Elvira Vergara, Edita Tolibas Gwenn Arcilla and Nicanora Maglines v. The Attorney General

HCMP001409/1987

IN THE HIGH COURT OF JUSTICE

HONG KONG

MISCELLANEOUS PROCEEDINGS

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Coram: Hon. Jones J. in Court

Dates of hearing: 30th and 31st July, 1987

Date of delivery of judgment: 17th August 1987

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JUDGMENT

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1. This is an application for judicial review pursuant to leave that I granted on the 10th July 1987. The applications are made by four Filipina maids and relate to a change in the conditions of stay applicable to foreign domestic helpers that was introduced in April 1987. The change about which complaint is made arises from a policy decision of the Executive Council that now requires an endorsement to be made in the passport of all foreign domestic helpers permitting the holder to remain until a specific date or in the alternative to two weeks after termination of contract whichever is earlier.

2. Each of the four applicants had contracts of employment to work in Hong Kong as domestic helpers and entered Hong Kong before the new policy was announced. By reason of their contracts of employment and before the new policy was introduced, the applicants had permission to land and their passports were stamped with endorsements for an initial period of six months which were later renewed for similar periods.

3. The law that governs the right to land in Hong Kong is set out in sections 8, 9, 10 and 11 of the Immigration Ordinance, Cap. 115. The section that applies to domestic helpers is section 11 which provides where relevant as follows:-

4. Other sections of the Immigration Ordinance that are of relevance are Sections 19, 41 and 53. Section 19 of the Ordinance confers a power upon the Director of Immigration to make a removal order against a person requiring him to leave Hong Kong. The section requires that after a removal order has been made the Director shall cause written notice to be served upon the person as soon as practicable informing him of the ground upon which it was made and that an appeal can be made within 24 hours of receiving the notice of the order. Section 41provides that if a person contravenes a condition of stay in force, he shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for 2 years while S.53 provides for the review of decisions of public officers. Regulation 2(4) of the Immigration Regulations provides:-

"Permission given to a person to land in Bong Kong for employment shall be subject to the condition of stay that he shall only take such employment or establish or join in such business as may be approved by the Director."

5. The policy of the Immigration Department with regard to fore foreign domestic workers is set out in an affirmation that was made on the 28th July 1987 by Peggy Dee, an Acting Principal Immigration Officer who is in charge of the Visa Control Division. Before a foreign domestic helper can land in Hong Kong she must have entered into a contract of employment with her prospective employer. The contract and other relevant documents which include a medical certificate and testimonials are required to be submitted to the Immigration Department through the overseas British visa post in the country of the helper's domicile. if the documents are in order, the Immigration Department will authorise the overseas visa post to issue to the helper an employment visa which reads as follows:-

6. Until the 21 April 1987, foreign domestic helpers were normally admitted for the purpose of performing the approved contract of employment for an initial period of six months. Thereafter, extensions of stay were normally granted for further periods of six months provided that the contract of employment was still continuing. The endorsements on the passport would read as follows:-

7. Nevertheless, even after a foreign domestic helper had ceased employment she was permittfed to stay is Hong Kong until the end of the current six month period of stay. The Immigration Department did not consider that by virtue of the termination of the contract of employment that it was necessary to apply to the Governor for curtailment of stay under section 11(6) of the Ordinance whilst unless there had been a breach of condition of stay, it was not the policy to seek a removal order under section 19. Applications to change an employer were normally approved where the contract was terminated during the second year of employment provided that all other conditions of stay had been satisfied. However, they would not normally be approved where the termination occurred during the first year of employment although it has been given in exceptional cases.

8. The reasons that led to the recent change arose as a result of some foreign domestic helpers breaking their contracts during the first six month period in order to take up illegally other part-time or full-time jobs until the period of stay had expired or until they found a new employer. This resulted in complaints by employers who were affected and by local people who were deprived of employment by foreign domestic helpers. The policy was reviewed by the Governor-in-Council on the 24th March 1987 when the Acting Governor acting upon the advice of the Executive Council, ordered that in future foreign domestic helpers landing in Hong Kong or subsequently applying for extensions of stay in Hong Kong would be subject to a new condition of stay whereby if a contract was terminated, the helpers would be allowed to remain in Hong Kong for the remainder of her current six month limit of stay or for two weeks after the termination whichever period was the shorter. However the Director of Immigration has a discretion to adjust the period having regard to the circumstances of each case. In addition a change of employer will not normally be permitted either during the first or second year of the contract except in exceptional circumstances.

9. Since the introduction of the new policy, foreign domestic helpers who arrive in Hong Kong with employment visas have been permitted to remain for six months or two weeks after the termination of the contract whichever is the earlier. The same condition is imposed when an application for extension of stay is granted. The new endorsements that are now made on passports read as follows :-

However as I have said,  in exercising this policy, Immigration Officers are entitled to consider to the facts of any particular case and have in fact granted extensions of stay beyond the two week period following the termination of employment and in some exceptional cases have permitted domestic helpers to change their employers.

10. By a press release dated the 16th April 1987 the Secretary for Security announced details of  the new policy setting out the new conditions of stay whilst the Director of Immigration was interviewed on Radio Hong Kong on the following day when he answered questions about the new policy. On the 21st April 1987, the applicants' solicitors Melville Boase & Co. wrote to the Attorney General seeking an authoritative version of the provisions of the new policy. This letter was referred to the Secretary, for Security but did not result in a written reply to the request that was made. On the 27th April 1987, a delegation of persons including the applicants' solicitor Mr. Boase saw the Secretary for Security. At the meeting, the delegation was provided with a copy of a document which, inter alia, included details of the changes to the conditions of stay that had been made. A letter from Mr. C.K. Yeung of the Immigration Department that was published in the South China Morning Post on the 20th May 1987 drew attention to the fact that if anyone contravened the new policy it would lead to prosecution and removal from Hong Kong. However a press release from the Government Information Services dated the 20th May 1987 stated that the Immigration Department would consider the position of domestic helpers affected by the new policy on an individual case basis.

11. I will now deal with the uncontradicted evidence of the applicants. The first applicant Elvira Vergara entered into a contract of employment with her employer on the 8th December 1985 and was permitted to enter Hong Kong on the 16th March 1986 on the day she commenced her employment. On landing her passport was endorsed by an Immigration Officer which permitted her to remain in Hong Kong for the purposes of her employment for a period of six months. This period after it expired was renewed for a further period of six months and was finally extended in March 1987 until the 16th September 1987. The first applicant claims that her employment was terminated by her employer on the 29th June 1987 but contends that the circumstances which led to the termination were unlawful. She wishes to contest the validity of the termination and to remain in Hong Kong until her claim has been heard. However, no application has been made by the first applicant to the Immigration Department for any extension of stay or change of employment.

12. The second applicant Edita Tolibas entered into a contract of employment with her employer on the 16th November 1985 and was permitted to enter Hong Kong on the 17th April 1986. Her passport was endorsed with a visa permit permitting her to stay for a period of six months for the purposes of her employment.  Subsequent applications for extension of stay were granted and on the 3rd April 1987 permission was granted for her to remain in Hong Kong until the 17th October 1987. However, due to a bereavement in her family, she had to leave Hong Kong on the 11th June 1987 to go to the Philippines and did not return to Hong Kong until the 29th June 1987. On her return, her passport was endorsed with a visa permitting her to remain in Hong Kong until the 17th October 1987 of 2 weeks after the termination of contract whichever date is earlier. Upon her departure on the 11th June 1987, the second applicant's permission to remain here automatically expired under the provisions of S. 11(10) of the Immigration Ordinance so that the endorsement under the new policy applied to her upon her re-entry to Hong Kong. The second applicant says that after she returned, her contract of employment was terminated by her employer as from the 21st June 1987. However, the Immigration Department has not been informed by either the second applicant or her employer that her employment has been terminated.

13. The third applicant Gwenn Arcilla arrived in Hong Kong on the 16th August 1985 and was granted permission to remain for the purpose of working as a domestic helper and has since been given extensions of stay, the last being granted on the 3rd June 1987 when her permission to stay was extended until the 26th December 1987 or 2 weeks after the termination of contract whichever is earlier. She claims that she was dismissed by her employer on the 15th June 1987. She has informed the Immigration Department of her dismissal and has sought their assistance, although she did not specify what assistance she required. Her employer has not notified the Immigration Department of the termination of the contract. On the 21st July 1987 the third applicant put forward reasons s as to why she should be allowed to change her employer on exceptional grounds and was informed to submit particulars in writing so that her case may be considered further. The Immigration Department has said that it is ready and willing to consider the circumstances of her case and remains so.

14. The fourth applicant Nicanora Maglines was granted permission to enter Hong Kong on the 26th August 1986 for the purpose of working as a domestic helper. She was granted an initial period of six months stay which was subsequently renewed until the 26th August 1987. On the 15th June 1987 she informed the Immigration Department that her contract of employment was terminated on the 31st May 1987 and by her letter, she requested an extension of stay to enable her to look for a new employer although her current period of stay is still valid until the 26th August 1987. Her employer also wrote to the Immigration   Department on the 2nd June 1987 confirming the termination of her employment on the 31st May 1987. The Immigration Department has deferred taking action on her letter pending the result of these proceedings.

15. On the application for leave for judicial review under 0.53, r. 3 of the Rules of the Supreme Court, the applicants, inter alia, sought the following relief against the Secretary for Security and/or the Director of Immigration:-

16. However at the hearing of the motion for judicial review, those grounds were abandoned and an application was made on behalf of the applicants to amend the reliefs sought which application was not opposed by the Attorney General. Each applicant now seeks a declaration that she was under no legal obligation to leave Hong Kong after a period of two weeks from the termination of the employment, but had the lawful right to remain in Hong Kong until the expiration of the current period of time that had been endorsed in the passport. The second and third applicants also seek declarations that the endorsement in their passports which relate to the new condition "or two weeks after termination of contract whichever is earlier" is ultra vires the powers given to the Immigration Officers who stamped the passports under the Immigration Ordinance.

17. It is not in dispute that the new policy whether it is right or wrong cannot be challenged by way of judicial review. In a case cited by the Attorney General, Council of Civil Service Unions v. Minister for the Civil Service(1) the role of judicial review was explained by Lord Diplock where he had this to say at pp. 408 and 409:-

"      Judicial review, now regulated by R.S.C. Ord. 53, provides the means by which judicial control of administrative action is exercised. The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the "decision-maker" or else a refusal by him to make a decision.

To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:-

Further on p. 410, Lord Diplock said:-

"    Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under the three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call "illegality," the second "irrationality" and the third procedural impropriety." That is not to say that further development on a case by case basis may not in course of time add further grounds."

18. The only ground that has been raised on behalf of the applicant is illegality upon which Lord Diplock on the same page said:-

"By "illegality" as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable."

19. Mr Litton who appeared for the applicants seeks to impeach the statements made by the Secretary for Security and the Director of Immigration on the grounds that they contained errors of law that threatened their rights and legitimate expectations to remain in Hong Kong. In support of his argument, Mr Litton cited Gillick v. West Norfolk A.H.A. and D.H.S.S.⁽²⁾ where the Department of Health and Social Security in England had given guidance to doctors when they gave advice to girls under the age of 16 about contraception without the knowledge or consent of their parents which if followed, would result in unlawful acts being committed. It was held that the court could correct the error on Judicial review where the advice is erroneous in law. However, that case has no relevance to the facts of the present case. The Director of Immigration and the Secretary for Security were not giving advice but merely announcing a policy with details of the consequences that could result in the event of a breach of a condition for stay. The individual rights of the applicants have not been affected for no steps have been taken to obtain a removal order or to prosecute them for overstaying. Indeed the policy does not operate retrospectively. By overstaying after the termination of their contracts, all the applicants were in breach of the law because their right to stay in Hong Kong was dependent upon the subsistence of the contract of employment. It was purely a matter of discretion that was exercised by the Immigration Department under the old policy that a helper was permitted to remain until the expiration of the current period endorsed in the passport. The circumstances have not changed under the new policy except that the period of stay after termination of the contract is now limited to two weeks or the current period if it was earlier. If a removal order had been wade against any of the applicants or steps had been taken to prosecute them for overstaying, their rights would obviously have been affected which could be the subject of judicial review upon good grounds being shown. However, the statements complained of can in no way be described as errors of law that can be challenged by way of judicial review. The argument based upon this ground is misconceived and must therefore fail.

20. On behalf of the second and third applicants, it has been asserted that the insertion of the visas by the two Immigration Officers amounted to illegal acts and were therefore ultra vires. The argument was based upon the definition of a limit of stay which is defined in S.2 (1) of the Ordinance as follows:-

21. Mr. Litton argued that the chop placed in the passport does not confer a limit of stay as defined under the Ordinance for the date of termination of a contract of employment could be uncertain. The standard form of contract for a domestic helper is initially for a period of two years whilst provisions for termination are set out in clause 12 which where relevant states:-

By the contract of employment, the employer is required to inform the Director of Immigration and the Commisioner for Labour in writing where there has been a termination.

22. In reply to Mr Litton's argument with regard to uncertainty the Attorney General submitted that the court will not construe language as being void for uncertainty if it is capable of solution and referred to Fawcett Properties Ltd. v. Buckingham County Council⁽³⁾ and in particular to a passage from the speech of Lord Cohen at pp. 662 and 663 where he had this to say:-

"        In the present case the words which are alleged to create the uncertainty are not added to restrict the land-owner's enjoyment of his land but to mitigate the severity of the restriction which the respondents are imposing on that enjoyment. It would indeed be unfortunate if these words were now to be held to have the effect of nullifying entirely a restriction which was, in part, at any rate, plainly within the policy of the Act.

I do not find myself driven to this conclusion. In my opinion, in construing a statute or a contract a court should not hold a provision thereof to be void for uncertainty unless it cannot resolve the ambiguity which is said to be contained therein. I am not satisfied that the condition in the present case contains any such insoluble ambiguity."

23. Whilst there may be some difficulty in determining the actual date of termination of a contract of employment, nevertheless after a proper investigation of the facts, the date is quite easily ascertainable. In any event, it would not be longer than one month after notice had been given on either side. I am therefore of the opinion that any difficulty that might arise would not be insuperable with the result that I reject the argument that has been put forward on behalf of the second and third applicants. The Immigration Officers when they  placed the chops on the two passports, were exercising   their powers under directions given to them by the Director of Immigration under S. 52 of the Ordinance who in turn received his directions from the Acting Governor under S. 51 of the Ordinance. It is abundantly clear that they were not acting illegally.

24. Certain parallels can be drawn between the facts of the instant case and those of Schmidt and Another v. Secretary of State for Home Affairs⁽⁴⁾ which was cited to me by the Attorney General. In that case the plaintiffs who were alien students had been given leave initially to enter the United Kingdom before July 1968 for a period of one month. The periods were subsequently extended ,but further applications for extension were later rejected by the Home Secretary. A writ was issued claiming declarations that the decision not to consider further similar applications for extension of stay was unlawful, void and of no effect and that the defendant was bound to consider such applications on their merits and in accordance with the  principles of natural justice. It was held by the Court of Appeal that an alien had no right at common law to enter the United Kingdom except by leave of the Crown which could be refused without giving any reason. The writ was struck out as an abuse of the process of the court. Nevertheless the court considered that if a permit was revoked, but before the time limit had expired, that an opportunity should be given for making representations as he could have a legitimate expectation for remaining for the permitted period.

25. The applicants in this case are aliens and have no right to enter Hong Kong except under the provisions of S.11 of the Ordinance. The right of the applicants to enter Hong Kong depends upon the contract of employment which is fundamental to their right to remain. Once the employment ceases, the applicants have no right to remain in Hong Kong .The new policy  that introduced the alternative period of two weeks from the date of termination of the contract is part of the overall policy adopted by the Government to control the entry of all foreign domestic workers. I am told that the present number of such workers has reached a figure of over 30,000. It was against this background that the new policy was approved by the Executive Council to take into account the influx of foreign domestic workers and the increasing number of contracts that have been broken by domestic helpers.

26. There has been no suggestion that the new policy was introduced for an unlawful purpose of for any ulterior motive while it is clear that the Director of Immigration does not apply the law rigidly to all cases, but exercises his  discretion having regard to the special circumstances of any particular individual. Representations can in fact be made to the Director of Immigration for an extension of stay while consideration will be given to an application to a change of employer,. However, it cannot he said that the applicants had any legitimate expectation to remain in Hong Kong for any period beyond the expiration of their employment. Although the Immigration Department did not enforce the old policy strictly after a contract terminated and a worker could expect to remain until the end of the current period endorsed in her passport provided that no other conditions apart from the condition of stay had been breached, that policy could be changed at any time. The effect of the new policy is to enlarge the period of stay to two weeks after the termination of the contract unless the period of stay that has been granted is earlier.

27. The case advanced by the applicants at the hearing bore little resemblance to that which was argued upon the application for leave. As I have said the rights of the applicants have not been affected so as to entitle them to a remedy by way of judicial review. Although it has been conceded that the policy decision cannot be challenged upon judicial review, in reality that was what this application was all about. A close examination of the facts and a proper understanding of the policy would have revealed that none of the applicants had any hope of success.

28. In the result the motion for judicial review will be dismissed.

(1)    [1985] 1 A.C. 374

(2)    [19861 1 A. C. 112

(3)    [1961] 1 A. C. 636

(4)    [1969] 2 Ch 149

Representation:

Mr. H. D. Litton, Q.C., Mr. H. Merry and Mr. J. Mok (Melville Boase & Co.) for the Applicants.

Mr. M.D. Thomas Q.C., Attorney General and Mr. B.W.K. Whaley for the Respondent.