Conform to the norm: less favourable treatment and “conventional standards” in Long Hair v CCS on appeal

There is a problem with the statutory torts of discrimination. Direct differential treatment may not be justified and is ipso facto prohibited. There being no analytical space to extenuate less favourable treatment on account of a protected characteristic, explanations offered by respondents for treatment – in reality justifications – are often squeezed into consideration of... Continue Reading →


Lubiano #3 ~ means, ends and orthodox Wednesbury

In this third post on the Lubiano/live-in rule decision, I look at the rationale behind the Director's policy of insisting that entrants to Hong Kong on foreign domestic helper visas live with their employers. I suggest that the policy does not survive scrutiny under orthodox Wednesbury/rationality analysis, regardless of whether fundamental rights precepts are in... Continue Reading →

Lubiano #2 ~ private actors and positive obligations

In this second post on the live-in rule decision I look at the substance of Ms Lubiano’s fundamental rights argument: that by requiring persons admitted under the Foreign Domestic Helper scheme to live-in with their employers, the Director unacceptably or significantly increases the risk that they will be subject to fundamental rights abuses, and thus... Continue Reading →

Domestic errors of international law: persecution risk and the powerful effect of substantive fairness

Four recent non-refoulement decisions illustrate how powerful the administrative law obligations of fairness have become in the context of persecution risk. It seems clear that that the “high standards of fairness” doctrine from Prabakar (2004) 7 HKCFAR 187, [2004] HKCFA 43, extended to refugee claims in C and Others  (2013) 16 HKCFAR 280, [2013] HKCFA... Continue Reading →

Lubiano #1 ~ can I get a fundamental right?

The first instance decision in last year’s systemic challenge to the live-in rule is down: Lubiano v Director of Immigration [2018] HKCFI 331. The application covers a lot of law. In these first two posts I address the application's central contention: that by requiring persons admitted under the Foreign Domestic Helper scheme to live-in with their... Continue Reading →

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