AGUILAR JOENALYN ELMEDORIAL v. DIRECTOR OF IMMIGRATION

HCAL 40/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 40 OF 2011

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J U D G M E N T

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A. INTRODUCTION

1.  The applicant is a Philippine national and had been working in Hong Kong as foreign domestic helper (“FDH”) since September 2000 under an employment visa.  In February 2011, her then employer, Mr Meyer, decided not to renew her contract.

2.  On 14 February 2011, she applied for extension of stay to seek employment in Hong Kong, and was granted such permission to remain as a visitor for 2 weeks until 28 February 2011.

3.  She later secured a contract to work as a FDH for a Mr Graham.  Thus, she approached the Immigration Department (“the Department”) and submitted an application for employment visa to work for Mr Graham.

4.  She had made a number of visits to the Department regarding this application for employment visa, the details of which I would describe later.  After the interview on 9 March 2011, she was given a letter signed for the Director of Immigration (“the Director”) informing her the decision (“the Decision”) to refuse her visa application to work as a FDH in Hong Kong.

5.  By way of this judicial review, she challenges the Decision seeking initially to quash it, and for an order of mandamus requiring the Director to appoint a fresh decision-maker to reconsider her work visa application.

6.  At the hearing, Mr Parker for the applicant informs this Court that, as Mr Graham has by now found another domestic helper and is no longer seeking to employ the applicant, the relief now sought is limited only to an order to quash the Decision. 

7.  Notwithstanding this, Mr Parker further submits that this application is still not academic, since if the Decision stands, it would render the applicant’s any future application for work permit to work in Hong Kong more difficult if not impossible in practice.  Ms Chow for the Director does not seek to seriously contend otherwise.

8.  I am therefore prepared to continue to hear the application on this basis.

9.  To understand the applicant’s complaints and the grounds of judicial review, I need to summarise in some details the relevant background first.

B. THE BACKGROUND

B.1  The applicant’s application for employment visa

10.  As mentioned above, the applicant in 2011 was working for Mr Meyer under an employment contract which was due to end in February 2011.

11.  Prior to the expiry of the said employment contract, she was arrested on 31 January 2011 for the offence of possession of 3 cartons of cigarettes of which duty had not been paid.  This was contrary to s 46(3) of the Dutiable Commodities Ordinance, Cap 109, which Mr Parker submits is a strict liability offence.  It is however her case that she purchased these cigarettes under Mr Meyer’s instruction.

12.  On 8 February 2011, she pleaded guilty and was convicted of the said offence and fined $800.00.   Apparently, Mr Meyer paid for her bail and the fine.

13.  Subsequently, Mr Meyer did not renew the applicant’s employment contract when it expired.  Mr Meyer informed the FDH Section of the Department of the same by a letter dated 14 February 2011.

14.  After obtaining another contract of employment with Mr Graham, the applicant then approached the Department on 28 February 2011 to apply for an employment visa for taking up the employment as a FDH with Mr Graham.

B.2  The interview at the Department on 28 February 2011

15.  On this occasion, the applicant’s application was handled by an Immigration Officer known as Mr Ma.  It is the applicant’s case that after she submitted the application with the supporting documents, Mr Ma refused to process her application because of her above mentioned criminal conviction record.  He further “coaxed” her to cancel the application by threatening to call and tell Mr Graham that she could not work for him.  Mr Ma also reminded her that she should go back to the Philippines that day or else he would charge her with the offence of overstaying.

16.  In relation to these allegations, it is the Director’s evidence that the Department now has no record of such application or the events concerning the interview on 28 February 2011, as it is the Department’s usual practice to dispose of and not to keep cancelled applications.  But in any event, Mr Ma has filed evidence in this application to dispute the applicant’s account of what happened on 28 February 2011 between him and the applicant.  Mr Ma’s evidence in this respect is in gist as follows:

(1) At the interview with the applicant, having been informed of her conviction, Mr Ma explained to her the eligibility criteria under the FDH policy (“the Policy”) as stipulated in paragraphs 1(i) and 2 of Part I of the “Quick Guide for the Employment of Domestic Helpers from Abroad” (“Quick Guide”) which states:

“Employers who wish to employ a domestic helper from abroad (Helper) have to satisfy the following criteria:

...

(i) there is no known record to the detriment of the employer and the Helper

…

2. ... The issuance of a visa to individual Helper is subject to the normal immigration requirements being met (such as ... be of clear criminal record...)”

(emphasis added)

(2) He denies that he said that he would not process her application and required the applicant to write the word “cancel” on the application.  He only informed the applicant that her conviction record was considered to be a “known record to her detriment” and that she did not meet the normal immigration requirements.  In the circumstances, her change of employer application would not normally be approved.  After taking some time to consider whether to proceed with her application, the applicant herself voluntarily decided to cancel the application and agreed to confirm this in writing.  Mr Ma also denies having told the applicant to go home or else he would charge her for overstaying.  However, he did tell her that if she did not proceed with the application, she had to arrange for her departure because her limit of stay was only up to 28 February 2011.

17.  According to the applicant, later on that day, she approached the Department again to seek an extension of stay in order to talk to the personnel in her embassy and Mr Graham.  On this occasion, her application for extension of stay was dealt with by a Mr Chau, who was a Chief Immigration Assistant of the Extension of Stay Sub‑Section of the FDH Section of the Department (“the Extension Sub‑section”). According to the applicant, she was informed by Mr Chau that, as there were no outstanding court proceedings or debts, there was no reason why her “documents [relating to her employment visa application] could not be processed”.  Mr Chau allegedly also telephoned Mr Graham to ask him to submit fresh copies of the documents.

18.  In any event, this application for extension of stay was approved and the applicant was allowed to stay in Hong Kong as a visitor until 14 March 2011.  In his affirmation filed for the present purpose, Mr Chau deposes to the effect that he now could not remember this conversation, but he would not have given any advice or suggestion to the applicant, nor would he have called Mr Graham as alleged, as to do these would be inconsistent with the Extension Sub‑section’s practice.

B.3  The applicant’s visit to the Department on 9 March 2011

19.  On 9 March 2011, the applicant went to the Department again to submit an application for employment visa to work for Mr Graham.  This time, she was accompanied by a Ms Wong of the recruitment agency.  It was again Mr Ma who handled the applicant’s application.

20.  There are again conflicting versions of what happened on this occasion. 

21. According to the applicant:

(1) Mr Ma maintained that because of the applicant’s criminal record, her application could not be processed and told the applicant to go home.  He also refused to read a letter from the organisation known as Helpers for Domestic Helpers (“HDH”) dated 1 March 2011 (“Letter of 1 March 2011”) submitted by the applicant to him.

(2) The Letter of 1 March 2011 made representations on behalf of the applicant and stated, inter alia, the circumstances of her committing and conviction of the offence, the fact that it was a minor offence and that she otherwise had committed no other offences.  HDH urged the Department to consider favourably the applicant’s application under these special circumstances of her case.  Mr Ma however said he would not look at the letter but would only file it for record.

(3) Then about an hour later, Mr Ma handed to the applicant a letter (“the Decision Letter”) dated 9 March 2011, which stated the Decision to refuse her application for employment visa. When asked what the letter was, Mr Ma replied to the applicant that “she cannot process any documents, she is declined”.  Mr Ma also allegedly told her to make sure that she should leave Hong Kong by 14 March 2011.

22.  The Decision Letter sets out as follows:

“ We refer to your application submitted on 09 March 2011 for permission to work as a foreign domestic helper in Hong Kong.

Under the existing policy, application for permission to work in Hong Kong as a foreign domestic helper may be favourably considered, inter alia, that there is no known record to his/her detriment.

Having considered all the circumstances of your case including your criminal record, we regret to inform you that your application is refused.

Please note that you are permitted to remain in Hong Kong as Visitor up to 14 March 2011 and you are required to leave Hong Kong on or before this date.” (emphasis added)

23.  In relation to this meeting, Mr Ma’s evidence is however that, at the interview with the applicant in the presence of Ms Wong, he explained to them the Policy again as directed by his superior Mr Wong, a Senior Immigration Officer, after reporting the applicant’s case to him.  Mr Ma then proceeded to process her application but recommended to Mr Wong that the application be refused, having considered that the criminal conviction of the applicant was a “known record to her detriment” and that there was no justification to depart from the Policy.  The recommendation was endorsed by Mr Wong[1].

24.  Further, it is the Director’s case that the Letter of 1 March 2011 was only submitted by the applicant to the Department after the Decision.  It is Mr Wong’s evidence that he had in any event subsequently read the Letter of 1 March 2011 to reconsider the Decision.  But even after taking into account of all the representations made in it, Mr Wong concluded that there were still no extenuating grounds that could justify a deviation from the Policy, and the Decision should be maintained[2].

B.4  The events of 10 March 2011

25.  On 10 March 2011, another letter from HDH was received by the Department which mentioned that the applicant visited the Department the day before to submit her application together with the Letter of 1 March 2011 which Mr Ma refused to read and refused her application.  The letter further made representations on the applicant’s behalf to seek to persuade the Director to approve the applicant’s application for employment visa.  This was forwarded to Mr Wong by Mr Ma.  Mr Wong then instructed Mr Ma to telephone the applicant to inform her of the Department’s receipt of the letter and to clarify whether she intended to request a reconsideration of her case and if so, she had to submit the request in person.

26.  It is not disputed that Mr Ma telephoned the applicant on 10 March 2011 but there is again a dispute as to what was said in that conversation.

27.  According to the applicant, over this conversation, Mr Ma discouraged her from seeking assistance from HDH and lawyers, and reminded her that she must leave before 14 March 2011.  On the other hand, according to Mr Ma, he could not now recall the exact conversation on this occasion but he does not accept the applicant’s account of what he had said.

B.5  The applicant’s visit to the Department on 14 March 2011

28.  On 14 March 2011, the applicant accompanied by a Ms Cheuk (a representative from her solicitors) attended the Department to seek an extension of stay.  According to the applicant, on that occasion Mr Ma sought out to see her and had reiterated that he would not give the applicant the permission to work in Hong Kong and certainly would not process the applicant’s application for employment visa, although Ms Cheuk maintained that the applicant was only seeking an extension of stay.

29.  Mr Ma, on the other hand, said that he only met the applicant at the suggestion of the colleague at the Extension Sub-section to clarify the purpose of her intended application.  After the clarification and knowing that she was only applying for extension of stay, the matter was referred to the Extension Sub‑section which subsequently approved the extension of stay application.  He denies having said what the applicant alleges he had said.

B.6  The applicant for leave for judicial review

30.  On 14 June 2011, the applicant applied for leave to apply for judicial review against the Decision.

31.  Leave was granted by this Court on 20 June 2011.

C. GROUNDS OF JUDICIAL REVIEW

32.  The applicant raises four grounds of judicial review.  I would consider them in turn below.

C1.  Procedural unfairness or breach of natural justice

33.  The applicant submits that the Director, as a decision-maker entrusted with public power, was subject to a duty to act in a procedurally fair manner in determining her application for employment visa[3].  Specifically, the Director was required to at least give the applicant a meaningful opportunity to make representations and then to consider them.

34.  Under this ground, the applicant says, in gist, in light of her version of events as summarised above, Mr Ma, who was in effect and in fact the decision maker acting for the Direcctor, pre‑judged the applicant’s application and refused to hear and consider her representations, whether made orally at the various interviews or through the HDH letters.  These were in breach of the duty to act fairly and amounted to procedural unfairness or breach of natural justice in relation to her application.

35.  I can deal with this ground fairly quickly.

36.  The applicant’s submissions are premised fundamentally on (a) her case that the relevant decision maker for the Decision was Mr Ma, and (b) the acceptance of her account of what happened during the various meetings she (and those accompanying her) had with Mr Ma.  Her belief that Mr Ma was the relevant decision maker is based on the fact it was Mr Ma who signed (for the Director) the Decision Letter.

37.  However, the evidence filed by the Director for the present purposes shows that it was not Mr Ma but Mr Wong who was in fact the decision maker acting for the Director.  The evidence also shows that the applicant’s application was submitted by Mr Ma to Mr Wong for the latter’s consideration.  Mr Wong has also affirmed that he had considered and verified all available information regarding the applicant’s application before endorsing Mr Ma’s recommendation to refuse it because of the applicant’s previous conviction and that there was no justification to depart from the Policy.  This evidence is not subject to any real challenge.

38.  Mr Wong’s further unchallenged sworn evidence is that he had also in any event taken into account of the 1 March 2011 Letter when he received it after (in the Director’s case) the Decision was made.  But even after taking the representations made in this letter into consideration, he concluded that there were no extenuating grounds that justified deviation from the Policy.  He therefore maintained the Decision.

39.  In light of this, even if (but without concluding the same) there was the alleged bias or prejudice formed on the part of Mr Ma, I do not accept that there is any evidence to show that this had been passed onto Mr Wong, or in any way operated in or affected Mr Wong’s independent consideration of the applicant’s application for employment visa.

40.  In the premises, it has similarly not be shown that the alleged procedural bias or breach of natural justice purportedly practised by Mr Ma (which has been squarely disputed by Mr Ma), even if true, had in any way materially affected the relevant and effective decision making process by Mr Wong in coming to the Decision.  The evidence instead shows that Mr Wong had taken into account of applicant’s representations made in support of her application notwithstanding her conviction.  In other words, in my view, the Decision is not tainted or affected in any material way by the alleged bias of Mr Ma.

41.  On this basis alone, I would reject this first ground of the judicial review. 

42.  Further, given the dispute on what happened at the various interviews the applicant had with Mr Ma, the merit of this judicial review ground is also dependent on the Court’s acceptance of the applicant’s account of the events and rejection of Mr Ma’s. 

43.  In relation to this, given that there is no application to cross-examine Mr Ma or Mr Wong on these disputes, I accept Ms Chow’s submissions made for the Director that, in the absence of cross-examination, any such dispute of fact should generally be resolved in favour of the Director.  As commented by the learned author in Judicial Review in Public Law[4] at paragraph 9‑103:

“…If there is a dispute of fact and no cross-examination is allowed, the courts will proceed on the basis of the written evidence presented by the person who does not have the onus of proof. As the onus is on the claimant to make out his case for judicial review, this means that in cases of conflict on a critical matter which are not resolved by oral evidence and cross-examination, the courts will proceed on the basis of the defendant’s written evidence.”[5]

44.  Given my above reason for rejecting the first ground of judicial review, the Court does not need to determine the factual dispute.

45.  However, if it were necessary for me for the present purposes to decide which account of the events I would accept, I would have placed significant reference to this principle in treating the contested evidence in the absence of cross examination, and would therefore be more likely than not accept Mr Ma’s evidence.

C2.  Decision tainted by actual and/or apprehended bias

46.  Under this second ground, the applicant says that a fair minded observer would conclude from the following matters as alleged by the applicant[6] that there was a real possibility of bias on the part of Mr Ma towards the applicant:

(1) Mr Ma’s prejudicial remarks made towards the applicant’s status, for example: “you are only a domestic worker – you cannot make mistakes”;

(2) His somewhat obsessive focus on the applicant’s case, as evidenced by: (a) his taking the initiative to telephone the applicant twice to insist, among others, that she should leave Hong Kong; and (b) his intervention on the visit on 10 March 2011, when he paged the applicant to attend before him at the Application to Change Employers Section, despite the absence of any application then pending before that section or before him personally;

(3) Ms Cheuk’s observation that Mr Ma seemed “annoyed and impatient” in dealing with the applicant (even though he was not required to at the time since she had no extant application before his Section);

(4) Mr Ma’s repeated insistence on not processing the applicant’s application;

(5) His forcing the applicant, during the first visit on 28 February 2011, to write the word “Cancel” on the various documents submitted (including the employment contract) when he plainly had no lawful authority to require the same;

(6) His repeated insistence on the applicant leaving Hong Kong forthwith, underscored by ongoing threats that the applicant would be charged for overstaying if she failed to leave Hong Kong;

(7) His refusal to permit the applicant at the 3^rd visit, at Ms Wong’s request, to speak to his superior officer; and

(8) His attempt to dissuade the applicant from seeking the assistance of lawyers.

47.  Similar to the first ground, the merit of this ground is also fundamentally premised on (a) the allegation that Mr Ma was the relevant and effective decision maker, and (b) the Court’s acceptance of the applicant’s version of events at the various interviews.

48.  For the same reasons I have set out above in rejecting the first ground, I would similarly reject this ground.  If necessary, I would also repeat my observations at paragraphs 42 to 45 above as to what I would be inclined to do on the disputed evidence in the absence of any cross-examination of Mr Ma and Mr Wong.

C3.  Misapplication of the Policy

49.  This ground turns on the sole question as to whether, on a proper construction, the applicant’s criminal record can be regarded as a “record to her detriment” under the Policy.  It should be noted that in this judicial review, the applicant does not challenge the Policy itself.

50.  Mr Parker for the applicant says that, reading the Decision Letter properly, the only reason provided therein to support the Decision was the Director’s conclusion that the applicant had a “record to her detriment” for the purpose of the Policy by reason of her criminal conviction.  This, submitted by Mr Parker, is a misunderstanding and incorrect construction of the meaning of that phrase under the Policy.  Mr Parker contends that, on a true and objective construction of the Policy by reference to the Quick Guide and the “Guidebook for the Employment of Domestic Helpers from Abroad” (“the Guide”)[7], a “record to her detriment” refers to only a conviction relating to offences under immigration laws or labour laws, or breaches of obligations under the employment contract or undertaking given by the FDH to the Government.  As the applicant’s conviction does not fall within any of these categories, the Director’s conclusion that her criminal record was a “record to her detriment” under the Policy to support the Decision is thus wrong in law.  The Decision should therefore be quashed.

51.  The applicant’s construction of the meaning of “record of detriment” under the Policy runs as follows.

52.  Section I of the Quick Guide sets out what the Department under the Policy considers as the necessary criteria that need to be met for an application for FDH employment visa.  In particular, Section I, paragraph 1(i) provides:

“I. Eligibility Criteria

Employers who wish to employ a domestic helper from abroad (Helper) have to satisfy the following criteria:

…

(i) there is no known record to the detriment of the employer and the Helper, and

…” (emphasis added)

53.  Thus, under the Policy, an application for FDH employment visa needs to show that there is, inter alia, “no known record to the detriment” of the prospective employer and FDH.  However, no definition of “record to the detriment” is provided in the Quick Guide.

54.  Assistance for its construction (Mr Parker submits) could on the other hand be sought from the Guide in the following ways.

55.  Paragraph 2(h) of Part II of the Guide provides as follows:

“II. Eligibility Criteria

2. Employers who wish to employ Helpers have to satisfy the following criteria:

…

(h) The bona fides of the employer and the Helper are not in doubt; there is no known record to the detriment of the employer and the Helper. For details of matters which will be taken into account, please refer to section IV on ‘Breaches’ below …” (emphasis added)

56.  Thus, in considering whether there is “no known record to the detriment” of the employer and the FDH, the Director would take into account the matters provided under Section IV of the Guide. One therefore looks to Section VI to see what are the matters that the Director would take into account for that purpose.  In relation to this, paragraph 6 of Section VI states as follows: 

“6. In addition to requiring the Helper to meet normal immigration requirements (see paragraph 3), [the Director] will take the following offences/breaches into account in considering any future application by a Helper for employment visa or for extension of stay in the HKSAR and such future application will not normally be approved:

(a) Offences under immigration law; or

(b) Breach of obligations under the standard Employment Contract (ID407) or Undertaking to the Government of HKSAR under Part 6 of the ‘Visa/Extension of Stay Application Form for Domestic Helper from Abroad’ (ID 998A).” (emphasis added)

57.  The applicant further says that it is also relevant to look at the paragraph 15 of the Quick Guide which reads as follows:

“VI. Undertaking and Breaches

15. Any breach of the [standard employment contract] or [undertakings to Government], or conviction of any related offences under immigration laws or labour laws will be an adverse consideration in considering the employer’s future application for a Helper or the Helper’s future application for employment visa or for extension of stay in the HKSAR.” (emphasis added)

58.  Reading these relevant parts of the Guide and the Quick Guide together, Mr Parker for the applicant submits that:

(1)     The objective and proper construction of the meaning of “record to her detriment” would only mean and refer to a record relating to an offence contrary to immigration laws or labour laws, or breaches of the standard FDH employment contract and/or undertakings given to the Government for the purpose of the relevant visas. 

(2)     Since the applicant’s conviction is neither of these offences, there was no such “record of her detriment” for the purpose of the Policy.  The Director thus had misapplied the Policy in reaching the Decision in refusing her employment visa application.

59.  With respect to Mr Parker, I do not think his construction of the meaning of the phrase “no known record to the detriment” is a correct one.  I would explain why.

60.  Mr Parker is correct to say that paragraph 2(h) of the Guide (which introduces the phrase “no known record to the detriment”) refers one to Section IV of the Guide to see what the Department would consider as matters relevant to determining whether there is “no known record to the detriment” of the subject FDH.

61.  It is also correct that it is provided under paragraph 6 of Section IV (as quoted above) that the Director would take into account of offences and breaches under immigration law or breaches of any undertakings in considering whether there is “no known record to the detriment” of the FDH.  

62.  However, one should construe the meaning of paragraph 6 as a whole, and paragraph 6 provides more than that.  It commences with the words “In addition to requiring the Helper to meet normal immigration requirements (see paragraph 3)…”.

63.  In the premises, in objectively construing paragraph 6 as a whole with these words, its meaning is (in my view) that, in considering (amongst others) whether there is “no known record to the detriment” of the FDH, the Director would and could take into account of whether the prospective FDH (a) has (by reference to the first sentence of paragraph 6) met the normal immigration requirements as set out in paragraph 3 of the Guide, and (b) has (by reference to the later part of paragraph 6) committed any offences under immigration laws or breaches of any government undertaking.

64.  As to what constitutes the “normal immigration requirements”, paragraph 3 of the Guide provides as follows:

“3. A Helper must be in possession of a proper visa before he/she travels to the HKSAR. The issuance of a visa to individual Helper is subject to the normal immigration requirements being met (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be of clear criminal record and raises no security or criminal concerns to the HKSAR, has no likelihood of becoming a burden on the HKSAR; etc.) Employers who satisfy the above criteria should not assume that their Helper's visa application would be approved automatically.” (emphasis added)

65.  Thus, when considering whether the helper has met the normal immigration requirements, the Director would and could take into account of, inter alia, whether he or she has a clear criminal record.

66.  In the premises, properly reading paragraphs 2(h), 3 and 6 of the Guide together, under the Policy, in determining whether the helper has any “record to her detriment”, the Director would take into account of, inter alia, whether she has a clear criminal record.

67.  Construed as such, the meaning of “record to her detriment” for the purpose of the Policy includes, among others, any criminal records of the prospective FDH, and is not limited to only convictions for offences of the immigration laws or labour laws, and breaches of any undertakings given to the Government or the employment contract as contended by Mr Parker. 

68.  The Director was therefore correct in concluding that the applicant had “a record to her detriment” for the purpose of the Policy in arriving at the Decision. 

69.  The Director has not misapplied the Policy as contended and I would also reject this ground of judicial review.

C4.  The Director had failed to take into account of relevant consideration and/or the Decision is irrational

70.  The applicant’s last ground is advanced as an alternative to the above ground.  She says even if her criminal conviction amounts to a known record to her detriment under the Policy:

(1) There were a number of extenuating circumstances in her case that were given no consideration by the Director in making the Decision.  The Director had therefore failed to take into account of relevant consideration for the Decision; or   

(2) If these circumstances had been taken into account, the Decision is one which is irrational in the public law sense, in that no reasonable decision maker could reach the Decision.

71.  The extenuating circumstances relied on by the applicant are set out in her skeleton submissions as follows:

(1) The applicant had been in Hong Kong for over 10 years;

(2) The relatively minor nature of the applicant’s criminality, as reflected in her having been fined the modest sum of $800.  It is also noted that the offence of which she was convicted is one of strict liability as to the element of knowledge that the duty on the cigarettes was unpaid[8];

(3) The fact that the applicant was a victim of Mr Meyer’s exploitation.  Having reposed trust in Mr Meyer, her long‑time employer, he very substantially betrayed that trust by instructing her to perform what he presumably knew was an illegal act.  It was Meyer who should bear the greatest responsibility for the offence – a fact implicitly acknowledged by his having paid the applicant’s bail and fine;

(4) The applicant’s guilty plea;

(5) The total lack of personal gain by the applicant from the offence; and

(6) The applicant’s otherwise good character and work record over 10 years working in Hong Kong.

72.  Again with respect to Mr Parker, I do not think this ground is made out.

73.  First, Mr Wong has affirmed that he had considered the following in coming to and confirming the Decision:

(1) The nature of her conviction and the fact she was fined $800 (as noted in §3 of the internal memo exhibited to Mr Wong’s affirmation);

(2) That the applicant allegedly bought the cigarettes at the request of the employer and the circumstances leading her to plead guilty (as mentioned in the Letter of 1 March 2011 which Mr Wong had read);

(3) Her lack of personal gain (which was alluded to in the Letter of 1 March 2011);

(4) The applicant’s previous good character and work record since 2000 (as also mentioned in the Letter of 1 March 2011).

74.  There is nothing to or that could challenge Mr Wong’s above evidence, which I accept.

75.  In the circumstances, all these “extenuating matters” had in fact been put forward in the materials submitted to Mr Wong when he considered confirming the Decision.  There are therefore no merits in the contention that the decision maker had failed to take into account of these relevant factors in making the Decision.

76.  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:

(1) 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[9].

(2) In the present case, the Director having formulated the Policy for FDH under which visas will not normally be granted to those who, inter alia, do not have a clear criminal record[10], is entitled to implement that policy.  For this purpose, it must be emphasised again that there is no challenge by the applicant to the Policy itself in the present application.

77.  I therefore also reject the applicant’s contention that the Decision is irrational.

D. CONCLUSION

78.  For all the above reasons, I do not accept any of the grounds raised in this judicial review and the application is dismissed.

79.  I further make an order nisi that costs of the application be to the Director to be taxed if not agreed, and that the applicant’s own costs be taxed in accordance with legal aid regulations.  This order shall be made absolute 14 days from today unless any of the parties applies to vary it by summons.

80.  Lastly, I thank counsel for their assistance.