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Lubiano Nancy Almorin v The Director Of Immigration

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date14 February 2018
Neutral Citation[2018] HKCFI 331
Judgement NumberHCAL210/2016
Citation[2018] 1 HKLRD 1141
Year2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL210/2016 LUBIANO NANCY ALMORIN v. THE DIRECTOR OF IMMIGRATION

HCAL 210/2016
[2018] HKCFI 331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 210 OF 2016

____________

BETWEEN
LUBIANO NANCY ALMORIN Applicant
and
THE DIRECTOR OF IMMIGRATION Respondent

____________

Before: Hon Chow J in Court

Dates of Hearing: 3-4 and 9 October 2017

Date of Judgment: 14 February 2018

___________________

J U D G M E N T

___________________


1. This application for judicial review concerns a systemic challenge to the “Live-In Requirement” applicable to foreign domestic helpers (“FDHs”) admitted to work as such in Hong Kong. Four grounds are advanced by the Applicant in support of her application, namely:-

(1) the Director of Immigration (“the Director”) does not have lawful authority to impose the Live-In Requirement on FDHs, whether as a condition of stay or as a precondition to exercising his powers to allow FDHs to come to work in Hong Kong (“the Ultra Vires Ground”);

(2) the implementation of the Live-In Requirement heightens the risk of a breach of engaged fundamental rights in a manner that is disproportional and therefore unconstitutional (“the Fundamental Rights Ground”);

(3) the implementation of the Live-In Requirement is discriminatory against FDHs by reason of their status as domestic helper or migrant worker contrary to Article 25 of the Basic Law (“the Discrimination Ground”); and

(4) applying the anxious scrutiny approach, the implementation of the Live-In Requirement without any, or any general, exception is irrational in the public law sense, and/or amounts to an unlawful fetter on the Director’s exercise of his discretion (“the Irrationality Ground”).

2. By a summons dated 13 September 2017, the Applicant seeks leave to (i) amend the Notice of Application for Leave to Apply for Judicial Review (“Form 86”), and (ii) file and serve the 2nd Affidavit of Wijesinghe Manisha Roshendri Leonie (“the 2nd Affidavit”). The Director opposes the summons. I have considered the proposed amendments to the Form 86 and the 2nd Affidavit on a de bene esse basis.

3. For reasons which I shall explain later in this Judgment, I reject the various grounds of challenge to the Live-In Requirement raised by the Applicant. Accordingly, the present application for judicial review stands to be dismissed.

4. At this juncture, I should also mention that, at the commencement of the hearing, Mr Paul Shieh, SC, on behalf of the Applicant, sought a direction from the court that there be no reporting of any personal facts of the Applicant, for reasons which it is not necessary to go into in this judgment. In view of the nature of the challenge raised by the Applicant, her personal facts and circumstances would not be directly relevant to the issues to be considered. Accordingly, I directed that it would not be necessary to refer to the personal facts of the Applicant in open court at the hearing. Neither is it necessary for me to do so in this judgment.

The current Live-In Requirement

5. The nature and effect of the current Live-In Requirement can be seen from the following documents issued by the Immigration Department:-

(1) the “Guidebook for the Employment of Domestic Helpers from Abroad”, ID(E) 969 (03/2015) (“the Guidebook”);

(2) the standard “Employment Contract (For a Domestic Helper recruited from abroad)”, ID 407 (“the Standard Employment Contract”);

(3) the “Visa/Extension of Stay Application Form for Domestic Helper from Abroad”, ID 988A (089/2014) (“the Visa Application”); and

(4) the “Application for Employment of Domestic Helper from Abroad”, ID 998B (09/2014) (“the Employment Application”).

(i) The Guidebook

6. The current immigration arrangement for employers wishing to employ foreign nationals to work as FDHs in Hong Kong is contained in the Guidebook. The following provisions in the Guidebook are relevant for the present purpose:-

(1) Under Section II (Eligibility Criteria), it is provided that employers who wish to employ FDHs have to satisfy the following criteria (amongst others) -

(a) the FDH and the employer shall enter into the Standard Employment Contract as specified by the Director;

(b) the FDH shall work and reside in the employer’s residence as specified in Clause 3 of the Standard Employment Contract; and

(c) the FDH shall be provided with suitable accommodation and with reasonable privacy.

(2) Under Section III (Undertaking), it is provided that –

“All [FDHs] and their employers are required to give an undertaking to the Government of the HKSAR. If an employer breaches the undertaking under Part 5 of the [Employment Application], his/her conduct will be taken into account in considering any future application he/she may make to employ [an FDH] and any such application may be refused. If [an FDH] breaches the undertaking under Part 6 of the [Visa Application], his/her conduct will be an adverse consideration in considering any future application for employment visa or for extension of stay in the HKSAR and any such application may be refused.”

(3) Under Section IV (Breaches), it is provided that –

“6 An employer will not normally be considered eligible to employ [an FDH] for a period of time where he/she has breached/has been convicted of any of the following breaches/offences:

(b) Offences relating to [FDHs] under labour laws;

(c) Offences relating to assault or harassment of [FDHs];

(d) Breach of the [Standard Employment Contract] or of the undertaking given to the Government of the HKSAR under Part 5 of [Employment Application].

7 In addition to requiring the [FDH] to meet normal immigration requirements…, the Director of Immigration will take the following offences/breaches into account in considering any future application by [an FDH] for employment visa or for extension of stay in the HKSAR and such future application will not normally be approved:

(b) Breach of obligations under the [Standard Employment Contract] or Undertaking to the Government of the HKSAR under Part 6 of the [Visa Application].”

(4) Under Section VI (Application Procedures), it is provided that an employer should, for the purpose of applying for an entry visa for a new FDH –

(a) arrange with the FDH to complete the Visa Application and four copies of the Standard Employment Contract (Step 1);

(b) complete the Employment Application (Step 2); and

(c) submit the above documents and relevant supporting documents to the Director (Steps 3 and 4).

(ii) The Standard Employment Contract

7. In the Standard Employment Contract, it is expressly provided, inter alia, as follows:-

(1) Clause 3 - the FDH shall work and reside in the employer’s residence at a specified address;

(2) Clause 4 - the employer shall provide the FDH with suitable and furnished accommodation as per the Schedule of Accommodation and Domestic Duties attached thereto;

(3) Clause 10 - either party may terminate the contract by giving one month’s notice in writing or one month’s wages in lieu of notice;

(4) Clause 11 - notwithstanding Clause 10, either party may in writing terminate the contract without notice or payment in lieu in circumstances permitted by the Employment Ordinance, Chapter 57; and

(5) Clause 15 - save for certain specified matters (which are not relevant for the present purpose), any variation or addition to the terms of the contract (including the Schedule of Accommodation and Domestic Duties annexed thereto) during its duration shall be void unless made with the prior consent of the Commissioner for Labour in Hong Kong.

8. The Schedule of Accommodation and Domestic Duties attached to the Standard Employment Contract requires (inter alia) the following matters to be specified:-

(a) approximate size of the employer’s residence;

(b) the number of adult, minors aged between 5 and 18, minors aged below 5, and persons requiring constant care or attention in the household to be served on a regular basis;

(c) the accommodation to the FDH, including the estimated size of the servant room (if provided), or the sleeping arrangement for the FDH (if no servant room is provided), and in the latter case whether the FDH is required to share a room with a child/children, or would have a separate partitioned area of a stated size;

(d) the facilities to be provided to the FDH; and

(e) the major portion of domestic duties to be discharged by the FDH.

(iii) The Visa Application

9. In the Visa Application, under Part 6 (Undertaking), the FDH is required to undertake to the Government (inter alia) that he/she will reside in the employer’s residence as stated in Clause 3 of the Standard Employment Contract, and declares that he/she understands that if he/she breaches the undertaking in Part 6, apart from the legal liabilities which he/she may incur, his/her conduct will be an adverse consideration in any future application for employment visa or for extension of stay in the HKSAR and that the application may be refused.

(iv) The Employment Application

10. In the Employment Application, under Part 5 (Undertaking), the employer is required to undertake to the Government (inter alia) that he/she will provide the FDH with suitable accommodation and with reasonable privacy, and the FDH will reside only in his/her residence as stated in Clause 3 of the Standard Employment Contract. The employer further declares that he/she understands that if he/she breaches this undertaking, his/her conduct will be taken into account in considering any future application that he/she may make to employ an FDH and that any such application may be refused.

(v) The FDH visa

11. Following a successful application for an FDH visa, the Immigration Department would issue to the FDH a visa...

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