LARAS PURWATI MARGO WALUYO v. DIRECTOR OF IMMIGRATION

HCAL 1498/2021

[2021] HKCFI 3336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1498 OF 2021

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D E C I S I O N

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1.  This case is suitable to be determined on paper.

2.  The applicant is an Indonesian national and a former foreign domestic helper (“FDH”).  Her last FDH contract was terminated on 25 March 2007.  It was found that she did not return to Indonesia after the termination of her contract and has been overstaying in Hong Kong ever since.  The Director of Immigration issued a deportation order against her but the order has not yet been executed because she raised a non-refoulement claim which is currently at the judicial review stage.  The removal order remains effective.

3.  On 31 August 2020, she applied for an employment visa to work as a FDH in Hong Kong.  On 1 December 2020, her application was refused by the Director (“1^st Decision”). She applied for a reconsideration of the 1^st Decision on 9 June 2021, which was also refused by the Director on 30 July 2021 (“2^nd Decision”).

4.  The 2^nd Decision is the subject of the current leave application.  The proposed challenge is raised by Form 86 dated 28 October 2021 (only just inside the ‘long-stop’ 3-month time period within which an application for leave to apply for judicial review should be made).

5.  As disclosed in the internal memo of the Immigration Department, the reasons for the 1^st Decision were that:  (a) the applicant refused to return to her place of origin before re-entering Hong Kong for the new FDH contract, contrary to the prevailing policy for FDH visas; (b) she did not have a valid travel document, which is part of the normal immigration requirement for visa application; (c) there was a removal order against her; and (d) the Director was not satisfied that her bona fides to work as a FDH was not in doubt.

6.  By letter received by the Director on 19 July 2021, the applicant’s lawyer put forward the following grounds for the Director’s reconsideration: (a) it was not feasible for the applicant to return to Indonesia (before re-entry)  in view of the pandemic and her asylum seeker status; (b) the request for valid travel document should be dispensed with since a former declaration of identity for visa purposes was accepted and she would be at risk of harm if she were to approach the Indonesian Consulate; and (c) there are cases where the Director has rescinded removal orders against non-refoulement claimants after their dependent visas were approved.

7.  The Director considered that the matters raised by the applicant’s lawyer did not amount to any change of circumstances.  He maintained that the application failed to meet the requirements of the prevailing policy and should be refused.  He also considered that there were no extenuating grounds or compassionate circumstances to justify a departure from the policy.

8.  No grounds of challenge to the 2^nd Decision were stated in the applicant’s Form 86.  In her affidavit, she said that the Director failed to consider the arguments submitted in the letter dated 8 June 2021 and did not explain why her application as not bona fide.  She did not exhibit the 8 June 2021 letter but in all likelihood it refers to the letter as mentioned in §4 above.

9.  Since the Director has adopted a policy regarding the issuance of FDH visas, he is required under the public law to act according to such policy, see BI v Director of Immigration [2016] HKLRD 520, §47.  The applicant failed to produce a valid travel document or to comply with the requirements of returning to the place of origin before taking up the new contract in Hong Kong, both of which are requirements for FDH visas under the policy, the Director is entitled to reject her application. Given that (a) the applicant has been overstaying in Hong Kong for more than 14 years, (b) a deportation order has been issued against her, and (c) she had raised a non-refoulement claim to resist deportation, the Director is entitled to come to the view that the applicant was not bona fide in her FDH visa application in light of all the circumstances.

10.  The matters put forward by the applicant’s lawyer are factors which the Director is not mandated to take into account by law.  It is for the Director to decide if he should consider any of such factors and the weight to be given to them in the exercise of his discretion: see BI (supra)  §105 and §118.  The Director is entitled to come to view that there are no extenuating or compassionate grounds which should justify a departure from the policy.

11.  There is no error of law, procedural irregularity or unreasonableness in the 2^nd Decision. This application has failed to meet the arguability threshold, and I therefore refuse this leave application.  I make no order as to costs.