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| The Court of First Instance quashed the legal challenge to Hong Kong's live-in policy for foreign domestic helpers |
By The SUN Staff
The Court of First Instance has rejected a Filipina maid’s application for a judicial review ofHong Kong ’s “live-in regulation”,
saying the applicant has not sufficiently proved that the policy is illegal and
breaches the rights of foreign domestic helpers.
Judge Anderson Chow said that the Immigration policy to let the
maids live with their employers is a matter that FDHs helpers could accept or
not, even before they come to Hong Kong .
“If, prior to coming to Hong Kong ,
he/she considers the Live-In Requirement to amount to an unacceptable invasion
of his/her personal or private rights, he/she can of course choose to remain
in his/her home country, or work in some
other countries which do not have such requirement,” said Judge Chow in his
judgment.
Then, after coming to Hong Kong ,
the FDW finds the policy unacceptable, he or she can still terminate the
employment contract by giving a month’s notice, said the judge.
The applicant, domestic helper Nancy A. Lubiano, sought a
judicial review of the rule in 2016, saying it was unconstitutional and
breached the rights of helpers.
On Sept. 13 last year, she sought to amend her notice for a
judicial review and serve a second affidavit in support of her application, but
both these were rejected by Judge Chow in his decision.
The judge also allowed a request by Lubiano’s lawyers that
her personal details be not disclosed to the public during the hearing of her
application.
The Filipina advanced four grounds to support her legal
challenge: 1) the Immigration Director does not have legal authority to impose
the live-in rule; 2) the requirement heightens the risk of a breach of
fundamental rights and is, therefore, unconstitutional; 3) the policy is discriminatory
against domestic helpers or migrant workers; and 4) the implementation of the
policy without any general exception is irrational and unlawful.
Chow said that the live-in requirement is a matter of
contract between the employer and FDH, and as between the employer/FDH and the Director,
it is an “undertaking” given by the former as an eligibility criterion for the
issuance of a FDH visa.
“The Applicant’s alternative argument is premised on the
assumption that the Director cannot impose the Live-in Requirement as a
condition of stay. I do not accept this contention,” said Chow.
He said the live-in requirement should be regarded as a “functional
requirement” of the FDH’s employment. The migrant workers were allowed to come
in to fill a vacuum left by local domestic workers who did not want to live
with their employers.
He noted that the live-in requirement has always been part
of the FDH importation scheme, but was only included as part of their
employment contracts on April 1, 2003.
However, a general exception was made at that time for
employers who obtained the Director of Immigration’s approval to let their FDHs
live out prior to this date. These employers are still allowed this exemption,
so long as they continue to employ helpers without a break of more than six
months.
“Currently, there are approximately only 30 such employers
being allowed to employ live-out FDHs,” said Judge Chow.
Regarding the issue of fundamental rights, the judge said
the applicant failed to show that the policy has given rise to a significant or
serious risk of violation of a fundamental right.
Paul Hsieh, SC, for the applicant, cited “servitude” and
“forced or compulsory labor” as the potential violations, but Chow said these
are not defined in the Hong Kong Bill of Rights.
On the ground that the policy is discriminatory, Chow said
there is enough relevant difference between FDHs and imported workers admitted
under the Supplementary Labor Scheme to justify the different treatment.
The judge said FDHs are admitted for the purpose of
providing live-in domestic service, so they are expected to live with their
employers, unlike other workers who are not admitted for such purpose.
“I do not consider the pursuit of societal interest in the
importation of workers to provide live-in domestic service in Hong
Kong can be said to result in an unacceptably harsh burden on FDHs,”
the judge said, rejecting Lubiano’s discrimination ground.
Chow also brushed aside the argument that the live-in
requirement heightens the risk of ill-treatment of FDHs by their employers.
“While the fact that the FDH is living in the employer’s
residence would mean that there may be more opportunities for the employer to
apply ill-treatment on FDH if the employer is minded to do so, I am by no means
satisfied that the risk of ill-treatment is unacceptably or significantly
increased by the fact that the FDH is living in the employer’s residence,” said
Chow.
He also dismissed the argument that the Director is being
irrational or is wrong in not using his discretion in allowing for exceptions
to the live-in requirement for FDHs.
Chow ordered Lubiano, who was on Legal Aid, to pay the costs
of the application. Lubiano was represented by Paul Hsieh SC
