Elvira Vergara and Others v. Attorney General
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1. This is an appeal from the judgment of Jones, J., delivered on 17th August, 1987 whereby he dismissed the applicants’ substantive application for judicial review with costs.
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IN THE COURT OF APPEAL 1987 No.120
_____________________ BETWEEN:
Before: Roberts C.J. Silke, V.P. & Addison J. Dates of Hearing: 17th, 18th, 21st September, 1987 Date of Judgment: 14th October, 1987. _____________________ J U D G MEN T _____________________ Roberts, C.J. - 1. This is an appeal from the judgment of Jones, J., delivered on 17th August, 1987 whereby he dismissed the applicants’ substantive application for judicial review with costs. 2. At the outset of the hearing before Jones, J., the applicants had sought two declarations and two orders of mandamus. 3. During the hearing of the motion for judicial review, however, those grounds were abandoned and the other reliefs sought were substituted, this application not being opposed by the Attorney General. 4. Each of the four applicants thereafter sought a declaration that she was under no legal obligation to leave Hong Kong after a period of two weeks from the termination of her employment but had a lawful right to remain until the expiration of the current limit of stay endorsed in her passport. 5. The second and third applicants also sought declarations that the endorsement in their passports limiting their stay to six months “or two weeks after termination of contract, whichever is earlier” is ultra vires the powers conferred on immigration officers by the Immigration Ordinance (" Cap. 115" ) ., Factual Background 6. All four applicants are Philippine nationals, with no right to land in Hong Kong. Their entry is therefore regulated by the Immigration Ordinance. 7. The personal circumstances of the applicants, all of whom were admitted as “foreign domestic helpers" can be summarized as follows - 8. The first applicant, Elvira, Vergara (“A.1”) , was permitted to enter Hong Kong on 16th March, 1986 to undertake employment. Her passport was endorsed by an immigration officer with permission to remain in Hong Kong for the purposes of her employment for a period of six months. Her period of stay was extended on two further occasions, the last extension, on 12th March, 1987 , permitting her stay until 16th September, 1987. 9. A.1's employment was terminated by her employer on 29th June, 1987, in circumstances which she alleges were unlawful. She wished to contest the validity of the termination of her contract and to remain in Hong Kong until her claim had been dealt with. She has, however, made no application to the Immigration Department for any extension of stay or change of employment. 10. The second applicant, Edita Tolibas (“A.2"), was permitted to enter Hong Kong on 17th April, 1986, for the purposes of employment. Her passport was endorsed with a limit of stay permitting her to remain for six months for the purposes of her employment. Her period of stay was subsequently extended, the last occasion being on 3rd April, 1987, when permission was granted for her to remain until 17th October, 1987. 11. However, she left Hong Kong on 11th June to go to the Philippines and returned to Hong Kong on 29th June, 1987. On her return, her passport was endorsed with a limit of stay, permitting her to remain in Hong Kong until 17th October, 1987, or “two weeks after the termination of contract, whichever date is earlier". 12. A.2 alleges that, when she returned, she discovered that her contract of employment had been terminated by her employer on 21st June. The Immigration Department has received no official notification of this either from A.2 or from A.2's employer. 13. The third applicant, Gwenn Arcilla ("A.3") was granted permission to enter Hong Kong for the purposes of employment on..16 August, 1985. 14. She has been granted extensions of stay, the last, on 3rd June, 1987, extending her stay until 26th December, 1987, or “two weeks after the termination of contract, whichever is earlier.” 15. A.3 claims that she was dismissed by her employer on 15th June, 1987. She so informed the Immigration Department and sought its assistance. On 21st July, A.3 put forward reasons as to why she should be allowed to change her employer on exceptional grounds and was asked to submit particulars so that her case could be considered. 16. The fourth applicant, Nicanora Maglines (“A.4”), was granted permission to enter Hong Kong on 26 August, 1986 for the purpose of employment. She was granted an initial period of stay of six months, which was extended, on 9th February, 1987, until the 27 August, 1987. 17. On 15th June, 1987, A.4 informed the Immigration Department that her contract of employment had been terminated on 31st May, 1987, and asked for an extension of stay to enable her to look for a new employer. Passport Endorsements 18. The administration of the Immigration Ordinance, in relation to foreign domestic helpers, was described in an affidavit, sworn on 28th July, 1987, by Miss Peggy Dee, Acting Principal Immigration Officer in charge of the Visa Control Division of the Immigration Department. 19. Before a foreign domestic helper (“FDH”) is permitted to land in Hong Kong, she must have entered a contract of employment with her prospective Hong Kong employer. 20. The appropriate overseas visa post will issue to the FDH an employment visa containing the following -
21. On arrival in Hong Kong, before 21st April, 1987, a FDH was normally admitted for an initial period of six months. Thereafter, extensions of stay for further periods of six months were usually granted, provided that the contract of employment was still continuing. 22. Endorsements on the passport of a FDH would state, on arrival -
23. When an extension of stay was granted the endorsement would read –
24. The above endorsements appear on the passports of A.1 and A.4. 25. By practice, however, a FDH who had ceased to be employed, was permitted to remain in Hong Kong until the end of the period of validity of her current limit of stay and the Immigration Department did not apply to the Governor for a curtailment of the stay of a FDH under section 11(6) of Cap.115, unless there had been a breach of some other condition of stay, e.g. if the FDH had taken other employment not authorized by the Director. 26. An application by a FDH for approval to a change of employment was normally granted if the earlier contract was terminated during the second year of employment, but refused if termination occurred during the first year. 27. However, in April 1987 the Governor directed that, in future, a FDH, whether entering Hong Kong for the first time or applying for an extension of stay, would be subject to a new condition of stay whereby, if her contract of employment is terminated, the FDH would be allowed to remain in Hong Kong for the remainder of her current six months’ limit of stay or for two weeks after the termination of her contract, whichever was the earlier (“the two weeks rule"). 28. Since 21st April, 1987, in furtherance of this policy, every FDH who arrives in Hong Kong for employment, or who applies for an extension of stay, had the following endorsements on her passport -
29. In giving effect to these conditions, immigration officers are nevertheless entitled to consider the facts of each individual case and have granted a number of extensions of stay beyond the two week period following the termination of employment and, in a few cases, have permitted a FDH to change her employer. Points at issue 30. There appear to me to be two main points for decision -
Provisions of the Immigration Ordinance (Cap. 115) 31. It is not in dispute that each of the applicants is a person who, by virtue of section 7 of Cap.115, may not land in Hong Kong without the permission of an immigration officer or immigration assistant. 32. The principal section dealing with the granting of permission to land and with the imposition of conditions of stay is section 11 of Cap. 115, which is hereunder set out in full –
33. Other provisions of the Ordinance which appear to be relevant to this appeal are sections 51 and 52. Section 51 empowers the Governor to give directions to any public officer with respect to the exercise or performance by him of his functions, powers or duties under this Ordinance. 34. It was presumably under this section that the Governor acted when instructing the Director of Immigration to give effect to the new policy decided upon in March 1987 by the Governor in Council. 35. Section 52 of Cap. 115 empowers the Director of Immigration, in his turn, to give directions to immigration officers and immigration assistants with respect to the exercise or performance by them of any of their powers functions or duties under the Ordinance. 36. I also note that regulation 2(4) of the Immigration Regulations provides -
Excess of Powers (A.2 and A.31) 37. It is not in dispute that the change of policy decided upon by the Governor in Council is not open to challenge in the courts. This is made clear by the Council of Civil Service Unions v. The Minister for the Civil Service(1). 38. The first argument advanced on behalf of A.2 and A.3, however, was that the insertion of the new condition (the two weeks' rule) into the conditions of stay of a FDH was in excess of the powers conferred upon immigration officers by law and that, if a limit of stay of six months is imposed, the FDH has a right to remain in Hong Kong for the whole of that period, so long as she does not contravene any of her conditions of stay. 39. It is said, in support of this proposition, that a limit of stay is subject to curtailment only by the Governor, under section 11(6) and not by the Director, though the latter can remove a FDH under section 19(1)(b)(ii) if he is satisfied that she has contravened a condition of stay. 40. This submission would have force if the Director, having imposed a six month period of stay on a FDH on entry, had later sought to curtail it by the imposition of a new condition. It is clear from section 11(5A)(c) that he can enlarge the period of stay in such circumstances, but cannot reduce it. 41. In case of A.2 and A.3, however, the conditions of stay to which objection is taken were imposed at the time of the renewal of the FDH’s permission to stay in Hong Kong. 42. Section 11(2) is in wide terms, enabling an immigration officer to impose a limit of stay, without restricting this power in any way. I can see no excess of his lawful powers by an immigration officer if he imposes what may be described as a double limit of stay, permitting a FDH to remain for six months, or for a shorter period if a specified event occurs. 43. An alternative argument was advanced that the imposition of the two weeks' rule as part of a limit of stay was ultra vires, because the date of termination of a contract of employment cannot be fixed with certainty and thus the operation of the limit of stay would itseIf be uncertain. 44. In the great majority of cases, the ascertainment of the date of termination of a contract will surely cause little difficulty. The contract will usually end when the employer discharges the FDH, with or without a month’s notice, or the FDH walks out or the period of the contract ends. 45. There will, no doubt, be very few cases in which the exact date of termination will be difficult to decide. But even then, the date is ascertainable. 46. In cases of doubt, if a FDH were to be prosecuted under section 41 of Cap.115 for a breach of condition of stay, it would be for the prosecution to establish that the FDH had remained for more than 14 days after the termination, which necessarily involves establishing when the termination was. The previous conditions of stay (A.1 and A.4) 47. I turn to consider the applications of A.1 and A.4, who were granted extensions of stay which did not, since they were given before 21st April, 1987, contain the two weeks’ rule. They were subject to the following conditions of stay –
48. It was argued that, by reason of this wording, A.1 and A.4 were entitled to remain until the expiry of the extension period, even if the employment for the purpose of which they were given permission to remain in Hong Kong, terminates before the end of that period. 49. It seems clear, though in some respects the public statements made by officers of the Security branch and of the Immigration Department have not been consistent, that the practice of the Director of Immigration, before April 1987) was to take no action against a FDH, whose contract was terminated during her six months’ stay. 50. In one statement, the Director was reported to have described them as here “legally") though counsel for the respondent did not so concede. 51. What the Director and other government officials may have said as to the status of a FDH in those circumstances is not, however, of relevance to us, since it has not been argued, by either party to the appeal, that any “legitimate expectation” could have arisen on the part of A.1 and A.4, so as to confer upon them any rights by virtue of that principle. 52. We must therefore deal with the appeals of A.1 and A.4 on the narrower ground of whether the conditions of stay imposed upon them were in terms which in law terminated their right to remain in Hong Kong after their contracts of service were terminated. 53. It is necessary to emphasize the background to these applications. A FDH enters a contract, while still abroad, to work for a stated period for a Hong Kong employer. At the visa station in her country of origin her passport will be stamped with the name of her employer, the reference number of her contract, a limit of stay of six months and a warning that a change of employer is not permitted. 54. When the FDH arrives in Hong Kong, therefore, she cannot be under any possible misapprehension as to the purpose for which she is being permitted to enter, namely for employment with a named employer and for no other reasons. 55. The passports of A.1 and A.4 received, on first arrival, a simple endorsement, saying -
56. The employer was not mentioned by name, as he was on the extension of stay later granted to each of them. 57. It was argued their on behalf that A.1 and A.4 were entitled, if their contracts of employment ended within the six month period, to remain (“to lie on the beach” in the picturesque language of their counsel) until its expiry, so long as they did not breach any other conditions of stay; and that this right could be curtailed only by the Governor, under section 11(6). 58. I have already found, above, that it is within the power of an immigration officer to impose a “double limit of stay" which permits a FDH to stay either for a maximum period or for a lesser period on the happening of an event. 59. The extension granted to A.1 and A.4, however, made no specific mention of a lesser period than six months, as that of A.2 and A.3 did, so that it would be difficult to argue that there was any limit of stay apart from the period of six months. 60. The respondent, however, urges us to read into the wording of A.1 and A.4's extension an inference that the six months' stay was conditional upon the continuance of the FDH's employment by the named employer. 61. In view of the wording of the extension, I am satisfied both that the FDH must have known that she was admitted for that purpose; only and that this was the intention of the Director. I am also persuaded that the wording did achieve that effect, so that, on leaving her employment, the FDH had broken a condition of her stay and thus had no right to remain until the end of the six month period. 62. The consequence of this line of reasoning is that if a FDH were obliged, by gross maltreatment by her employer, to leave her employment, she would, if she continued to remain in Hong Kong without permission, be guilty of a breach of condition and so liable to prosecution and removal for such breach. 63. This is a harsh result in theory, though there is no reason to suppose that it has ever occurred in practice. Indeed, we were assured by counsel for the respondent that, while it is not conceded for the purposes of this appeal that A.1 and A.4, and others in a similar situation to them, have a right to remain in Hong Kong during the period between the termination of a contract and the end of a six month period, no action has been taken, nor will be, to secure their prosecution or removal unless they are guilty of some other breach of condition of stay in addition to that which arises by virtue of the termination of the contract. 64. I would, therefore, refuse the declarations sought by all applicants and dismiss the appeals. Silke, VP 65. I am in agreement with the conclusions reached by my Lord, the Chief Justice. 66. My Lord has set out the facts with such clarity that they need no repetition from me. 67. It is important to remember those matters which do not lie for our consideration. 68. We are not asked to consider the action of the Director of Immigration who, in the knowledge that the employment contract with a named employer was for a two-year period, imposed a limit of stay of six months on first entry renewable in six months – “the old policy”. 69. We are not asked to consider any “legitimate expectation” which might have arisen in the hearts of those who were recipients of the six-month limit of stay should this go beyond the subsistence of their employment. 70. We are not asked and would have no jurisdiction to consider the decision of Executive Council that the new ruling should be that stay is limited to, should the employment cease, the remainder of the six-month period or to two weeks whichever is the earlier – “the two-week rule”. 71. We are not asked to consider any direct action, there being none, taken by the Director, and subsequent to the ending of their employment, in respect of any of the Applicants. 72. I speak generally in the context of the absence of any breach of the employment conditions impose by the Immigration Ordinance, Cap.115 – “the Ordinance” 73. A cardinal principle and one which, in my judgment, goes directly to the exercise of our undoubted discretion is contained in the words of Lord Scarman in Reg. v. Home Secretary Ex parte Khawaja [1], where the issue of whether habeas corpus was limited to British nationals was considered. Lord Scarman said -
74. It is, in the case of A2 and A3, the implementation of the implementation of the “two-week rule” policy that Mr. Litton calls into question. He suggests that that which was done cannot be done on a true construction of the Immigration Ordinance. The terms as endorsed are, in any event, too vague and ambiguous to permit of their being upheld by the courts. 75. As to A1 and A4 they seek to protect their future rights - the six-month period in each case having now expired - and ask for a declaration of what those rights are. Mr. Litton prays in aid the provisions of O.15 r.16 and O.53. 76. Had I been minded to grant the declarations they sought I would not have been inhibited in so doing by the fact, in the circumstances here, that such declaration would affect their future rather than their present status. See Lord Diplock's speech in Gouriet v. U.P.W.[2] 77. On the construction issue, Mr. Litton contends that as “limit of stay" is defined as meaning:
then where s.11(2)(a) permits the imposition of a limit of' stay the “such other conditions of stay” as referred to in s.11(2)(b) must be in contradistinction to the “limit of stay" which in turn means a specific “period” during which a person may remain. If you get six months then you can stay for six months. 78. I am not prepared to construe the legislation and, in particular, its use of the word "period" in so narrow a manner. As we have been told the Ordinance is drafted tightly and with clarity. Other conditions of stay - and it is stay which is paramount - can in my view be imposed in addition to rather than in isolation from the period of the limit of stay. 79. Those who enter Hong Kong for the sole purpose of employment cannot turn themselves into "visitors” to whom different considerations apply, once that employment ceases, whatever their “limit" or “conditions of stay” may be - both are conditional upon that employment. 80. If the Director were to act towards such a person unfairly, capaciously or in breach of natural justice then recourse could be had to the courts. As I have said this does not apply here. 81. The issue of ambiguity rests on the, perhaps unfortunate, use of the word "contract" in the endorsement. Mr. Litton seeks to draw a distinction as between the ending of the physical employment and the ending of the contract for it which may give rise to contractual liabilities capable of enforcement. He contends that, while an employee might find himself out of a job, he could still have exercisable rights under the contract upon which the court might find in his favour. In those circumstances the contract might not terminate until the courts have pronounced upon it therefore the endorsement is incapable of the clarity of definition which is required of a matter affecting the essential rights of an individual. 82. Pearson L.J. in Hall & Co. Ltd. v.Shoreham-by-Sea Urban District Council and another[3] at p.258 said:
83. The reality is that once employment ceases so does the pay. The employee knows. If it is thought necessary to mount proceedings for breach of contract and that initiation is improperly prevented by the Director in the exercise of his powers under the Ordinance then again recourse can be had to the courts . 84. I accept the difficulty raised by Mr. Litton of the FDH’s inability to mitigate but I do not view the use of the word “contract” as rendering the condition void for uncertainty. 85. Clear and correct guidelines should have been set out at the outset by the public officers concerned in the matter before us. Had they been I, for one, doubt if these proceedings would ever have been brought. That this was not done is a matter for regret – and arouses sympathy for those affected – but this factor alone does not entitle the Applicants to the declarations they seek. 86. I too would dismiss the appeals. Addison, J. 87. I agree with the conclusions reached by my Lord President and by my Lord Vice- President and their reasons therefore and would add only the following. 88. In my opinion these applications by way of judicial review are, on the facts of each case, premature inasmuch as no applicant has suffered any prejudice or infringement or threatened infringement of a subsisting or future legal right. As I see it what the applicants seek here is to invoke the jurisdiction of the court to declare the law generally or to give an advisory opinion, which Lord Diplock in Gouriet v. Union of Post Office Workers(1) said could not be done. 89. With regard to the arguments raised on behalf of the 1st and 4th Applicants it is clear that the power of an immigration officer under section 11(2)(b) to impose a condition of stay carries with it the legal power effectually to determine the limit of stay upon the occurrence of an event which constitutes a breach of the condition. This follows, I think, from the wording of section 11(3) of the Ordinance. 90. Looking at the Ordinance a including the Regulations it is clear that just a person given leave to enter as a visitor may not take up employment so the converse applies. Regulation 4 provides:
91. The status of a visitor is entirely distinct from that of a person who enters under an employment visa. An invitation to dinner does not include an invitation to stay for breakfast. 92. In my opinion it is not realistic to divorce a limit of stay from a condition of stay and from there go on to argue that upon breach of a condition of stay there still subsists a right to remain under a limit of stay. It seems to me that it is only in relation to the mechanics of enforcement of the immigration policy as a whole that the legislation has been drawn in such a way as to present section 11(2)(a) separately from section 11(2)(b). This method of statutory presentation confers no right to remain upon breach of a condition of st.ay, under a supposed continuance of a separate and distinct limit of stay. I too would dismiss these applications. H. Litton, QC, with J. Mok (Melville Boase & Co.) for Appellants B.W.K. Whaley, Senior Crown Counsel, with Miss G. Kwong, Crown Counsel, for the Respondent/Attorney General (1) [1985] 1 A.C. 374 [1] [1984] 1 A.C. 74 at 111 [2] [1978] A.C. 435 at 501 F-G [3] [1964] 1 W.L.R. 240 (1) [1978] A.C. 435, 501 |