MARIA ISABEL D. TERRADO v. DIRECTOR OF IMMIGRATION

cacv 92/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no.92 of 2006

(on appeal from HCAL NO. 11 of 2006)

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.  This was an ex parte appeal from the order dated 17 February 2006 of Lam J refusing the ex parte application by the applicant for leave for judicial review.  At the conclusion of the hearing, the appeal was allowed, the order below was set aside with no order to costs, with a direction that the application for judicial review be heard by a different judge.  Written reasons were to be given later which we now do.

2.  The applicant is a Filipino national who has worked as a domestic helper in Hong Kong since 1989.  Since 3 June 1997 she has worked for Mr Ratnani Bhawan Daulatram (“Mr Ratnani”) as his domestic helper.  Mr Ratnani lived with his 83-year-old mother who had had various strokes and heart problems.  Both were diabetics and had heart problems which required medication and a special diet.  The applicant looked after both of them and her duties included preparing Mr Ratnani’s meals, taking lunch to him at his office where she would wait for him to complete his lunch before returning home with the lunch box.

3.  In September 2004, immigration officers found the applicant in Mr Ratnani’s office performing chores in the nature of washing-up.  She was charged with and pleaded guilty a breach of her condition of stay in December 2004.  In mitigation, it was said that it whilst waiting for her employer to finish his lunch that she attended to those chores which were of a domestic nature albeit inside the employer’s office premises and that the breach was of a very minor nature.  The applicant was sentenced to four weeks’ imprisonment suspended for two years, the magistrate noting that it was a relatively minor incident.

4.  By letter dated 27 January 2005, the Immigration Department advised the applicant of the policy in respect of no known detriment, advising her that her conviction had been noted and placed on her immigration record, confirming that the then current stay was valid till 3 June 2005 and that any further application for extension of stay would be assessed accordingly upon her next application.

5.  Over the years she and her employer developed a relationship.  In December 2004 the applicant filed a notice of her intention to marry her employer.  The marriage ceremony was scheduled for the end of March 2005 but that could not take place because it proved impossible to obtain the annulment in the Philippines of the applicant’s prior subsisting marriage in time.  To date, that annulment has still not been obtained.

6.  Mr Ratnani entered into a further domestic helper contract with the applicant on 10 May 2005 and applied for a renewal of his employment visa.  Both he and the applicant were requested to attend an interview at the Immigration Department on 23 May 2005.  That afternoon Mr Ratnani received a call from an immigration officer (Ms Kwong) requesting that he withdraw his sponsorship of the applicant or the applicant’s application would be refused.

7.  Pursuant to Ms Kwong’s request, the applicant and Mr Ratnani accompanied by an employment agent (Mr Nattrass) met with Ms Kwong the following day.  In the course of the meeting, she interrupted their explanation of the application and told them “even if you proceed (with) the case, I will refuse the case based upon the conviction record.”

8.  Mr Nattrass then wrote a letter to the Director of Immigration complaining that Ms Kwong had acted in breach of fairness and denial of natural justice and requesting a meeting with the Chief Immigration Officer.  An appointment was scheduled for 30 May 2005.  On that day, after waiting for some time, the applicant was handed a letter which in pertinent part read:

“Given your conviction record in Hong Kong, I regret to inform you that your application for extension of stay submitted on 23 May 2005 has been refused.  Please note that you are permitted to remain in Hong Kong up to 03 June 2005.”

After that, a Chief Immigration Officer, Ms Tse, met and advised them that whilst the Department accepted the agreed facts at the magistrate’s hearing, it did not accept the mitigation made on the applicant’s behalf.  She added that she suspected that the applicant was being abused by her employer because of their relationship.

9.  Following the request of the Director of Legal Aid for information in connection with the applicant’s application for legal aid, the Director of Immigration responded by letter dated 20 June 2005.  That letter recorded the Department’s account of the background and went on to state this:

“Having examined our records and all available information furnished by Madam Terrado and her employer, the Director refused Madam Terrado’s extension of stay application on 30 May 2005.  The refusal decision was based upon the following considerations:-

(a) Madam Terrado’s conviction for breach of condition of stay in taking up unapproved work showing disregard of immigration law governing admission of aliens to HK;

(b) Lack of strong extenuating grounds that could justify deviation from our existing policy that we would not normally extend the stay of a FDH who has been convicted of breach of conditions of stay by taking up unapproved work/employment in HK.  In fact, the employer is currently hiring another FDH who would lessen the extent of hardship that might be caused to him and his family; and

(c) We are not satisfied that Madam Terrado has the genuine intention to remain in HK to serve the employer as his domestic helper or that the employer has the genuine intention to hire Madam Terrado to work as his FDH, given their admission of fiancée-fiancé relationship and active marriage application.”

10.  The relief sought by the applicant below was for leave, out of time, to move for judicial review of the decision of the Director of Immigration dated 30 May 2005.  The complaint was that the immigration officer had prejudged her application and failed to take the merits into account.  Whilst the letter of 30 May 2005 refusing her application for an extension of stay as a domestic helper stated a single ground, namely, her previous conviction, the letter of 20 June stated two additional reasons: the lack of strong extenuating circumstances justifying a departure from the usual policy of not extending the stay of a maid who had breached a condition of stay and the Director of Immigration not being satisfied that the applicant had a genuine intention to serve as a domestic helper given the admitted relationship between her and her employer.  

11.  The judge took the view that the real reasons for refusing the application were those set out in the letter of 20 June 2005.  At best, that would be speculation absent evidence from the decision maker and, in particular, an explanation as to why the 30 May letter made no mention of the additional reasons.  If the evidence were to establish that the real reasons were those stated in the letter of 20 June, then the question whether the applicant had been given a fair hearing and whether she had been accorded the opportunity to satisfy the decision maker that extenuating circumstances did exist and that she would be working for the sponsor as a domestic helper would need to be considered.

12.  At the application for leave stage, the test is whether the material before the court disclosed what might, on further consideration, turn out to be an arguable case.  See Ho Ming-sai and Ors v The Director of Immigration [1994] 1 HKLR 21.  The threshold is not a high one.  In my view, the test has been satisfied in the present case.

Hon Stone J:

13.  I agree with the judgment of Le Pichon JA.

14.  I confess that had it not been for the relative dissonance between the letters of 30 May 2005 and that 20 June 2005 I should have been less inclined to have looked favourably upon this appeal, and for my part I can well understand how the learned judge below formed the view that he did.

15.  As it stands, however, as Le Pichon JA has pointed out, the threshold test for the grant of leave is not a high one, and the issue of whether the applicant had been given a fair hearing in terms of the real reason(s) for refusal is an issue that satisfies that test.