Options for Final Appeal Transcript -
for those people who prefer to read, rather than
watch, the contents of the Hong kong Visa Handbook,
we have prepared the following transcript of the
A/V dialogue of our presentation Investment Visa
- Preparing
Your Case
Until 1999, section 53 of the Immigration Ordinance
was widely used as a means of final appeal for a
large number of refused visa applicants as the mechanism
allowed the applicant to remain in Hong Kong as
a visitor pending the final review process which
often took 12-24 months. This liberal application
of policy was almost inevitably abused. It had the
effect of enabling employment visa applications
from people who really didn’t have much chance of
satisfying the approvability test but came to Hong
Kong as visitors, applied for a change of status
while in Hong Kong, and then used the fact of their
application pending as a means to secure a de facto
extension to their visitor visa all throughout.
For some nationalities, particularly those from
the subcontinent, this manipulation of the processing
and consideration mechanisms meant that often two
to two and half years would pass before the entire
application consideration process from initial submission
through to final review report was finalized. In
this time, such applicants were physically present
in Hong Kong and the temptation for them to breach
their conditions of stay by taking up employment
unauthorized by the Immigration Department was manifest.
Some might say the process was simply misused by
the applicants. Nevertheless, at a stroke, one day
in 1999, the Immigration Department changed the
policy and no longer extended the visitor visas
to applicants who are undergoing section 53 review.
These had the effect of diminishing the role of
section 53 considerably for disgruntled employment
visa applicants and consequently tends not to play
a significant part in the practice of Hong Kong
Immigration advisers these days.
We have included the possibility of a final throw-yourself-at-the-feet-of-the-chief
executive appeal as we have once in 30 years of
combined practice had the opportunity to travel
this route and was successful in the process. It
must be stressed, however, that there must be a
substantial matter of public interest at stake and
such an application should not be made lightly.
Frivolous applicants will simply not be entertained
and will no doubt have an adverse impact on their
immigration record. At some stage, the Immigration
Department will have fully played out their role
in considering your application and it does inevitably
come a time when the result really is final.
So, in the two years, just prior to the 1997 hand
back to China, Hong Kong’s economy was booming.
These positive economic conditions naturally enough
coloured the Immigration Department’s view of the
world and impacted on how they viewed implementation
of visa policy. However, quite soon after the handover,
Asia slipped into a deep economic crises led by
Thailand and Hong Kong went into deep slump as it
played itself out. In this time we had a client
who was an operator of specialty bookshops in another
Asian country. This client’s operations were very
large and they were investment bank backed candidates
for public listing in their home country. This client’s
bookshops were revolutionary in how they retail
books. They display the books on the shelves in
a non-traditional way and employ people to work
in their shops who are experts in a particular field.
In fact a necessary condition of employment is that
you read one book a week from the dedicated section
of the shop that you service. This will enable you
to talk knowledgeably to customers and genuinely
help them make the right book choice and compared
to traditional book retail was revolutionary, taking
the region by storm - and Hong Kong was next.
In the beginning of 1997, our client opened their
first of four initial outlets in Hong Kong and they
were planning on a final total of 12 over a 3-year
investment period. The business plan called for
the creation of at least 150 new jobs. In the latter
part of 1997, when the financial crisis was biting
hard, our client had an employment visa application
issue for one of their managers who was transferring
to Hong Kong from the home country operation to
open a second shop in the HKSAR. Upon review of
the paperwork, it became apparent to us that the
problem lay in the fact that the local Hong Kong
staffer who had crafted the application had treated
the case merely as an administrative one and had
not made any effort to substantiate the argument
within the context of our client’s business operations.
The job title of ‘book-seller’ for the manager as
it was detailed on his letter of appointment, was
actually not only an exercise in branding but also
descriptive of a new definition which our client’s
mode of retailing book represented for people who
sold books. So, we made a confident application
for reconsideration which was refused within two
weeks. We were dumbfounded as was our client. We
submitted a further reconsideration which in and
of itself was especially unusual. Two weeks later,
no change in mind on the part of the Immigration
Department. In the meantime, our client was getting
very upset. His manager was due to oversee the opening
of the new bookshop in three weeks and everything
was a mess, books were arriving and were not being
placed on shelves and new staffs were unable to
be trained. Chaos reigned large and the client was
seriously thinking that they would pull the rest
of their investment from Hong Kong. As the posture
of the Immigration Department, they were locked
into the idea that a book-seller is a simple job
that anyone local could do, and it was actually
making it impossible for them to deliver on their
investment plan and all this was happening at a
time when Hong Kong was loosing 5,000 retail jobs
a week due to the economic downturn. When it became
apparent that the Immigration Department wouldn’t
budge we decided to appeal directly to the Chief
Executive. Long story short, the visa was approved
within five days of having lodged the appeal.