Nanik Darwati v. Secretary for Home Affairs

HCAL 135/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 135 OF 2012

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J U D G M E N T

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A. INTRODUCTION

1.This is the applicant’s judicial review challenge against:

(1) The decision (“the 1^st Decision”) of the Secretariat of the Community Care Fun (“CCF”) dated 19 December 2011 refusing her application for the $6,000.00 allowance under the “One-off Allowance for New Arrivals from Low-income Families Programme” (“the Programme”); and

(2) The decision (“the 2^nd Decision”) of the Appeal Group of the Community Care Fun Allowance for New Arrivals (“the Appeal Group”) notified to the applicant on 18 April 2012 affirming the 1^st Decision.

2.The applicant’s principal ground of judicial review as stated in the Amended Form 86 is that the 1^st and 2^nd Decisions are Wednesbury unreasonable, in that it was unreasonable for the Secretariat and the Appeal Group to have adopted the date of first issuance of her Hong Kong Identity Card as a means to determine whether or not she was a “new arrival” to be eligible for the Programme. 

3.The applicant seeks the relief of (a) an order of certiorari to quash the 1^st and 2^nd Decisions, (b) a declaration that her application under the Programme be allowed, and (c) an order of mandamus to require the Secretary for Home Affairs (“the Secretary”) to procure the Secretariat to determine her application under the Programme in accordance with the declaration sought.  Alternatively, she seeks an order remitting her application to the Secretariat for reconsideration.

B. THE FACTS

B1. The CCF and the Programme

4.The CCF is a trust fund established in January 2011, under the Secretary for Home Affairs Incorporation Ordinance (Cap 1044).  The Secretary was appointed as the trustee of the CCF. 

5.The stated main objective of the CCF is to provide assistance to people facing economic difficulties, particularly those who fall outside the social safety net or those within the safety net but have special circumstances that are not covered.

6.The work of the CCF was overseen and coordinated by the then Steering Committee of the CCF, which was chaired by the Chief Secretary for Administration.  There are 20 non‑official members of the Steering Committee who were drawn from various sectors of the community.

7.Under the Steering Committee, there were four subcommittees to support the CCF’s operation.  The Home Affairs Bureau (“HAB”) has also set up the Secretariat to coordinate cross-bureaux efforts to support the Steering Committee in mapping out and implementing the assistance programmes under the CCF.

8.The operation of the CCF is also guided by a number of principles including, among others, that the administrative cost should be minimized and any vetting process should be streamlined to ensure cost effectiveness.  The CCF’s programmes seek to provide swift and direct assistance to target beneficiaries through the existing service network where possible to minimize administrative cost.  The target is to limit the average administrative cost of the CCF to less than 5% of its total disbursements on a long-term basis.

9.In June 2011, the Steering Committee finalized the Programme and reported to the Legislative Council Panel on Home Affairs (“PHA”) by an LC paper (“the 2^nd PHA Paper”).  It is stated expressly in the 2^nd PHA paper that the objective (“the Objective”) of the Programme was to “provide new arrivals from low-income families who have entered Hong Kong for settlement with additional resources to facilitate their adaptation and integration into the community, and better prepare themselves for permanent settlement in Hong Kong”.  (emphasis added).

10.The Steering Committee identified the target beneficiaries eligible to apply under the Programme being those Hong Kong Identity Card (“HKIC”) holders who, among others, have entered Hong Kong for settlement for less than seven years as at 31 March 2012, and:

(1) Have entered Hong Kong from the Mainland on One-Way Permit;

(2) Have the right to land or on unconditional stay in Hong Kong; or

(3) Are staying in Hong Kong as dependents (and their spouses are Hong Kong permanent residents, or non-permanent residents with the right to land or unconditional stay in Hong Kong) (“the dependent applicants”).

11.For the purpose of implementing the Programme and the Objective, and given the criteria for eligibility set out above, the Secretariat devised that for the dependent applicants, they would satisfy as “new arrivals” for the purpose of the Programme if they meet the condition (“the Condition”) that the date of their HKIC is on or after 1 April, ie, less than seven years before the eligibility date of 31 March 2012.  In other words, the Secretariat has decided to adopt the issuance date of the HKIC to assess whether a dependant applicant is a “new arrival” for the purpose of the Programme and Objective.

12.After obtaining additional injection of $1.5 billion as approved by the Finance Committee of the Legislative Council, the Programme was open for application between 3 October 2011 and 30 June 2012. The Objective of the Programme was repeated in the paper (“the 2^nd FC Paper”) submitted to the FC for obtaining such additional funding.

13.It has also been explained in the 2^nd PHA and 2^nd FC papers that serving foreign domestic helpers, together with other people admitted for specific purpose, eg, study, training, visit, etc, are not considered to have been admitted into Hong Kong for settlement.  These people are therefore not eligible for the one-off allowance under the Programme.

14.The Condition was adopted and used by the Secretariat in vetting applications received by it.  It was also set out in the Steering Committee’s paper No 9/2012 dated March 2012.  This had not received any comments from its members.

B2. The applicant and her application

15.The applicant is an Indonesian national.  She first came to Hong Kong in 1996.  She was then issued a HKIC.

16.The applicant continued to work in Hong Kong as a domestic helper from time to time.  However, she gave birth to a daughter in Hong Kong in September 2004, and later in December 2004, she married the daughter’s father, who is a permanent resident in Hong Kong.

17.The applicant thereafter applied for a change of immigration status to one of dependent of her husband.  The application was granted and she was allowed unconditional stay in Hong Kong on 27 July 2005, at first for a period of one year.  There were subsequent extensions.  She now has unconditional stay until 27 May 2014 on the basis of her dependent visa.

18.In other words, the applicant’s immigration status was changed from that of a foreign domestic helper or visitor since 1996 to that of “dependent of a Hong Kong permanent resident” as from 27 July 2005.

19.The applicant applied for the one-off allowance under the Programme on 7 October 2011 under the category of dependant applicants.

20.On 19 December 2011, by way of the 1^st Decision, the applicant was informed by a notification issued by the Secretary for Home Affairs that her application was refused.  She was later informed that the reason for the refusal was that the first date of issue of her HKIC was not on or after 1 April 2005 (ie, she did not meet the Condition).

21.She wrote to the CCF to appeal against the 1^st Decision. 

22.On 28 February 2012, the Appeal Group met and considered, among 74 other appeals, the applicant’s appeal.  The Appeal Group decided to dismiss the applicant’s appeal for the same reason that she did not meet the Condition.  This is the 2^nd Decision

23.After obtaining legal aid, on 29 October 2012, the applicant applied for leave to apply for judicial review.  The Form 86 was amended later on 2 November 2012.

24.Leave was granted by Lam JA on 18 December 2012 after considering the initial response from the Secretary.

C. THIS JUDICIAL REVIEW

25.As mentioned above, the ground of judicial review is that the 1^st and 2^nd Decisions are Wednesbury unreasonable.  I would deal with the ground in greater detail now.

26.As stated in the Amended Form 86, it is said that the Decisions are Wednesbury unreasonable in light of the following:

(1) There is a statutory obligation[1] on every person to register and apply for a HKIC within 30 days of entering Hong Kong, whereas a person’s immigration status can change afterwards;

(2) The manner of assessing eligibility by way of the Condition is an incorrect fact-finding means and the Secretariat ought instead to have examined the travel documents of the applicant and the visa endorsements thereon to determine her eligibility.

(3) In particular, such manner of assessing eligibility is contrary to the fact that foreign domestic helpers are not eligible under the Programme (because they are not admitted into Hong Kong for settlement.

27.Opposing these grounds, Ms Tong’s submissions for the Secretary are in gist that:

(1) There has to be a means of determining whether an applicant should be considered a “new arrival” and whether such applicant has “entered Hong Kong for settlement for less than 7 years as at 31 March 2012”.  The adoption of the Condition is consistent with the underlying Objective of the Programme to assist new arrivals to help them to integrate and adapt into the community and prepare themselves for permanent settlement in Hong Kong.  This is also in line with the principles of administrative effectiveness upon which the Programme was set up and to keep the running cost to a minimum.

(2) The mere existence of other means (for example as the one suggested by the applicant) of determining eligibility does not by itself render the Condition Wednesbury unreasonable.  As explained by the Secretary in the evidence filed for this application, there are also legitimate reasons to support why the Secretariat decided to adopt the Condition as the means to assess eligibility.  It is said that it would be unrealistic and impractical for the Secretariat to examine the travel documents and entry/exit records of each and every dependant applicants to ascertain their eligibility, which would be very cumbersome, time consuming and costly. That would defeat the pronounced principles of maintaining administrative and cost effectiveness upon which the Programme was established.

(3) As stated in the SC paper No 9/2012 at paragraphs 6-7, in devising the Condition, the Secretariat considered that no matter under which immigration policies/arrangements applicants are admitted into Hong Kong,  they would start adopting to the livelihood in Hong Kong after their entry.  Hence, for the sake of administrative simplicity, and to achieve the Objective, the Condition was adopted as a means to determine whether a dependant applicant fulfilled the eligibility requirement.

(4) It is also pertinent to note that on the facts of this case, the applicant’s change in immigration to a dependant one in July 2005 does not make a difference as to whether she is a “new arrival” for the purpose of the Programme.  She entered Hong Kong in 1996 and would have started to adapt to the livelihood in Hong Kong right after such entry, whatever her immigration status[2]. The applicant has been in Hong Kong continuously (save for some short absences) since at least 2002 and it cannot be in any view regarded as a “new arrival” requiring assistance to “adapt” and “integrate” into the community.

(5) The applicant’s contention that the Condition is contrary to the fact that foreign domestic helpers are not eligible under the Programme is without merit.  It is the Secretary’s position that in order to be eligible under the Programme, the applicant must not only have entered into Hong Kong for the purpose of settlement, but must also be a “new arrival” who has been in Hong Kong for less than 7 years.   

28.It is not disputed that the CCF through its Secretariat can devise a means to assess an applicant’s eligibility for the Programme to satisfy the Objective.  I do not understand Ms Cheung for the applicant is saying that the Secretariat cannot devise such a means.  For example, counsel is not challenging the imposition of the 7 years limit in the Condition as unreasonable too.

29.What Mr Cheung is effectively saying by the above contentions is that the means so devised (i.e., to simply look at the date of first issuance of the HKIC) and to be applied across the board is at least Wednesbury unreasonable in relation to this applicant, because (a) it ignores (pertinent to this case) the applicant’s statutory obligation to register for a HKIC even though she only entered Hong Kong initially not for settlement purposes, and (b) the CCF’s or Secretariat’s own recognition that foreign domestic helper’s stay in Hong Kong should not be regarded as for the purpose of settlement.

30.Ms Cheung further contends that the Secretary’s above arguments are premised on divorcing the requirement of “new arrivals” from the requirement of “entering into Hong Kong for settlement”, which is not permitted under a proper reading of the Objective.  In other words, such a reading of the Objective (which is reduced into the Condition) as put forward by the Secretary is also Wednesbury unreasonable.

31.In light of these and the contentions raised by the parties, the fundamental issue that I need to determine is whether it is reasonably open to the Secretariat to look at the “new arrival” as set out in the Objective as a separate requirement by reference to the date of the first issuance of the HKIC.  

32.Ms Cheung says they cannot do that, because the term “new arrival” has no independent meaningful meaning for the present purpose, and it should and must only be informed by reference to the requirement of “entering into Hong Kong for settlement”.  You cannot, further submitted by Ms Cheung, therefore divorce the requirement of a “new arrival” and the requirement of “entering into Hong Kong settlement”. Thus, Ms Cheung says, whether someone is a “new arrival” for the purpose of the Programme must be determined at the time when he or she enters Hong Kong for the purpose of settlement, and it does not matter whether or not he or she has entered into Hong Kong previously and has been staying for any sufficient period of time for any other purposes.  As a result, Ms Cheung submits that the Secretariat should assess whether someone is a new arrival for that purpose on a case-by-case basis, and not by looking at only the date issuance of the HKIC, since that date (given the statutory obligation to register) has no necessary link to entering into Hong Kong for settlement purpose.

33.With respect, I cannot accept Ms Cheung’s submissions. 

34.In my view, it is reasonably open to understand the Objective by requiring firstly the applicant who is entering into Hong Kong for the first time (thus a “new arrival”), and secondly that he or she is also entering for the purpose of settlement.

35.This understanding of the Objective in my view is reasonably permissible in light of the following:

(1) It is consistent with the stated purpose of the Programme which is to facilitate new comers to integrate into Hong Kong.  The target is on those who are new to Hong Kong and also at the same time who need to settle here permanently.  To put it the other way round, it would therefore be exceptional to suggest that financial allowance would be required to assist someone who say has been working in Hong Kong on a work visa for 20 years (and thus by definition has been familiar with the Hong Kong’s livelihood), but who has then changed his status to a dependant and thus continuing to stay in Hong Kong for permanent settlement purpose.  The focus of the Objective is therefore on someone who is a new to Hong Kong, and who is required to settle in.

(2) The ordinary meaning of the words “new arrival” is well capable of referring to person entering into Hong Kong for the first time.  This meaning is more fortified when understood in the context of the above stated purpose of the Programme.

(3) If Ms Cheung’s construction is correct, there is in fact no need to specifically refer to “new arrival”, since (in her construction) anyone who has come to or stayed in Hong Kong for settlement purpose within 7 years before 31 March 2012 would be entitled to the allowance under the Programme[3]. All an applicant has to demonstrate in Ms Cheung’s case is that he has been entitled and has come to settle in Hong Kong to settle within that 7 years period.  That in my view cannot be right.

36.Ms Cheung further contends that the Secretary’s understanding as submitted is contrary to the government policies on foreign domestic helpers as shown in the CFA judgment in Vallejos Envangeline Banao v Commissioner of Registration[4].

37.In my view, the reliance on Vallejos is misplaced.  That case is concerned with whether the Government’s immigration policy (which has been incorporated in the legislation) not to regard foreign domestic helpers’ stay in Hong Kong as ordinary residence for the purpose of obtaining permanent residence in Hong Kong was unconstitutional, and thus the relevant legislation should be stuck down.  That has nothing to do with whether, for the purpose of a one-off social welfare allowance purpose, a particular foreign domestic helper’s stay in Hong Kong would satisfy the requirement of a “new arrival”.

38.For the above reasons, I therefore find the Condition as a means so devised by the Secretariat not Wednesbury unreasonable for the purpose of carrying out and implementing the Objective of the Programme.  This is particularly so in light of the stated principle of the operation of the CCF to keep the administrative cost down and to maintain any programme with administrative and cost efficiency and effectiveness. 

39.This is further underlined by the general principle that, a bright line test or rule instead of a case-by-case review may be justifiably adopted by the administration, particularly in the social welfare context, in consideration of cost, administrative convenience, and legal certainty, even if such a test or rule may sometimes give rise to some hard cases.  As said by Sir Henry Brooke in Stewart v Secretary of State for Work and Pensions [2011] EWCA Civ 907 at paragraphs 21-26 to the effect that:

(1) It is legitimate for the Secretary of State to apply “bright line” rules in constructing eligibility rules in the arena of social welfare;

(2) Policy concerned with social welfare payments must inevitably be something of a blunt instrument;

(3) The judiciary should accord the legislature or the executive a wide margin of appreciation or discretion when considering discrimination in the arena of social policy; and

(4) Considerations of cost and administrative convenience can be good reasons capable of justifying discrimination in the social welfare context.

40.For the above reasons, I do not accept the applicant’s grounds raised to argue that the Decisions based on the Condition are Wednesbury unreasonable.  In this respect, I also accept Ms Tong’s submissions as summarized above.

41.In her skeleton at paragraph 22, Ms Cheung appears to advance some further context in relation to the Condition to support her above submissions on the Wednesbury unreasonableness of the two Decisions based on the Condition.  It is Ms Cheung’s submissions that the Decisions are Wednesbury unreasonable in particular when they are looked at in the context that the Condition was not made known to:

(1) The Legislative Council members in the 2^nd PHA paper and the 2^nd FC paper.

(2) In the press release issued by the Secretariat on 8 September 2011.

(3) In the application form.

42.As fairly (and I think rightly) accepted by Ms Cheung, if the court does not accept the main arguments advanced above in support of Wednesbury unreasonableness, these additional context would not add anything further.

43.Given that I have rejected the main arguments, it is therefore not necessary for me to deal with these additional contexts.

D. CONCLUSION

44.For the above reasons, the applicant has failed in all her grounds of judicial review.  I therefore refuse the application.

45.[After hearing submissions on costs].  I further order that costs of this application be to the Secretary to be taxed if not agreed, with certificate for counsel.  The applicant’s own costs be taxed in accordance with legal aid regulations.

Ms Karen Cheung, instructed by L & L Lawyers, for the applicant

Ms Sara Tong, instructed by the Department of Justice, for the respondent