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)

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Between:

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REASONS FOR DETERMINATION

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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 change of status to enable a visitor to stay in Hong Kong is purely an administrative decision. It is entirely a matter for the Director to decide how the discretion should be exercised and that the Courts will not assume any supervisory jurisdiction, not those in accordance with the Wednesbury principles and would only interfere if there had been bad faith or the equivalent thereof. (Italics supplied)

7.  Mr Philip Dykes SC submits that his Lordship adopted the wrong legal test by rejecting the applicability of Wednesbury principles and suggesting that some special regime applies only to the Director of Immigration.

8.  It does appear that some confusion may have crept into Au J’s decision.  At the beginning of §76(1), he indicates that he is applying the Wednesbury principles, holding that he does “not accept that no reasonable decision maker would have come to the Decision after considering these circumstances in the present case” and that “the Decision is one which is open to a reasonable decision maker in the position of the Director to make”.  However, the water is muddied when his Lordship goes on to state that he arrives at that conclusion “in particular in light of” what appears to be an erroneous approach adopted by Yeung J in Krishna Rai, exempting the Director from the Wednesbury approach and suggesting that more restrictive conditions must be met before his decisions are reviewable.

9.  We are however satisfied that, as indicated by the opening words of his §76(1) and as appears from other citations relied on in support of that paragraph, Au J correctly adopted the Wednesbury approach. His Lordship relied in particular on the relevant paragraphs in the later judgment of the Court of Appeal in Durga Maya Gurung v Director of Immigration[4] where Yeung J expressly adopted the Wednesbury test:

“55. As stated in the affirmation of Mr. Ho Kam Ping, Hong Kong is a small place with a huge population and a standard of living much higher than that of many of the neighbouring countries, not to mention the motherland with a population of over 1 billion; her attraction to potential immigrants cannot be overestimated.

56. The Director must be allowed to maintain and enforce a strict immigration policy to prevent any possible abuse. What policy to formulate and how to implement such policy is a matter entirely for the Director.

57. It is not for the court or anyone else to advise or dictate the Director on policy matters, as they may not be sufficiently informed of the ever-changing circumstances relevant to the formulation and the implementation of the policy.

58. The power of the court in a judicial review of the decision of the Director is limited as pointed out by Litton JA as he then was in R v Director of Immigration, ex parte Chan Heung Mui [1993] 3 HKPLR 533 at p.547:

‘It must be always borne in mind that it is for the Director and not for the courts to administer the scheme of immigration control under the Ordinance.’

59. A visitor has no legitimate expectation to be allowed to take up residence in Hong Kong. An application to review the decision of the Director who refuses to allow the change of status of a visitor to a dependant resident is unlikely to be successful unless it can be demonstrated that there had been misuse by the Director of his power or ‘that his decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (see the judgment of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at p. 410.)

60. The threshold for the court's intervention on Wednesbury unreasonableness, as the courts have repeatedly said, is necessarily very high.”

10.  That such was his approach is reinforced by Au J’s citation of the passages in Gurung Deu Kumari v Director of Immigration,[5] where A Cheung J (as he then was) stated:

“19.  In the light of Hong Kong’s small geographical size, huge population, substantial daily intake of immigrants from the Mainland, relatively high per capita income and living standards, and local living and job market conditions, it is not at all surprising that the Director has consistently devised and implemented a restrictive immigration policy in general and a restrictive dependent policy in particular.  As mentioned, those policies are not the subject matter of challenge in these proceedings.

20.  As has been pointed out in many cases concerning challenges against immigration decisions of the Director of Immigration (and his officers), the legislature has chosen to entrust the high responsibility for and discretions on immigration matters to the Director of Immigration.  It is an important responsibility, given Hong Kong’s unique circumstances, and the discretions conferred are wide.  As is expected from any good decision-maker who is vested with wide discretions, the Director has formulated many policies and guidelines regarding the exercise of his discretions.  The courts have therefore said repeatedly that they will not lightly interfere with the Director’s policies or exercise of discretion.  It represents not only a specific application of the general principle of public law that a court in its public law jurisdiction only exercises a supervisory jurisdiction, and does not sit as an appellate court from the decision of the decision-maker.  But it also represents an acknowledgment on the part of the courts that the legislature, in its wisdom, has entrusted the Director with the unenviable task of manning Hong Kong’s immigration controls.  See, for instance, Aita Bahadur Limbu v Director of Immigration HCAL 133/1999, 10 December 1999, Stock J; Bhupendra Pun v Director of Immigration HCAL 1541/2001, 22 January 2002, Hartmann J; Durga Maya Gurung v Director of Immigration CACV 1077/2001, 19 April 2002; Re Singh Sukhmander HCAL 89/2008, 18 September 2008, Andrew Cheung J.

21.  More generally speaking, the courts’ consistent approach also demonstrates their recognition that under the Basic Law, it is the executive which has been given the right and responsibility to administer the affairs in Hong Kong generally.  Indeed, article 154(2) of the Basic Law specifically authorises the Government to apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions.  The role to be played by the courts is essentially supervisory in nature.

22.  That being the case, the courts do not lightly interfere with the Director’s policy in granting dependant visas or with his exercise of discretion in granting those visas in individual cases.”

11.  A Cheung J was plainly not suggesting that any special regime applies to the Director.   He treats the Director as a decision-maker whose discretion is not to be lightly interfered with but who is subject to the courts’ supervisory jurisdiction as “a specific application of the general principle of public law”.  He also cites the Court of Appeal’s decision in Durga Maya Gurung v Director of Immigration.

12.  We are therefore satisfied that, despite the unfortunate reference to Krishna Rai v Director of Immigration, Au J did not apply the wrong test and therefore, that the first proposed question does not arise. 

The second question

13.  The Director’s policy itself is not subject to challenge.  Elaborating on the second question, Mr Dykes SC submitted on the applicant’s behalf that the Director has misunderstood his own policy which, properly construed, means that a visa is only to be refused on the criminal or detrimental record ground if the applicant has a conviction for an immigration offence and not some other criminal offence bearing consequences short of deportation, in the absence of some convincing justification advanced by the Director.  For the detailed reasons given by the Court of Appeal in §§19-32 of their Lordships’ judgment, we do not consider that a reasonably arguable submission.    

14.  For the abovementioned reasons, we refused leave to appeal.