By Daisy CL Mandap
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| The High Court put an end to the first case for FDW residency filed in Sept 2003 |
The High Court has finally closed the door on the last
remaining challenge to the Immigration Director’s decision to stop foreign
domestic workers from acquiring permanent residency in Hong Kong.
In a written judgment handed down on Wednesday, Jan
12, Judge Russell Coleman cited the failure for Filipina former domestic worker Julita F. Raza to pursue
a case she filed as long ago as Sept 25, 2003 for his decision to dismiss the
case.
Judge Coleman also pointed out that the issues raised
by Raza were rendered moot by the 2013 Court of Appeal ruling in the case of Vallejos v Commissioner of Registration that foreign domestic
helpers cannot acquire permanent residency.
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Raza first gained prominence when she filed, along with
four veteran Filipina migrant workers, a challenge to the Hong Kong government’s
decision in February 2003 to cut the salary of FDWs by $400 and impose a levy
on their employers in the same amount. That bid was also thrown by the Court of
Appeal in July 2016.
In a subsequent case filed in the same year, Raza sought leave from
the court to apply for a judicial review of the Immigration Director’s refusal
to verify that she was entitled to a permanent identity card.
Raza wanted to challenge the Director’s decision that
she could not be treated as ordinarily resident in Hong Kong, meaning she needed
only to live in the city for at least seven years to qualify; and that she had
not taken Hong Kong as her place of permanent residence.
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In what was then hailed as a landmark decision, Judge
Michael Hartmann ruled on Sept 26, 2003 that Raza, who had by then worked in
Hong Kong for more than eight years, could apply for a judicial review of the
Director’s decision.
However, during arguments on May 17, 2014, the judge
ordered that the application for judicial review be adjourned sine die (to an
unspecified later time) while Raza first exercised her right to appeal her case
to the Registration of Persons Tribunal.
On the same day, Raza applied for a Hong Kong
permanent identity card but was refused. As a result, she filed an appeal to
Tribunal on May 21, 2004. This appeal was dismissed by the Tribunal on Jan 6,
2006.
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Since then, Raza had taken no action to revive her
application for judicial review.
Records kept by the Immigration Department showed she
left Hong Kong on Mar 30, 2006 and never came back to live here for work or any
other reason. After that she came to visit on 11 different occasions but ceased
coming back after Sept 20, 2017.
Since 2006, when the Tribunal declined her appeal
against the Director’s decision not to allow her to acquire a permanent HK ID
card she made no effort to restore the application for judicial review, despite
visiting a couple of times.
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She also no longer had solicitors representing her as
a Legal Aid Certificate granted in her case expired on Dec 14, 2006.
Using these as grounds, the Director, through government
counsel Gilbert Mok, asked the court to stop serving summons to Raza and for
her application for judicial review to be dismissed for want of prosecution and
lack of utility.
Mok argued that there had been an unreasonable and
inexcusable delay on Raza’s part to restore her case. She left three months
after her appeal was dismissed almost 16 years ago, and made no effort to
pursue her case even though she made a couple of visits afterwards.
In addition, Raza was no longer represented in the
proceeding. Her last known address in Hong Kong was no longer valid, as it was
the home of her last employer, while the Philippine address she supplied to court
was not complete as it only named a particular municipality in a province
Judge Coleman said he accepted the arguments, adding
that “the applicant clearly has no continuing intention to prosecute these
proceedings.”
“In my view, the delay is both inordinate and
inexcusable, and in the overall context – which includes the point as to lack
of utility – these proceedings can, at least at this point in time,
be seen to be an abuse,” he added.
Equally important, the judge said the case had to be
dismissed because the Court of Appeal ruling in the Vallejos case denying residency to FDWs had become final and executory.
That decision meant that the ground on
which Judge Hartmann had initially granted leave to challenge the Director’s
decision, “no longer holds good,” said the judge.
He ordered costs to be paid to the respondent Director
by the applicant, whose own costs in turn will be taxed in accordance with Legal
Aid Regulations.
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| PADALA NA! |
