Tamang Manisha v. Director of Immigration

CACV 480/2021

[2022] HKCA 867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 480 OF 2021

(ON APPEAL FROM HCAL NO 390 OF 2021)

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Before: Hon Cheung and G Lam JJA in Court

Date of Hearing: 8 June 2022

Date of Judgment: 21 June 2022

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Coleman J given on 7 October 2021, wherein the learned judge, based on consideration of the documents alone, refused leave to apply for judicial review.[1] The Applicant had sought leave for judicial review of the decision of the Director of Immigration (“Director”) dated 5 March 2021 refusing her application for renewal of her visa to work in Hong Kong as a foreign domestic helper (“FDH”).

Background

2.The Applicant is an Indonesian national and was first granted an FDH visa by the Director in 2017. As the Applicant’s contract would expire shortly, she applied to the Director for renewal of her visa on 19 January 2021.  In processing her application, it came to the Director’s notice that the Applicant had been convicted of theft on 15 September 2020 and fined $800. 

3.Despite that conviction, the Applicant’s employer supplied a reference to the Director in support of her application.  In a separate letter dated 21 February 2021, the employer highlighted the Applicant’s familiarity with her timetable, her nature, her food requirements and her household chores, as well as the time constraints in training a new FDH.

4.By letter dated 5 March 2021, the Director refused the application, stating that the Applicant had failed to satisfy the eligibility criteria stated in the “Guidebook for the Employment of Domestic Helpers from Abroad” (“Guidebook”), which provided:

“ II. Eligibility Criteria

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

…

(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.”

5.On the same day, by a joint letter, the Applicant and her employer asked the Director to reconsider the case, stating that her criminal record was insignificant, that the employer’s medical conditions rendered her vulnerable in the pandemic, and that the Applicant had developed a bond with the employer’s family and could serve the family’s needs well.

6.The Director was unpersuaded and maintained his decision.

The judge’s decision

7.In the affirmation filed in support of the application for leave to apply for judicial review, the Applicant stated that her conviction was not “significant enough to warrant a rejection”, and that her employer was suffering from chronic illness, and that it would be “hard for her to find a suitable trusted replacement”.  She also submitted that the Director had “failed to attain the high standard of fairness required by the Wednesbury test in the decision.”

8.The judge’s reasons for refusing the application are as follows:

(1)  Although the Director’s stated reason was brief, there is no doubt that the Applicant was aware that the refusal was based on her theft conviction which was a criminal record.

(2)  The Guidebook was essentially the Director’s policies in respect of issuing FDH visas.  The Applicant’s theft conviction resulted in non-compliance with the clear criminal record requirement as provided in §3 of the Guidebook.  It was neither unlawful nor unreasonable for the Director to consider that the theft conviction was a “known record to the detriment” of the Applicant.

(3)  The Director was entitled to take the view that the Applicant fell outside the prevailing policies.  The Director had considered the circumstances of the case including the employer’s circumstances.  He was entitled to come to the view that they did not justify exceptional consideration.

This appeal

9.The Applicant advances two grounds of appeal in her Supplemental Notice of Appeal.  First, she contends that “the gravity of [her] circumstances” had not been “weighed or realised” by the Director and that she should be given an opportunity to plead her case properly.  Secondly, the Applicant submits that the judge erred in holding that her criminal conviction, which resulted in a fine, amounted to a serious criminal conviction.

10.Before us as in the proceedings below the Applicant has acted by herself without legal representation.  Even so it is regrettable that she has failed to lodge any skeleton argument for the appeal, which is an important requirement set out in Practice Direction 4.1 applicable to litigants in person and represented litigants alike: see e.g. United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [37].

11.At the hearing of the appeal, the Applicant claimed during her oral submissions that she did not commit theft and only accepted the accusation because she wanted to be released from custody.  This contention was not only never mentioned in her evidence, but is contrary to the contents of the representations made to the Director.  For example, in the Applicant’s letter to the Director dated 21 February 2021, she wrote with reference to the theft case: “… I will never repeat this type of mistake again in my life.  I am regretting my mistake and requesting you and your department to forgive my mistake …”; the employer’s letter of the same date stated that she was surprised to hear about that case and that the Applicant had “repented upon her action”.  In these circumstances, there is no basis whatsoever for this court to proceed otherwise than on the footing that there was a proper and valid conviction of the Applicant for theft.

Discussion

12.It should be borne in mind that there is no challenge in this case against the Director’s policy as stated in the Guidebook.  With regard to that policy, it has been held that the requirements of “no known record to the detriment of the … Helper” and “of clear criminal record” therein are not confined to criminal records relating only to breaches of immigration or labour laws: Aguilar Joenalyn Elmedorial v Director of Immigration (CACV 225/2012; 17 January 2013); (FAMV 47/2013; 28 January 2014).  It follows that the Director was fully entitled to take into account the Applicant’s conviction in refusing to renew her visa.

13.In our judgment, the Applicant’s first ground has no factual basis.  Both the Applicant and her employer had the opportunity to make representations to the Director and request him to reconsider her case, which they did.  There was no lack of opportunity to advance her case.  Nor is there anything to suggest that there was anything relevant that was not “weighed or realised” by the Director.  The Applicant has not specified what “circumstances” had allegedly not been weighed by the Director or in what way they were said to be relevant to his decision.  It is, of course, the Director, and not the court, who administers the scheme of immigration control in Hong Kong. As the judge pointed out, for factors which the Director is not required by legislation to take into account, 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 §21 of the judgment.  The Applicant has not made out any case for the court’s intervention.

14.As to the Applicant’s second ground, the judge did not hold that a mere misdemeanour amounted to a serious criminal conviction.  What the judge said was that the Applicant’s theft conviction clearly breached the “clear criminal record” requirement as stated in the Guidebook, and that it was neither unlawful nor unreasonable for the Director to consider that the theft conviction was a “known record to the detriment” of the Applicant within the meaning of the Guidebook: see §§18-19 of the judgment. These conclusions cannot be faulted.

15.For these reasons, neither of the grounds of appeal is made out, and the appeal must therefore be dismissed. 

The Applicant (Appellant), unrepresented, acting in person

Mr Sunny Li, Senior Government Counsel of the Department of Justice, for the Putative Respondent (Respondent)