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Dewi Diana v Director Of Immigration

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date10 May 2019
Neutral Citation[2019] HKCFI 1204
Year2019
Judgement NumberHCAL2056/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL2056/2018 DEWI DIANA v. DIRECTOR OF IMMIGRATION

HCAL 2056/2018

[2019] HKCFI 1204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2056 OF 2018

________________________

BETWEEN
DEWI DIANA Applicant

and
DIRECTOR OF IMMIGRATION Putative
Respondent

________________

Before: Hon Chow J in Court

Date of Hearing: 29 March 2019

Date of Decision: 10 May 2019

___________________

D E C I S I O N

___________________

INTRODUCTION

1. In her Form 86 dated 27 September 2018, the Applicant seeks to challenge the decision of the Director of Immigration (“the Director”) made on 23 March 2018 and 10 July 2018 (“the March 2018 Decision” and “the July 2018 Decision” respectively) refusing to correct her “personal data in Hong Kong Special Administrative Region”. As will be seen below, the crux of the Applicant’s complaint relates to the Director’s refusal to change his records relating to her date of birth from 26 April 1985 to 26 April 1990.

2. On 21 February 2019, the court directed that the application for leave to apply for judicial review shall be dealt with at an inter-partes oral hearing on 29 March 2019.

3. At the hearing on 29 March 2019, the Applicant appeared in person, and the Director was represented by Mr Gilbert Mok, Government Counsel. At the conclusion of the hearing, the court reserved its decision. For reasons which I shall explain in this decision, the application for leave to apply for judicial review is dismissed.

BACKGROUND FACTS

(i) The Applicant’s previous applications for FDH visa / extension of FDH visa and Hong Kong Identity Card

4. The Applicant is an Indonesian national.

5. On 16 March 2007, the Immigration Department received an application by the Applicant dated 12 March 2007 for permission to enter Hong Kong for employment as a foreign domestic helper (“FDH”). In that application, the Applicant stated that her date of birth was 26 April 1985. One of the documents that she provided in support of the application was a copy of her Indonesian Passport No AK 119019 issued on 5 March 2007, which also stated that the Applicant’s date of birth was 26 April 1985.

6. On 19 April 2007, the Director granted to the Applicant an FDH visa valid for a stay of 24 months in Hong Kong. On 9 May 2007, the Applicant arrived in Hong Kong and commenced to work as an FDH here.

7. On 10 May 2007, the Applicant applied to the Commissioner of Registration for a Hong Kong identity card. In the application form, the Applicant likewise stated that her date of birth was 26 April 1985. A copy of the aforesaid passport was submitted in support of the application. A Hong Kong identity card, No W907726(2), was in due course issued to the Applicant. On the identity card, the Applicant’s date of birth was stated to be 26 April 1985.

8. Between April 2009 and January 2015, the Applicant submitted to the Director no less than 7 applications for visa/extension of stay in relation to her changes of employment as an FDH in Hong Kong, or for further stay in Hong Kong. In all those applications, the Applicant stated consistently that her date of birth was 26 April 1985:

Date of receipt of application Application form submitted to Immigration Department Passport number as stated in the application form
30.04.2009 Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A) AK 119019
26.05.2009 Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A) AK 119019
21.12.2010 Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A) AK 261611
05.12.2012 Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A) AS 147007
10.12.2014 Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A) AS 147007
05.01.2015 Application for Extension of Stay (ID 91) (as visitor) AS 147007
16.01.2015 Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A) AS 147007

9. The Applicant’s Indonesian Passports Nos AS 261611 and AS 147007 used by her in support of her various applications mentioned above were issued on 11 January 2010 and 19 September 2012 respectively. They both stated that the Applicant’s date of birth was 26 April 1985.

10. In short, between March 2007 and January 2015, the Applicant consistently represented to the Director of Immigration and Commissioner of Registration that she was born on 26 April 1985.

(ii) The Applicant’s overstaying in Hong Kong and repatriation to Indonesia

11. Between 2007 and 2015, the Applicant worked as an FDH for 5 employers in Hong Kong. After her last employment was terminated on 15 July 2015, she did not depart from Hong Kong within 14 days as required by her condition of stay, but overstayed in Hong Kong for over 1 year. On 12 July 2016, the Applicant surrendered herself to the General Investigation Section of the Immigration Department.

12. On 26 July 2016, the Applicant was convicted of the offence of breach of condition of stay by overstaying in Hong Kong, and was sentenced to 2 weeks’ imprisonment suspended for 3 years. On 27 July 2016, the Applicant was voluntarily repatriated to Indonesia.

(iii) The Applicant’s first data correction request in November 2017

13. On 9 November 2017, the Immigration Department received a letter from the Applicant dated 7 November 2017. In that letter, the Applicant stated as follows:

“I would like to take this opportunity to explain that my date of birth was inadvertently mentioned in your record as 26-04-1985. However my correct date of birth is 26-04-1990.

I give this notice under rights given to me under the personal data privacy ordinance to amend and correct my data provided.

I therefore request you kindly amend and correct my date of birth in [all your] records as 26-04-1990.”

14. Enclosed with the Applicant’s said letter were, inter alia:

(1) an “Application for Amendment of Registered Particulars of Hong Kong Identity Card” (Form ROP 73) dated 7 November 2017, in which the Applicant sought to amend her date of birth from 26 April 1985 to 26 April 1990;

(2) a copy of her new Indonesian Passport No B 7772017 issued on 30 August 2017, which stated that her date of birth was 26 April 1990; and

(3) an illegible copy of an excerpt of birth certificate.

15. By a letter dated 4 December 2017, the Registration of Persons Office invited the Applicant to attend an interview on 18 December 2017 regarding her “Application for Amendment of Registered Particulars of Hong Kong Identity Card”. She was asked to bring along the originals and photocopies of various documents to the interview, and was told that if she was unable to attend the interview or verify the original documents, no further action would be taken in respect of her application after two weeks’ time.

16. On 8 December 2017, one Mr Butt of “Shafin International Co” (“Shafin”) on behalf of the Applicant sent to the Immigration Department by email some further documents written in the Indonesian language accompanied by their English translation as certified by “Hong Kong Legal Translation” in support of her data correction request, including:

(1) a “Certificate Scheme B Academic Equivalency Program Academic Year 2016/2017” issued by the Ministry of Education and Culture, Republic of Indonesia, dated 2 June 2017;

(2) a “State Examination Transcript Scheme B Secondary School Academic Equivalency Program Academic Year 2016/2017” issued by the Ministry of Education and Culture, Republic of Indonesia, dated 2 June 2017;

(3) a document titled “Family Records” issued by the Department of Demographics and Civil Registration dated 10 July 2017; and

(4) a “Report of Loss of Item” issued by Negantang Sector Police dated 6 October 2016.

In all those documents, the Applicant’s date of birth was stated to be 26 April 1990.

17. However, the Applicant did not turn up for the interview regarding her “Application for Amendment of Registered Particulars of Hong Kong Identity Card” on 18 December 2017. On 2 January 2018, the Commissioner of Registration decided that no further action would be taken in respect of that application.

(iv) The Applicant’s second data correction request in February 2018 leading to the March 2018 Decision

18. On 15 December 2017, the Immigration Department received a data access request from the Applicant made under Section 18(1) of the Personal Data (Privacy) Ordinance, Cap 486 (“the PDPO”) requesting for access to “[a]ll data held in [the Director’s] record” relating to the Applicant. The Director responded to the Applicant’s data access request substantively on 10 January 2018, and provided copies of the relevant documents to the Applicant on 8 February 2018.

19. By a letter to the Director (mistakenly) dated 9 February 2017 which was received by the Immigration Department on 14 February 2018, the Applicant stated that she had duly retrieved all her personal data from the Immigration Department which she had applied for under the PDPO, and requested the Director to “amend and correct [her] date of birth as 26-04-1990 instead of 26-04-1985 in all [his] records”.

20. By a letter dated 5 March 2018, the Immigration Department invited the Applicant or her representative to attend an interview on 12 March 2018 and to bring along the originals and photocopies of various documents to the interview. The Applicant was asked, in particular, to produce a “Certificate or document issued by Consulate General of Indonesia in Hong Kong or Indonesian Passport Authority certifying that (i) the date of birth on [her] current Indonesian passport was correct, (ii) the date of birth on [her] old Indonesian passport(s) was...

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