowed an extension of stay as visitor and they have to return to their place of origin within two weeks of the termination in accordance with their limit of stay.  The Director would step up scrutiny against suspected job-hopping cases and FDH visas applications will be refused in suspected job-hopping cases.

10.In the 30 December 2020 press release, it was also stated that if there are exceptional circumstances which warrant special consideration, FDHs with prematurely terminated contracts could also apply for extension of stay as visitor to the Director.  Such exceptional circumstances were elaborated in a press release dated 8 February 2021, and examples include that the premature termination was due to transfer, migration, death or financial reasons of the original employer, or if there is evidence suggesting that the FDH has been abused or exploited.

B3.  Applicant’s case

11.The applicant first entered Hong Kong on 4 May 2018 on the strength of an FDH visa which expired on 4 May 2020.  Before the visa expired, she renewed her employment contract with the same employer for another two years, ie. up to 4 May 2022.  The Director extended her FDH visa for one year instead of two – up to 4 May 2021, presumably because the applicant did not return to India between the two contracts and deferred the required home leave.

12.On 28 April 2021, the Director was notified that the applicant’s contract was prematurely terminated on 22 April 2021 upon mutual agreement between the employer and employee.  The reason provided was that the applicant wanted to go back to India to visit her family and the employer had already purchased the return ticket for her.

13.The applicant had to leave Hong Kong by 4 May 2021 – being the earlier date than two weeks after the termination of her contract.  However, she did not leave and, instead, applied for extension of stay as a visitor for the purpose of processing papers with a prospective employer.  Such application was made twice, on 4 May 2021 and 18 May 2021. Both applications were rejected and the Director requested her to leave on or before 25 May 2021.

14.On 24 May 2021, the applicant applied for a new FDH visa.  It was revealed that she had found a new employer and a contract was entered into on 17 May 2021.  By a letter dated 18 May 2021 attached to the visa application, the applicant said that “due to the serious widespread of COVID19 pandemic in India all flight to and from India has been banned until further notice and hence I have decided to stay back and continue to work as a domestic helper in Hong Kong to support my family financially in India.” She also requested the Director, essentially, to waive the home leave requirement because of the pandemic.

15.By letter dated 5 June 2021 (which contains the Decision), the Director stated that (emphasis in original):

According to our records, your limit of stay in Hong Kong had expired upon submission of this application.  Therefore, this application will not be further processed.

If you still wish to work for a new employer in Hong Kong, you must return to your place of origin first and then submit a fresh application.

C.  Grounds of Intended Review

16.The relief sought in the Form 86 is to quash the Decision and to remit the visa application back to the Director for his consideration.  No grounds of intended review are provided in the Form 86.  In the applicant’s supporting affirmation, at §§ 3-4, it was stated that

3.  I applied to the Director of Immigration for a Domestic Helper visa with the new employer.  The Director did not proceed with the submitted application and told me to go back to India and then apply.  With all due respect, the flights to India and from India are restricted due to the pandemic.  It is much more practical for all the parties if the Director accepts my application from within Hong Kong.

4.  They have further ordered me to leave Hong Kong right away, which is wrong considering the international travel restrictions imposed by the Government of Hong Kong and carried out by the Director himself.

D.  Are there Merits in the Proposed Challenge?

17.That the FDH’s limit of stay should remain current is one of the requirements if the FDH wants to apply for fresh FDH visa while still in Hong Kong.  That is part of the policy stated in the Guidebook. Since the applicant’s limit of stay has expired, the Director insisted that she has to go back to India first before she applies.

18.It is well established that where the Director has adopted policies 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.

19.Given that the applicant did not take issue with Director’s refusal to extend her limit of stay, the refusal to process her visa application was but a natural application of the policy stated in the Guidebook.

20.The applicant did not argue that she should have been granted extension of stay.  By the time she terminated her first contract, the announced policy was to refuse extension of stay for FDHs with prematurely terminated contracts, who were considered as job-hoppers unless shown otherwise.  She did not challenge this policy.  Nor did she provide any exceptional circumstances to justify special consideration in her case.

21.All she said in her affirmation was it would be more practical to allow her to make the visa application from within Hong Kong in view of the pandemic.  The Director is entitled to refuse affording such practicality or convenience to the applicant and to choose to enforce the prevailing policy instead.

22.Although the Director did order the applicant to leave since she has been overstaying, her presence in Hong Kong has been tolerated so far in the sense that she was not deported.  This is a sufficient answer to her complaint that she was ordered to leave despite the international travel restrictions.  Clearly it does not follow from the toleration of her stay that her FDH visa application should be processed or granted.

E.  Conclusion

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

The applicant, acting in person