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 4 cases