MAURA JULIET A. RAQUIZA v. THE DIRECTOR OF IMMIGRATION

cacv 272/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 272 of 2006

(on appeal from HCAL NO. 20 of 2006)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Chu J given on 11 July 2006.  The matter before the judge was an application for judicial review.  An order for certiorari was sought to quash the decision of the Director of Immigration given on 4 May 2004 whereby the Director refused to grant an extension of stay.  The judge dismissed the application.  At the conclusion of the hearing of this appeal judgment was reserved.

Background

2.  On this appeal there was no dispute as to the facts found by the judge.  In brief, the applicant is a Philippine National who first came to Hong Kong on 26 August 1988 to work as a foreign domestic helper.  For that purpose she had an employment visa.  Her permission to stay in Hong Kong was extended at various times until 27 February 1992.  However, because her contract of employment was terminated in January of that year, her permission to stay was curtailed and she was permitted to remain in Hong Kong as a visitor until 28 January 1992.  In the intervening time she had signed a new contract of employment on 23 January 1992.  Having done that, she left Hong Kong on 26 January.  She then waited in the Philippines whilst the new employment contract was processed.

3.  It was not until 5 June 1992 that the applicant returned to Hong Kong, taking up her new employment as a foreign domestic helper.  Thereafter, as her contracts were renewed, her permission to stay was extended and the final permission to remain in Hong Kong as a foreign domestic helper was extended until 15 July 1997.

4.  On 15 October 1996 the applicant married a Hong Kong permanent resident.  That marriage, unfortunately, did not last long.  The husband moved out of the matrimonial home in December 1997 and in January 1999 he petitioned for divorce.  It would seem that in May 1999 the applicant and her husband had reached some agreement whereby the divorce petition would be withdrawn and the husband would sponsor the applicant’s application for renewal of her dependent visa.

5.  In the meantime, on 14 April 1997 the applicant had been allowed to change her immigration status to take up residence in Hong Kong as the dependent of her husband.  The initial permission to remain on that basis was until 15 March 1998.  On 20 March 1998 that permission was extended until 15 March 2000 and on 27 March 2000 her dependent visa was extended until 15 March 2003.

6.  After the breakup of the marriage, the applicant applied on 16 May 2001 for unconditional stay on the basis of having resided in Hong Kong as a dependent for more than three years.  That application was treated as abandoned in August of the following year because the applicant did not attend the interviews requested by the Director.

7.  Just before the permission to remain until 15 March 2003 expired the applicant sought assistance from a firm of solicitors.  With the solicitors’ help further applications were made on alternative bases.  The first was that the application was made with the support of her husband as her sponsor and the other on her own sponsorship.

8.  Whilst those applications were in the process of being reviewed the husband was apparently re-contacted.  He indicated his willingness to support the application and on 9 June 2003 the applicant and her husband attended the Immigration Department and were interviewed separately.  The husband indicated he would like to reunite with the applicant and would continue to support her stay in Hong Kong, but on the same day, the applicant wrote a letter indicating that she wanted to file for divorce and did not want a dependent visa.  She requested an extension of one month to enable her to make arrangements in relation to her MPF and to file for divorce.

9.  The judge recorded that the applicant regretted that move soon afterwards but that it did reflect her feelings at the time, which were prompted by the fact that she felt that she had been insulted by her husband.  The applicant was granted an extension until 9 July 2003 as requested in her letter of 9 June.  Further extensions were requested and duly refused.

The judgment below

10.  The applicant relied on Article 24(4) of the Basic Law as giving her a right to remain in Hong Kong as a permanent resident.  The relevant provisions read:

“	The permanent residents of the Hong Kong Special Administrative Region shall be:
	……
	(4)	Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region”

11.  The judge then went on to consider section 2(4) of the Immigration Ordinance Cap. 115 (“the Ordinance”).  Section 2(4)(a)(iv) reads as follows:

“	(4)	For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong-
		(a)	during any period in which he remains in Hong Kong-
			……
			(vi)	while employed as a domestic helper who is from outside Hong Kong”

12.  On the two issues that were argued, the judge held that, in the first place, the applicant’s residence in Hong Kong was broken between 27 January and 4 June 1992 when she was not in Hong Kong and did not have permission to remain in Hong Kong.  On that basis she was not resident and could not have been resident in Hong Kong.  Hence there was no continuous period of residence, still less ordinary residence, commencing from August 1988.

13.  On the second issue argued, namely as to whether the period when the applicant was a foreign domestic helper prior to 1 July 1997, when the provisions of section 2(4)(a)(iv) came into force, could be taken into account.  The judge held that the wording of the Ordinance was clear that the period had to be excluded when calculating the period of ordinary residence and that that construction was confirmed by comparison with the previous version of section 2(4)(a) prior to the amendment.

14.  The judge rejected the argument that the statute should not be interpreted retrospectively so as to impair an existing right because prior to the 1997 amendment, under Schedule 1 of the Immigration Ordinance, a non-Chinese National could not acquire permanent residence even though he had continuously ordinarily resided in Hong Kong for seven years or more.  Hence there was no question of impairment of any existing or accrued right.

15.  As the judge pointed out, her finding in respect of the construction issue rendered unnecessary the further argument that it was the duty of the Director to inform or alert the applicant as to her rights as having been ordinarily resident in Hong Kong for a continuous period of seven years or more.  The judge, however, went on to consider that matter and held that the Director did not have a duty, either generally or in the context of the particular case, as contended for by the applicant.

This appeal

16.  On this appeal Mr Dykes SC, who appeared on behalf of the applicant in this court but not in the court below, sought to argue on a construction of the Ordinance that it should not be given retrospective effect.  Two subsidiary points were also argued but were only relevant should he succeed on the first point.  Those points were that the judge had been wrong to hold that the period of ordinary residence had been broken in 1992 and had also been wrong in failing to hold that the Director had a duty to advise the applicant as to her rights as to being a permanent resident.

17.  It became clear in the course of argument that Mr Dykes’ main point verged on arguing that section 2(4)(a)(iv) was invalid in view of Article 24(4) of the Basic Law.  That was a point which had not been taken either in the application for judicial review, the court below or in the notice of appeal.  Furthermore, in the opening paragraph of the skeleton for this appeal it had been said that “Underlying broader constitutional issues do not arise in this case.”   The footnote specifically said that the skeleton argument assumed the constitutionality of section 2(4) without conceding the point.

18.  When the matter was pointed out by the court, application was made for the notice of appeal to be amended and for there to be an adjournment to allow the Director to prepare the case to meet this challenge.  That application was refused.  In the first place the argument appeared to be hypothetical in that the only argument put as to invalidity was in respect of persons of Chinese race who had come to Hong Kong as foreign domestic helpers from countries other than China.  Whether or not there were any such persons who would now be affected is simply not known.  Perhaps more importantly, however, the step of striking down legislation as being unconstitutional is a grave step which should only be taken on mature consideration with the court being given all the assistance possible.  In the present circumstances it appeared to be highly undesirable to allow such a point to be taken belatedly with an adjournment being required in this court.  It might be added that no amendment to the notice of appeal had been presented to the court.

19.  The main argument in this court, therefore, turned on the question as to the construction of section 2(4)(a)(iv) because, on any footing, the applicant would have to take into account a period when she was a foreign domestic helper prior to 1997 in order to have a period of seven years prior to June 2003 when she was resident in Hong Kong.  In my view the provisions of the Ordinance are clear.  A period when an applicant is a foreign domestic helper cannot be taken into account as being a period of ordinary residence whether that occurred before or after the coming into force of the subsection on 1 July 1997.

20.  As the judge held there is no question of any retroactive effect of the Ordinance since prior to 1 July 1997 the applicant could not have become a permanent resident in view of the fact that she could not have brought herself within the provisions of the then existing Schedule 1 of the Ordinance.

21.  In those circumstances the subsidiary points which were argued do not have any bearing.  It suffices to say that, on any footing, any period of ordinary residence must have ceased between 27 January and 4 June 1992 since quite apart from the fact that the applicant was not in Hong Kong she had no right or permission to be in Hong Kong at that stage.  Hence it would have been impossible for her to have been ordinarily resident.  Furthermore, since the applicant had no rights of which she could be advised, any argument as to an obligation on the part of the Director to give advice as to her rights cannot arise.

22.  In those circumstances, I consider this appeal must be dismissed with an order nisi of costs in favour of the Director.

Hon Le Pichon JA:

23.  I agree.

Hon Sakhrani J:

24.  I also agree.