Aguilar Joenalyn Elmedorial v Director Of Immigration

CourtCourt of Final Appeal (Hong Kong)
Judgment Date28 Jan 2014
Judgement NumberFAMV47/2013
SubjectMiscellaneous Proceedings (Civil)
FAMV47/2013 AGUILAR JOENALYN ELMEDORIAL v. DIRECTOR OF IMMIGRATION

FAMV No. 47 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 47 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 225 OF 2012)

_____________________

Between:

AGUILAR JOENALYN ELMEDORIAL Applicant
and
DIRECTOR OF IMMIGRATION Respondent

_____________________

Appeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Tang PJ
Date of Hearing and Determination: 22 January 2014
Date of Reasons for Determination: 28 January 2014

____________________________________

REASONS FOR DETERMINATION

____________________________________

Mr Justice Ribeiro PJ:

1. At the hearing, we dismissed the application for leave to appeal, reserving our reasons which we now provide.

2. The applicant is a foreign domestic helper (“FDH”) who was refused an employment visa renewal because of her conviction for possession of cigarettes in respect of which duty had not been paid, an offence of strict liability. She was fined $800. She had been sent by her employer to buy the cigarettes.

3. She applied for judicial review of the Director’s decision. She failed before Au J,[1] and her appeal was dismissed by the Court of Appeal.[2]

4. Leave to appeal to this Court is now sought, with two questions said to arise of the requisite importance, namely:

“(1) Whether and by what authority the Director of Immigration enjoys immunity from the supervisory jurisdiction of the Court of First Instance save where some ‘higher threshold’ is met; and what such ‘higher threshold’ is.

(2) Whether on the correct construction of the prevailing immigration policy a person who has been convicted of a minor criminal or quasi-criminal offence (including an offence that is not ‘truly criminal’), other than an immigration or labour offence, has a ‘record to his/her detriment’ and may be refused entry / re-entry / permission to work in the HKSAR on that ground alone.”

The first question

5. The first question arises from what Au J said at §76 (1) of his judgement:

“Second, I do not accept that no reasonable decision maker would have come to the Decision after considering these circumstances in the present case. In my view, the Decision is one which is open to a reasonable decision maker in the position of the Director to make, in particular in light of the following considerations as submitted by Ms Chow for the Director:

It is now established that the threshold for judicial interference in immigration matter is a high one because of the onerous duty on the part of the Director to enforce immigration control in the exercise of his statutory power and discretion. The Director must be allowed to maintain and enforce an immigration policy to prevent any possible abuse and it has been said what policy to formulate and how to implement such policy is a matter entirely for the Director. The court in the exercise of its supervisory role in public law will would only interfere if there has been bad faith, misuse of power or misapplication of the law.” (Italics supplied)

6. Au J cited several authorities in support of his statement including Krishna Rai v Director of Immigration,[3] where Yeung J stated:

“It is well established that the discretion to allow a...

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