Case note: Lubiano v The Director of Immigration HCAL 210/2016
In Lubiano v The Director of Immigration HCAL 210/2016, the Hong Kong Court of First Instance considered a judicial review application for the ‘Live-in Requirement’ applicable to Foreign Domestic Workers (FDWs). There are over 357,000 Foreign Domestic Workers in Hong Kong, mostly coming from the Philippines and Indonesia (as of March 2017). They are admitted to work under the FDW scheme, which was set up in 1969 to meet local demand for full-time domestic services, typically for household chores and child or elderly care. The ‘Live-in Requirement’ is a key feature of the Standard Employment Contract of the FDW scheme: it dictates that FDWs must live in their employer’s residence where they work. In Lubiano, the second of the four grounds for review advanced by the Applicant is that the Live-in requirement exposes FDWs to a heightened risk of their fundamental rights being violated in a manner that is disproportionate and therefore unconstitutional. The analysis which lead the court to dismiss the ground is of particular interest in this article.
First, the court examined the preliminary question of what fundamental rights FDWs hold (if any). The first group of rights considered were those contained within the Hong Kong Bill of Rights (BoR), which prohibits “servitude” under Article 4(2) and “forced or compulsory labour” under Article 4(3)(a). The court found that FDWs were precluded from relying on this group of rights due to Section 11 of the Hong Kong Bill of Rights Ordinance Cap 383 (HKBORO), which states that:
“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation”.
In the earlier case of Ubamaka  HKCFA 87, it was held that certain rights (specifically those under Article 3 of the BoR against torture and inhumane treatment) were non-derogable (as established in Section 5(2)(c) of the HKBORO) and absolute, and therefore excepted from the scope of Section 11. However, the court purported to distinguish Ubamaka from the present case. First, it highlighted that although Section 5(2) of the HKBORO qualifies Article 4(2) of the BoR as “non-derogable”, Ribeiro PJ in Ubamaka was “at pains to emphasise that the analysis [in Ubamaka regarding Article 3] does not necessarily apply to other rights listed in Section 5(2)” [Lubiano at 98, Ubamaka at 134-140]. Additionally, Section 5(2) does not cover Article 4(3)(a) of the BoR. Second, it asserted that both Article 4(2) and Article 4(3)(a) “[are] not, or [have] not been proven to be, ‘absolute’” [Lubiano at 98(1), (2)]. However, an examination of the reasoning in Ubamaka reveals that the assessment of whether the rights in question were ‘absolute’ was based on precedents from the European Court of Human Rights (ECtHR) and the UK Supreme Court [Ubamaka at 7, 106]. Taking the same route in the present case, based on the ECtHR case Siliadin v. France (Application no. 73316/01), rights under Article 4 of the European Convention of Human Rights (which corresponds to Article 4 of the BoR) are also considered ‘absolute’. The judge in Lubiano failed to address Article 3 and Article 4’s similar status in foreign precedents, and why he nevertheless considered Article 4 not to be absolute. This leaves ample room for one to question the judge’s purported distinction between Lubiano and Ubamaka, upon which the Section 11 preclusion of FDWs from this first group of rights is based.
Additionally, the court made the prima facie assumption that Section 11 does apply to FDWs, thereby ignoring the other issue which Ubamaka raises, namely that Section 11 only applies to “persons not having the right to enter and remain in Hong Kong”. In Ubamaka, the court indicated that Section 11 does not apply to permanent residents or “Hong Kong residents or others who are lawfully entitled to be in Hong Kong” . Similarly, in Bahadur v Director of Immigration (2002) 5 HKCFAR 480, the court found that the decision to deny re-entry to a non-permanent resident who left Hong Kong territory within his limit of stay was unlawful because bringing short his limit of stay infringed his rights to travel and enter under Article 31 of the Basic Law. The judgement was based on the assumption that the decision to deny re-entry was not precluded by Section 11, because non-permanent residents have the “right to enter and remain in Hong Kong”. What then remains to be established is whether there is a distinction between an FDW and a non-permanent resident: both are admitted into Hong Kong for a period of time and can leave then re-enter any time within that period, as opposed to a visitor whose visa lapses upon exit, or someone who enters unlawfully. The court’s assumption that Section 11 applies is a procedural error in law that weakens its ultimate conclusion that FDWs cannot access this first group of fundamental rights.
Regarding other potentially accessible rights, the court considered an alleged international customary rule prohibiting forced labour put forth by the Applicant. But the court rightly found that under the Basic Law that it would not be within its competence to declare and enforce international customary law. The court also considered alleged rights to safe and healthy working conditions, adequate rest, leisure, limitation on working hours, and periodic holidays with pay under Article 7(b) and (d) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as Article 6(1)(a)(i) of the Migration for Employment Convention 1949 (MEC). But, again, it found that although these provisions were applicable to Hong Kong as a matter of international law, they could not be enforced or relied upon within the domestic court without having been implemented by domestic law. Thus, the court concluded that on the preliminary question of what applicable fundamental rights FDWs have access to, the answer was that there were none.
Nevertheless, the court went on to consider the hypothetical effect of the aforementioned rights on the Applicant’s central claim: that the Live-in Requirement exposes FDWs to a heightened risk of their engaged fundamental rights being violated in a manner that is disproportionate and therefore unconstitutional. Unlike orthodox fundamental rights claims, this claim presumes that the court has the jurisdiction to review the constitutionality of a governmental measure on the basis that it increases the risk of violation of a fundamental right. The court acknowledged that there are overseas authorities supporting this principle, but emphasised that there is “no local decision which directly applies” [Lubiano at 55]. However, as the Respondent in the present case did not dispute that such a principle exists, the court “proceed[ed] on the assumption (without deciding)” (ibid at ; emphasis added) that a governmental measure may be challenged on constitutional grounds if it increases the risk of violation of a fundamental right, but only when it does so “unacceptably” or “significantly” (as qualified by the Respondent; ibid at ). In purposefully “[not] deciding” if this principle actually exists under Hong Kong law, the court missed a key opportunity to examine whether Hong Kong could follow overseas authorities in developing an overriding principle that a system is unlawful if it carries, inherent within it, an unacceptable risk of illegality.
Finally, the court evaluated whether there was in fact sufficient evidence to hypothetically support the claim that the Live-in Requirement “unacceptably” or “significantly” heightens the risk of violating the fundamental rights of FDWs. The court here examined several pieces of evidence, ranging from previous cases of FDW abuse by employers to studies and surveys carried out by non-governmental organisations. The court concluded that there was not sufficient evidence to sustain the claim. However, the analysis employed by the court in coming to this conclusion raises the question of whether it was even within the court’s competence to make such an assessment. Regarding the case example of Erwiana Sulistyaningsih, who suffered grievous bodily harm at the hands of her employer, it was pointed out that since the nature of providing domestic service requires the FDW to work at the employer’s residence, the Live-in Requirement only increases the number of opportunities available to the employer to abuse the FDW. Yet, the court asserted that it was “by no means satisfied” that the risk of ill-treatment was unacceptably or significantly increased [Lubiano at 82]. It is unclear upon what evidential basis this later conclusion was reached, which is particularly disquieting when the court is not an expert in this area. Similarly, regarding a study conducted by the Justice Centre on the prevalence of forced labour in Hong Kong, the court considered that the majority of the indicators used by the study “[…] cannot, in [its] view, be attributed to the Live-in Requirement” [Lubiano at 91(3)(c)]. Again, the court appears to have reached a conclusion which it may not have been qualified to reach. Thus, the court’s analysis here exposes the potential dangers of substantive review.
In conclusion, the court in Lubiano decided that the potential heightened risk of a fundamental rights violation is not a sufficient deterrent for the implementation of a governmental measure. Skirting several key issues, while overstepping its competence in others, the court showed Hong Kong the lengths to which it is prepared to go in order to protect the existing measures of the FDW scheme.