Tamang Minita v. Director of Immigration

CACV 104/2021

[2021] HKCA 1953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 104 OF 2021

(ON APPEAL FROM HCAL 2348/2020)

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Before: Hon Barma JA and Au JA in Court

Date of Hearing:  16 December 2021

Date of Judgment: 23 December 2021

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Chow J (as he then was) (“the judge”) given on 8 March 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 26 November 2020 (“the Director’s Decision”) refusing the applicant’s application for a visa to work as a foreign domestic helper (“FDH”) in Hong Kong.

Background

2.The applicant is a national of India.  She was first permitted to work as an FDH in Hong Kong on 4 August 2015, and she first arrived in Hong Kong on 17 August 2015.  The applicant’s various contracts of employment with several different employers were entered into or extended in the ensuing few years, and the Director granted the applicant a number of extensions of stay to enable her to fulfil those contracts.  The latest extension granted the applicant permission to remain in Hong Kong until 19 September 2020.

3.On 15 September 2020, the applicant was convicted of the offence of theft, arising out of a shoplifting incident and was fined HK$800.00.

4.On 23 October 2020, the applicant submitted a further extension of stay application to the Director with a view to taking up a new employment as an FDH.  By a letter from the Director dated 19 November 2020, the applicant was informed that according to the Immigration Department’s “Guidebook for the Employment of Domestic Helpers from Abroad” (“the Guide”), eligibility criteria to be satisfied by employers wishing to employ an FDH included, according to paragraph (2)(h) of section II of the Guide, that there be no doubt as to the bona fides of the employer and the FDH and that there be no known record to the detriment of the employer and the FDH.  The letter also pointed out that the Guidebook stated (at paragraph 3) that the issuance of a visa was subject to normal immigration requirements – such as being of clear criminal record – being met.  By a further letter dated 21 November 2020, the Director informed the applicant that her conviction on 15 September 2020 would be taken into account in connection with her application for extension of stay, and warned her that such an application would not normally be approved.

5.Thereafter, by a joint letter dated 26 November 2020 from the applicant and her prospective employer to the Director, the applicant confirmed her criminal conviction while the employer stated that the applicant would nonetheless be hired if the Immigration Department approved her application.

6.By a letter also dated 26 November 2020 from the Director to the applicant, she was informed that the Director was not satisfied that she had met all the eligibility criteria provided in the Guide, and her application was accordingly refused – this was the Director’s Decision. 

The judge’s decision

7.The applicant filed a Form 86 on 30 November 2020 seeking to judicially review the Director’s Decision, but did not set out any grounds for judicial review in the Form 86.

8.In her supporting affirmation filed on the same date, the applicant deposed, inter alia:

“I received the [Director’s Decision] and apparently, there is no proper reason explained. They have given a vague reason that I do not qualify. However, I qualify on all grounds.”

9.After summarizing the facts and background of the case and giving due consideration to the Director’s Decision, the judge refused to grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [15] to [17] of his decision ([2021] HKCFI 502): 

“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.”

This appeal

10.In her Notice of Appeal filed on 16 March 2021, the applicant stated that:

“… the gravity of my circumstances have noted [sic] been weighed or realised by [the Director] while considering my visa application, I should be given an opportunity to plead my case properly.”

11.In her supporting affirmation, the applicant exhibited a copy of the order made by the judge dated 8 March 2021 and stated:

“I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

…

I humbly request the Court to exercise its discretion to allow me to appeal.”

12.Notwithstanding paragraph 3 of the directions given by the Registrar of Civil Appeals on 2 July 2021, the applicant failed to lodge skeleton submissions in compliance with Section G of Practice Direction 4.1. We must reiterate that this court does not condone non-compliance with the Practice Direction, as the proper preparation for the hearing of the appeal by the court and the opposing parties would inevitably be impaired by the failure to serve skeleton submissions as required.  Litigants in person, such as the applicant, are under not exempt from compliance with this requirement (see e.g. United Muslim Association of Hong Kong & ors v Yusuf Yu & ors [2018] HKCA 451 at [37]).

13.On 7 July 2021, the Department of Justice, representing the Director as the putative respondent to the judicial review, indicated that the Director would oppose the appeal.  By her skeleton submissions dated 2 December 2021, Ms Joycelyn Ho, Government Counsel, referred to BI v Director of Immigration [2016] 2 HKLRD 520 and contended that the Director is vested with a wide discretion to grant or refuse a visa application, and that he did not commit any error of law in reaching the Director’s Decision.

14.We heard the appeal on 16 December 2021.  The applicant appeared in person, and had nothing further to add to the matters stated in her Notice of Appeal other than to state that she and her family wished her to stay in Hong Kong, while Ms Ho adopted and relied upon her skeleton submissions.

Discussion

15.The applicant’s complaints in the Notice of Appeal relate only to alleged errors committed by the Director.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, and it is necessary for the applicant to identify some error on the part of the judge that would justify this court’s intervention.  It is thus incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Director, which were overlooked by the judge.  The judge is not required himself to come to a view on the merits of the applicant’s visa application.  The applicant has wholly failed to identify any error on the part of the judge.  There is thus no viable ground of appeal put forward by her, and the appeal should be dismissed on this basis alone.

16.Further, even though the applicant contends in her Notice of Appeal that the gravity of her “circumstances” have not been “weighed or realised” by the Director in reaching the Director’s Decision, she did not condescend to particulars as to what those “circumstances” might be, nor in what way they were said to be important or relevant to the Director’s determination of her visa application.

17.We also note that, as is apparent from the correspondence referred to in [4] to [6] above, the applicant had been advised of the matters that concerned the Director, and was given an opportunity to present her case and all relevant facts to the Director, and in fact did so by way of her joint letter with her prospective employer dated 26 November 2020. In the Director’s Decision, the Director expressly stated that “all the circumstances of the case and all available information” had been considered.  It cannot therefore be said, as appears to be suggested by the Notice of Appeal, that the applicant had not been afforded an opportunity to put forward her case “properly”.

18.Further, it is well established that the court should not usurp the role of the Director and will only intervene if public law grounds for doing so are established.  As this court (Kwan and Fok JJA (as they then were) and Barma JA) held in Aguilar Joenalyn Elmedorial v Director of Immigration (CACV 225/2012, 17 January 2013):

(1)  The words “no known record to the detriment of the employer and the [FDH]” in that paragraph refer to and include criminal records in general, which is consistent with the Immigration Department’s policy that the prospective FDH is subject to the normal immigration requirement of being of clear criminal record.  See [20] to [27] of the judgment in Aguilar.

(2)  As a matter of law, it is for the Director, not the court, to administer immigration policies.  Whether the criminal conviction of an FDH would or would not, and in what way and to what extent, impact on the merits of his or her visa application, is a decision that is properly one for the Director.  See [54] and [55] of the judgment in Aguilar. See also the decision of the Appeal Committee of the Court of Final Appeal in that case in FAMV 47/2013 (28 January 2014), affirming this court’s judgment.

19.It is beyond argument that absent the existence of established public law grounds such as Wednesbury unreasonableness, illegality or procedural impropriety, the court will not interfere with the decision maker’s (in this case the Director’s) policies or exercise of discretion.  It is a cardinal principle of public law that the court, in its public law jurisdiction, exercises only a supervisory jurisdiction.  It is also well established that the court should (absent a public law error) defer to the Director in relation to matters within his remit, as it is the Director who is entrusted by the legislature with the task of regulating Hong Kong’s immigration controls (see Gurung Deu Kumari v Director of Immigration [2010] 6 HKC 137).

20.In the present case, there is no dispute that the applicant was convicted of a criminal offence in Hong Kong prior to the application for an FDH employment visa which led to the Director’s Decision. On the basis of the relevant policy as previously construed by this court, the applicant’s conviction is a factor which could properly be taken into consideration by the Director in reaching the Director’s Decision.  The judge has given due and careful consideration to the Director’s Decision and has found no basis for intervening.  In our view, he was clearly correct to do so.

21.In any event, the grounds advanced by the applicant are vague and lack particulars, and should be rejected for this reason also.

22.Finally, the statement in the applicant’s affirmation of 8 March 2021, referred to in [11] above, can take matters no further, as it does not identify the “good ground of appeal” that is asserted to exist.

23.For all of the above reasons, there is no merit in the appeal and we dismiss it accordingly.  The Director sought an order for costs in the event that the appeal was dismissed.  However, after considering all the circumstances of the case, including the fact that the judge did not order costs before him notwithstanding the involvement of the Director in the matter below, we shall make no order as to costs.

The applicant appeared in person

Ms Joycelyn Ho, Government Counsel of Department of Justice, for the putative respondent