Aguilar Joenalyn Elmedorial v. Director of Immigration
Read the full judgment text of CACV 225/2012 on BabelCite. This Court of Appeal judgment was delivered on 11 January 2013 before Hon Kwan JA, Fok JA and Barma JA.
Administrative law – judicial review – immigration – foreign domestic helper (FDH) – employment visa – refusal based on criminal conviction – Dutiable Commodities Ordinance (Cap 109) ss 17(1) and 46(3) – strict liability offence – 600 cigarettes purchased for employer – fine of $800 paid by employer – expiry of employment contract with Mr Meyer – application to work for new employer Mr Graham refused by Director of Immigration on 9 March 2011 – judicial review dismissed by Au J on 17 May 2012 – appeal to Court of Appeal – Whether the Director misapplied the relevant policy for the approval of employment of foreign domestic helpers in treating the appellant's conviction as a 'known record to the detriment' of the appellant within the meaning of the Guidebook, Quick Guide and Immigration Guidelines – Held: the policy, construed as a whole, requires a prospective helper to be of 'clear criminal record' as part of the normal immigration requirements, and that requirement is of generality and is not limited to immigration or labour law offences; the Judge below was correct in his construction – Whether the decision was vitiated by pre-determination and apparent bias on the part of Mr Ma, the interviewing Immigration Officer, who allegedly made prejudicial statements and refused to consider the 1 March 2011 letter from Helpers for Domestic Helpers – Held: the actual decision-maker was Mr Wong Wing Yin, Senior Immigration Officer, not Mr Ma; Mr Wong considered the file minute and the supporting representations independently and endorsed the recommendation; Porter v Magill [2002] 2 AC 357 distinguishable on its facts – Whether the decision was Wednesbury unreasonable or failed to take into account relevant considerations, including the extenuating circumstances of the conviction and the representations made by Helpers for Domestic Helpers – Held: Mr Wong's uncontested affirmation established that he took those matters into account; the threshold for judicial intervention in the Director's exercise of discretion in immigration matters is high; the decision was one properly open to the Director – Appeal dismissed with costs to the respondent; appellant being legally aided, her own costs to be taxed in accordance with the Legal Aid Regulations.
Legal issues: Whether the Director misapplied the FDH policy by treating a strict-liability conviction as a 'known record to the detriment' · Whether the decision was vitiated by pre-determination or apparent bias on the part of Mr Ma · Whether the decision was Wednesbury unreasonable or failed to take into account relevant considerations
Outcome: Appeal dismissed with costs to the respondent.
Cited by 2 cases · Cites 5 cases
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CACV 225/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 225 OF 2012 (ON APPEAL FROM HCAL NO. 40 OF 2011) ________________________ BETWEEN
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________________________ REASONS FOR JUDGMENT ________________________ Hon Kwan JA: 1.I agree with the Reasons for Judgment of Fok JA. Hon Fok JA: Introduction 2.The appellant, a Philippine national, came to work in Hong Kong as a domestic helper on 10 November 2000. Her last employment contract came to an end on 14 February 2011 but she found another employer who was willing to employ her under a new contract. 3.However, she had been convicted of a criminal offence on 8 February 2011 and, because of this, her application to the Director of Immigration for permission to work as a domestic helper in Hong Kong was refused on 9 March 2011. 4.She applied for judicial review to quash that decision and, by his judgment dated 17 May 2012, Au J dismissed that application. This was her appeal from that judgment. 5.At the conclusion of the hearing, we dismissed the appeal with costs to the respondent and indicated we would hand down our reasons for doing so in due course, which we now do. The background facts 6.The appellant first worked as a foreign domestic helper for a Mr Chau under an employment contract which commenced on 10 November 2000. She then worked for a second employer, a Mr Meyer, under four consecutive contracts of employment, the last of which was entered into in January 2009 and expired on 14 February 2011. 7.The appellant’s case is that Mr Meyer instructed her to buy 600 cigarettes for him from a stall in Wanchai. She bought the cigarettes on 31 January 2011 and paid for them from money Mr Meyer had previously transferred to her for shopping money. After she left the stall, the appellant was arrested by Customs and Excise officers. She was subsequently charged with and, on 8 February 2011, on her plea of guilty, she was convicted of one charge of possession of goods to which the Dutiable Commodities Ordinance (Cap. 109) applies, contrary to ss. 17(1) and 46(3) of that ordinance. It is not in dispute that this is a strict liability offence. The appellant was fined $800 for the offence and her unchallenged evidence is that Mr Meyer paid the fine for her. 8.The appellant’s employment contract with Mr Meyer expired shortly after this, on 14 February 2011, and he did not renew her contract. She was offered a new contract of employment by a Mr Graham and so, on 28 February 2011, she approached the Immigration Department to apply for an employment visa to take up employment with him. She was interviewed on that date by Mr Ma Wing Sum, an Immigration Officer. There is a dispute as to what Mr Ma said to the appellant but the upshot of the interview was that the appellant did not proceed with her application. 9.Later the same day, the appellant again approached the Immigration Department to seek an extension of stay in order to consider her position. The extension of stay was granted and she was given permission to stay in Hong Kong as a visitor until 14 March 2011. 10.On 9 March 2011, the appellant re-submitted an application for an employment visa in order to work for Mr Graham. She was accompanied on this occasion by a Ms Wong of the recruitment agency assisting Mr Graham. She was also in possession of a letter dated 1 March 2011 from an organisation known as Helpers for Domestic Helpers making representations on her behalf and, in particular, as to the circumstances leading to the commission of the offence for which she was convicted. As on the previous occasion, the appellant’s case was handled by Mr Ma. Again, there is a dispute as to what Mr Ma said to the appellant but the upshot of this interview was that the appellant submitted an application for an employment visa. 11.Following this, the appellant was given a letter dated 9 March 2011 and signed by Mr Ma on behalf of the Director of Immigration refusing the application. It is that decision which forms the target of the judicial review application. There is a dispute as to whether the letter dated 1 March 2011 from Helpers for Domestic Helpers was submitted by the appellant to Mr Ma before or after the decision letter was issued to her. 12.On 10 March 2011, a second letter from Helpers for Domestic Helpers was sent to the Immigration Department making further representations on behalf of the appellant and seeking to persuade the Director to approve the application for an employment visa. Following receipt of this letter, Mr Ma telephoned the appellant. There is a dispute as to the content of that conversation. 13.On 14 March 2011, the appellant, this time accompanied by a representative of the solicitors acting for her in this matter, attended at the Immigration Department to seek an extension of stay in order for her to apply for judicial review of the decision refusing her employment visa. Once again, Mr Ma interviewed the appellant (and the content of the interview is again disputed) but, since the application was for an extension of stay rather than for reconsideration of her application for permission to work in Hong Kong, the appellant’s application was then dealt with by the Extension Sub-section who approved the extension of stay application. 14.The appellant applied for leave to apply for judicial review on 14 June 2011, which was granted by Au J on the papers on 20 June 2011. The issues on appeal 15.Mr Timothy Parker, counsel for the appellant, advanced three grounds in support of the appeal. 16.First, he contended that the Director misapplied the relevant policy for the grant of permission to work as a foreign domestic helper in Hong Kong in taking the view that the appellant’s conviction was a relevant record to her detriment within the meaning of the policy. Mr Parker submitted that the Judge erred in holding to the contrary. 17.Secondly, it was contended on behalf of the appellant that the decision under challenge was vitiated by pre-determination and apparent bias and that the Judge was wrong to reject these arguments. 18.Thirdly, it was contended that, in making the decision, the Director failed to take into account relevant considerations, or alternatively, was irrational in the Wednesbury sense[1] and that the Judge erred in concluding otherwise. Whether there was misapplication of the relevant policy 19.It is common ground that the Director’s policy for the approval of employment of foreign domestic helpers is to be found in three documents, namely (i) the Guidebook for the Employment of Domestic Helpers from Abroad (the Guidebook), (ii) the Quick Guide for the Employment of Domestic Helpers from Abroad (the Quick Guide), and (iii) the Immigration Guidelines for Entry to the Hong Kong Special Administrative Region of the People’s Republic of China (the Guidelines). 20.The Guidebook specifies the eligibility criteria for employers who wish to employ helpers, one of which (at section II para. 2(h)) is expressed as follows:
This is reflected in the eligibility criteria set out in para. 1(i) of section I of the Quick Guide which states:
It is also reflected in para. 26(b) of the Guidelines which states:
21.This, of course, begs the question of what sort of record might be one which is to the detriment of the helper. To answer this question, the appellant relies on para. 6 of section IV of the Guidebook which states:
She also relies on para. 15 of section VI of the Quick Guide which states:
22.It was, therefore, the appellant’s case that, on a proper construction on the policy, the offence of which she was convicted does not constitute a relevant record to her detriment and that, instead, only an offence contrary to immigration laws can constitute such a record. 23.The Judge rejected this argument because, he held, it is necessary to construe the meaning of para. 6 of the Guidebook as a whole and that doing so required one to read also para. 3 of the Guidebook which provides:
24.The Judge therefore held:
25.On behalf of the appellant, Mr Parker submitted that the Judge’s reasoning was flawed in that he conflated two quite separate limbs, namely the “meets normal immigration requirements” limb and the “no record to the detriment” limb. He submitted that, whilst para. 6 of the Guidebook referred back to the normal immigration requirements, para. 15 of the Quick Guide did not refer back to these and referred only to breach of the employment contract or offences under immigration laws or labour laws. He also submitted that the Judge’s construction renders para. 6(a) of the Guidebook (see above) otiose as well as the following words of para. 15 of the Quick Guide, namely:
26.I do not agree that the Judge’s reasoning in this regard was flawed as contended by the appellant. I see no basis for construing the relevant documents containing the policy as limiting the eligibility requirements for a prospective employee to criminal records relating only to breaches of immigration or labour laws. The reference to “no known record to the detriment of the employer and the Helper” in para. 2(h) of section II of the Guidebook and in para. 1(i) of section I of the Quick Guide is a reference, in the context of the eligibility criteria, to an attribute of both the employer and the helper. The latter’s position, for the purposes of the general eligibility requirements, is also addressed in para. 3 of section II of the Guidebook and para. 2 of section I of the Quick Guide. In both those latter paragraphs, it is quite clear that the prospective employee is subject to the “normal immigration requirements” of being “of clear criminal record”. It would be odd, to say the least, to speak of the helper having to have a “clear criminal record” if by that it were meant that it was acceptable for a helper to have a conviction for a non-immigration or non-labour law offence. The requirement of a clear criminal record is, in my view, a requirement of generality and in no way specifically tied to breaches of immigration or labour laws. 27.I do not think the appellant’s case is supported by the reference to the question and answer at para. 14 in the General Guide to the Helper published by the Immigration Department. It was submitted by Mr Parker that this showed that a conviction for a criminal offence might result in a removal order being made but was not otherwise relevant. Apart from the fact that this was not one of the three documents in which the policy is contained, I do not accept that this follows: that question and answer is, in my view, to be read as expressing in general terms the proposition – consistent with the policy as construed by the Judge – that a helper found to have breached her condition of stay or violated the laws of Hong Kong will not be allowed to work here as a domestic helper. 28.In her skeleton submissions, Ms Grace Chow, counsel for the Director, referred to para. 55(c) of the Guidelines which sets out one of the prerequisites under the Quality Migrant Admission Scheme as being that “the applicant must have no criminal or adverse immigration record in Hong Kong or elsewhere”. The distinction, in para. 55(c), between criminal record and adverse immigration record is clear and express but that distinction supports, in my view, the conclusion that reference to a criminal record in the Guidebook and Quick Guide should similarly be read as relating to a record of any criminal conviction and should not be limited to breaches of immigration or labour laws. 29.If it had been intended to restrict the relevant “known record” in relation to the general eligibility requirements to breaches of immigration or labour laws, sections II and I of the Guidebook and Quick Guide respectively could have simply used language that reflected the later provisions in sections IV and VI respectively. Instead, as I have noted, para. 6 of section IV of the Guidebook, for example, expressly refers to the helper meeting normal immigration requirements in addition to not having the specific types of “offences/breaches” identified. Those normal immigration requirements expressly include the attribute of being “of clear criminal record”. That attribute is expressed in general terms and there is nothing to suggest that it means anything other than that the helper has no criminal conviction of any sort. 30.As regards para. 2(h) of section II of the Guidebook, Ms Chow made the further point that, in context, the “no known record” requirement expands upon the requirement that there is no doubt about the bona fides of the employer and helper. She submitted, and I agree, that it cannot seriously be contended that having a criminal record would not cast doubt on a person’s bona fides whereas breach of labour or immigration laws would. This further supports the Judge’s conclusions as to the proper construction of the policy. 31.So far as Mr Parker’s argument that this reading of the policy would render para. 6(a) of the Guidebook and para. 15 of the Quick Guide otiose, those provisions expressly relate to specific matters that are taken into account in relation to any future application by the employer or helper and do not affect the general eligibility requirements which apply in any event. Furthermore, they are not rendered otiose in any event because the words in question relate to offences under immigration laws which may not have resulted in any criminal conviction and to breaches of contract or undertaking which would likewise not result in a criminal conviction. 32.Finally, Mr Parker relied on the position adopted by the Director in the case of Maria Isabel D. Terrado v Director of Immigration, unrep., CACV 92/2006, 3 August 2006. It is apparent (from the extract of the letter at (b) quoted in §9 of the judgment in that case) that the Director expressed one of the reasons for not granting an extension of stay to the applicant in that case as being the “[l]ack of strong extenuating grounds that could justify deviation from our existing policy that we would not normally extend the stay of a FDH who has been convicted of breach of conditions of stay by taking up unapproved work/employment in HK”. I do not think that decision helps the appellant here. The passage quoted is not a statement of the policy which is the subject of this appeal or, if it purports to be, it is not a complete statement of it. Whether the decision was vitiated by pre-determination or apparent bias 33.The basis of this ground of challenge to the decision is the appellant’s contention that “[t]he conduct of the decision-maker, [Mr] Ma, … failed to satisfy the dictates of procedural fairness and/or breached the rules of natural justice”.[2] 34.In particular, the appellant complains that, on her first visit to the Immigration Department on 28 February 2011, Mr Ma, having been provided only with the basic documents necessary for the application, stated to her: “you have a criminal record; I am not going to process your documents.” 35.Then, on the appellant’s (third) visit to the Immigration Department, on 9 March 2011, it is alleged that Mr Ma refused to look at the letter from Helpers for Domestic Helpers dated 1 March 2011 and said to her: “I don’t need any documents … Whatever documents you give, I will only file.” This allegation forms the basis for the appellant’s contention that Mr Ma, as the decision-maker, did not afford her the opportunity to make the representations contained in that letter before the decision to refuse her application was made. 36.In addition to this contention, the appellant’s case is that an inference of actual bias on the part of Mr Ma is warranted on the basis of the following conduct, namely: his repeated insistence on not processing the appellant’s application and on her leaving Hong Kong forthwith, underscored by threats that she would be charged with overstaying if she failed to leave; prejudicial remarks made towards the appellants such as “you are only a domestic worker – you cannot make mistakes”; his coercing the appellant, on her first visit, to write the word “cancel” on her various application papers; his refusal to permit the appellant, on her third visit, to speak to his superior officer; his attempt to dissuade the appellant in his telephone conversation with her from seeking the assistance of lawyers; and his allegedly obsessive focus on the appellant’s case evidenced by his telephoning her twice to insist that she leave Hong Kong and by his intervening on her (fourth) visit to the Immigration Department, on 14 March 2011, by paging her to the Change of Employers Section when she was making no such application that day.[3] 37.It is common ground that the Judge correctly noted[4] that the appellant’s case was premised on (a) the relevant decision-maker being Mr Ma, and (b) on an acceptance of the appellant’s account of the various interactions between her and Mr Ma. 38.As to the first of these two matters, the Judge held that the decision-maker was Mr Wong Wing Yin, a Senior Immigration Officer, and not Mr Ma and that any alleged bias on the part of Mr Ma was not passed on to Mr Wong (Judgment §§37 to 41). As to the second of these two matters, since he had rejected the first premise as to the identity of the decision-maker, the Judge held that it was unnecessary to determine the factual dispute as to what was said by Mr Ma to the appellant (Judgment §44) but that, had it been necessary to do so, he would have relied on the principle that, in the absence of cross-examination on a dispute of fact, the court would proceed on the basis of the written evidence presented by the person who did not have the onus of proof, [5] and on this basis would “more likely than not accept Mr Ma’s evidence” (Judgment §45). 39.The appellant challenges the Judge’s conclusions on both these matters. As to the first, Mr Parker submitted that there is no indication that Mr Wong considered any other documents or materials to show that his approval was exercised independently of the recommendation made by Mr Ma. He further submits that there is no evidence that Mr Wong gave any consideration to the extenuating factors in the case, specifically the matters set out in the letter from Helpers for Domestic Helpers dated 1 March 2011. 40.I do not accept that the Judge was wrong in his conclusion that the relevant decision-maker was Mr Wong, rather than Mr Ma. The unchallenged evidence of the Director is that Mr Ma submitted the appellant’s application to Mr Wong, his superior, with a recommendation that the application be refused. It was, however, Mr Wong’s decision to endorse that recommendation that constituted the decision to refuse the application.[6] That evidence is consistent with the file minute (M1) prepared by Mr Ma in respect of the appellant’s application, which was headed “Application for Change of Employment with conviction record”. It concludes with the heading “Recommendation” which reads:
Mr Wong made a manuscript endorsement on the minute for Mr Ma which reads:
It was on the basis of that endorsement that Mr Ma then issued, on behalf of the Director of Immigration, the decision letter to the appellant. 41.Nor do I accept that it is established that Mr Wong, as the relevant decision-maker, failed to exercise his mind independently of Mr Ma’s recommendation as suggested or to give consideration to the extenuating factors in the case. It is relevant in this regard to note the following parts of Mr Wong’s affirmation:
42.It is clear from the extract of Mr Wong’s evidence quoted above that the decision to refuse the appellant’s application for an employment visa was that of Mr Wong and, moreover, was one taken after he had considered the representations made on behalf of the appellant in the letter dated 1 March 2011 from Helpers for Domestic Helpers. This evidence was not challenged and I would therefore reject the submission of Mr Parker that there was no evidence of the exercise of independent judgment by Mr Wong or consideration by him of the matters said to constitute important extenuating factors in this case. 43.I reject Mr Parker’s submission, based on Porter v Magill [2002] 2 AC 357 at p. 478 that Mr Ma’s alleged bias infected Mr Wong’s decision-making. The position in Porter v Magill was factually very different: there the decision-making body, the committee, “was used by the party leadership to secure approval of a policy of which the purpose was never fully explained”. That position simply does not apply on the facts here: Mr Wong was not used by Mr Ma to make the decision; although Mr Ma made a recommendation to him, Mr Wong was the superior officer who exercised his mind independently in reaching the decision to accept that recommendation. 44.Nor do I accept Mr Parker’s contention that the decision-maker should be regarded as Mr Ma because, as a matter of jurisdiction under the Immigration Ordinance (Cap. 115), an immigration officer has power to refuse to issue a visa and he was the signatory of the decision letter. That may be so, but the facts of this case show that the process undertaken was that a senior immigration officer, Mr Wong, received a recommendation from his junior and then made the decision whether or not to approve the employment visa. 45.I do not consider that any assistance for the appellant’s case is derived from Regina (Anufrijeva) v Secretary of State for the Home Department and another [2004] 1 AC 604, to which Mr Parker drew our attention. The facts of that case involved two separate decisions in relation to two different matters, namely asylum and income support benefit, and were very different to the present case. 46.Having reached the conclusion that Mr Wong was the decision-maker, it is not necessary to consider Mr Parker’s submission that the decision-maker here was required to consider the individual characteristics of the appellant, in particular because this was a renewal case rather than a fresh application and involved a determination of the appellant’s character which would have serious livelihood consequences for her. The short point is that the decision-maker did so but it is appropriate to record that it may not be strictly accurate to describe the appellant’s situation as being a renewal case rather than a fresh application. That is because it is apparent from paras. 26 to 29 of the Guidebook that, under the relevant policy, since foreign domestic helpers are only admitted for a specific job with a named employer for a limited period, it is necessary for a helper to make an application for change of employment at the end of a two-year contract if he or she wishes to take up employment with a new employer in Hong Kong. 47.The above conclusion as to the identity of the decision-maker is sufficient to dispose of this ground of appeal since, as I have noted above, the appellant’s case is premised on that being Mr Ma. In any event, in order to have succeeded on this ground of appeal, it would have been necessary for the appellant to establish that her account of the various interactions she had with Mr Ma was to be preferred to his account. I have already referred to the manner in which the Judge dealt with this point and, in my view, the Judge was correct to note that he did not need to determine the factual dispute. 48.It is therefore unnecessary to deal with the appellant’s contention that the Judge was wrong to say that he would more likely than not have accepted Mr Ma’s evidence because of the principle as to the treatment of contested evidence in the absence of cross examination. It seems to me, however, that, for a number of reasons, it would be unfair to reach the conclusion that Mr Ma’s evidence in this regard should be rejected without it being tested by cross-examination. Contrary to Mr Parker’s submission on behalf of the appellant to the contrary, there is an issue of credibility involved in relation to the disputed evidence. Mr Ma’s evidence was not simply that he could not recall what he said to the appellant due to the lapse of time. He also said that he did not accept as accurate, and strenuously denied, what was allegedly said by him as set out in the Form 86A. The words attributed to Mr Ma, if he used them, would demonstrate that he behaved in a rude and high-handed manner towards the appellant and she would have been entitled to better treatment from a public servant. On the other hand, there would not appear to have been any reason for Mr Ma to have said those things and behaved in that way towards the appellant. That simply makes it all the more necessary to test the evidence by cross-examination (rare though that may be in judicial review proceedings) since, the less likely a thing is to have happened, the more cogent the proof necessary to establish it. At the end of the day, it is simply not possible to resolve on the basis of affidavit evidence alone where the truth lies and, in reality, there may be room for different interpretations of what Mr Ma said to the appellant so that the position is not one where either one of the appellant and her supporting witnesses or Mr Ma is entirely correct. Whether the decision was Wednesbury unreasonable 49.The appellant’s complaint under this ground of appeal arises from the Judge’s comment (Judgment §76(1)) that the court in the exercise of its supervisory role in public law will only interfere if there has been bad faith, misuse of power or misapplication of the law. Mr Parker submitted that this proposition cannot be correct and is too narrow in that it could not have been the intention of the legislature that the Director be permitted to take into account irrelevant considerations or to ignore relevant considerations or to reach decisions that are unreasonable in the Wednesbury sense. 50.I do not consider that this ground of appeal is made out on the facts since it is clear that the Judge dealt with the appellant’s case on the basis that the issue before him was whether the Director had failed to take into account a relevant consideration or had reached a decision that was irrational. This is clear from the heading of section C4 of the Judgment below and also from the way the Judge set out the appellant’s ground of challenge (Judgment §70). 51.As regards the relevant considerations argument, the Judge set out the extenuating circumstances relied upon by the appellant (Judgment §71) and, after addressing Mr Wong’s evidence as to what he had considered in coming to and confirming the decision (Judgment §73), the Judge concluded:
52.I have set out above the relevant portion of Mr Wong’s affirmation in which he describes how he reached his decision to endorse Mr Ma’s recommendation to refuse the appellant’s application for an employment visa. In the light of that evidence, which has not been challenged, I am satisfied that it was proper for the Judge to reach the conclusion he did. 53.The Judge then went on to address irrationality and concluded that the decision was not one that no reasonable decision maker would have come to after considering the circumstances in the present case. He was of the view that the decision was one which was open to a reasonable decision maker in the position of the Director to make since, first, the threshold for judicial interference in immigration matters is a high one and, secondly, the Director must be entitled to implement the policy decision that employment visas will not normally be granted to foreign domestic helpers who do not have a clear criminal record (Judgment §76). It was in the context of the first of these two reasons that the Judge made the comment (at §76(1)) of which complaint is now made. 54.It is material in this context that the appellant is not challenging the policy for the approval of employment of domestic helpers from abroad as a whole. The proper construction of the policy has been addressed above and it is for the Director to administer that policy, not the courts. Although it may be thought that the strict liability offence of which the appellant was convicted is a minor matter and not one which has a direct impact on the suitability of the appellant to carry out the duties of a domestic helper, the policy is one under which the prospective helper is generally required to have no known record of any criminal conviction (as opposed, for example in relation to applicants for a visa under the employment as professionals or entry for investment category or under the admission scheme for Mainland talents and professionals, to no known record of serious crime). On the face of Mr Wong’s evidence, he did take into account the circumstances of the conviction and, notwithstanding the extenuating circumstances brought to his attention, he formed the view that this was not a conviction which the Director should overlook for the purposes of the policy. 55.As a matter of law, it is clear that that is a decision that is properly one for the Director. In this context, I would add that, as regards the Judge’s comment in §76(1) of the Judgment, I accept the submission of Ms Chow that the Judge was there saying no more than that, as is correct in the light of the authorities footnoted by him,[7] the threshold for judicial intervention in the exercise of discretion by the Director in immigration matters is a high one. 56.Finally, in this context, I would simply note that, although the appellant’s conviction would appear to be a relatively minor matter, the circumstances of the offence have not been fully investigated in the context of this judicial review and it is inappropriate to draw any firm conclusions as to how this should be characterised. The fact is that the conviction related to a relatively large quantity of cigarettes, 600 in total, for which a surprisingly low price had been paid, $590. Furthermore, Ms Chow indicated in her skeleton argument that it was not correct to assert that the Director never disputed that the appellant did not know the duty had not been paid: she pointed out that this was never mentioned in the Form 86 or the appellant’s evidence or in any other document or record made available to the Director prior to these proceedings. Conclusion 57.These are the reasons that lead, in my view, to the conclusion that the appeal should be dismissed with costs to the respondent.[8] Hon Barma JA: 58.I agree with the Reasons for Judgment of Fok JA.
Mr Timothy Parker, instructed by Vidler & Co., assigned by Director of Legal Aid, for the Applicant/Appellant Ms Grace Chow, instructed by the Department of Justice, for the Respondent/Respondent [1] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. [2] Form 86, §64. [3] This summary is taken from §81 of the Form 86. [4] Judgment §36. [5] For which the Judge cited Clive Lewis, Judicial Remedies in Public Law (4th ed., 2008) at para. 9-103. [6] See the affirmation of Ma Wing Sum at §§17-18 and affirmation of Wong Wing Yin at §§5-7. [7] Namely: Krishna Rai & Ors v Director of Immigration, unrep., HCAL 145/1999, 25 February 2000, per Yeung J at §§19-20; Ho Ming Sai & Ors v Director of Immigration [1994] 1 HKLR 21 per Godfrey J at p.30; Durga Maya Gurung v Director of Immigration, unrep., CACV 1077/2001, 19 April 2002 per Yeung J at §§55-60; and Gurung Deu Kumari & Anor. v Director of Immigration [2010] 6 HKC 137 per A. Cheung J at §§19-22. [8] The appellant being legally aided, we directed that her own costs should be taxed in accordance with the Legal Aid Regulations. Please refer to FAMV47/2013 for the relevant appeal(s) to the Court of Final Appeal. |
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