Shah Rabia and Others v. Director of Immigration

HCAL 663/2023

[2023] HKCFI 1686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 663 OF 2023

________________________

________________

_________________

D E C I S I O N

_________________

A. Introduction

1.By an Amended Form 86 dated 16 June 2023, the Applicants seek leave to apply for judicial review against three decisions (collectively “Decisions”) of the putative respondent Director of Immigration, being:

(1)  the decision dated 29 September 2022, refusing the Applicants’ applications for extension of stay (“1^st Decision”);

(2)  the decision dated 24 April 2023, refusing the Applicants’ applications for reconsideration of the 1^st Decision (“2^nd Decision”); and

(3)  the decision dated 24 April 2023, asking the Applicants to leave Hong Kong on or before 8 May 2023 (“3^rd Decision”).

2.The amendments made to the original Form 86 followed a directions hearing held on 17 May 2023. The application for leave to apply for judicial review was heard on 27 June 2023. At that hearing, the Applicants were represented by Mr Calvin Law of Counsel, and the Director by Mr Andrew Tong, Senior Government Counsel (acting).

3.This is my Decision.

B.  Background

4.The Applicants are siblings, and are respectively the daughter (“A1”) and sons (“A2”, “A3”, and “A4”) of the late Mr Ahmad Shah (“Father”).

5.The Applicants are nationals of Pakistan, born in Pakistan on 23 March 2003, 27 July 2004, 2 February 2006 and 21 March 2010 respectively. Hence, the Applicants are aged 20, 18, 17 and 13 years old respectively.

6.On 8 January 2015, the Applicant entered Hong Kong on the strength of dependant visas, being permitted to remain in Hong Kong as dependants of the Father until 8 January 2016. Subsequent extensions of stay were granted to the Applicants under the same sponsorship of the Father, the last limit of stay being extended until 8 December 2021.

7.The duration of the Applicants’ stays in Hong Kong in the whole period between 8 January 2015 and 8 December 2021 (a period of 6 years and 11 months, or around 2,525 days) were:

(1)  A1 – 601 days;

(2)  A2 – 1303 days;

(3)  A3 – 88 days; and

(4)  A4 – 88 days.

8.The materials also identify that – prior to making the applications leading to the decision the subject of intended challenge – the Applicants last departed Hong Kong on 17 December 2018, and only returned on 1 December 2021, very shortly before the expiry of the last limit of stay on 8 December 2021, and apparently for the purpose of making those applications on that date of expiry (see below).

9.The Father passed away on 18 February 2019, prior to the expiry of the last limit of stay on 8 December 2021.

10.On 8 December 2021, by two solicitors’ letters: (1) A1 applied for extension of stay on her own merits, without sponsorship, and (2) A2, A3 and A4 applied for extension of stay with the request of change of sponsorship from the late Father to their paternal uncle (“Uncle”).

11.The Uncle is a Hong Kong resident, with permission to remain in Hong Kong for employment under the General Employment Policy, where his limit of stay was last extended until 19 September 2024.

12.Amongst the documents provided with the solicitors’ letters and relevant application forms of the Applicants were: (1) a death certificate showing the wife of the Father and mother of the Applicants passed away in Pakistan on 31 January 2014; (2) a certified copy of the relevant registry entry showing that the Father passed away in Hong Kong on 18 February 2019; (3) a Guardian Certificate issued by a Judge Family Court-II dated 24 July 2020, showing that the Uncle and the Applicants’ grandmother (“Grandmother”) were appointed as the guardians of the Applicants under Pakistani law; and (4) a copy of the Pakistani passport and Hong Kong Identity Card of the Uncle.

13.Subsequent correspondence was exchanged between the Applicants’ solicitors and the Immigration Department (“ImmD”), mainly being requests for and the provision of further information or supporting documents.

14.By the 1^st Decision – the full details of which consideration are set out separately below, by reference to internal minute M.1 – the Director was not satisfied that the Applicants were able to meet the eligibility criteria under the dependant policy, broadly on the basis that:

(1)  The absence of sponsorship by the late Father rendered the applications outside the dependant visa policy, with no other eligible sponsor provided.

(2)  The Applicants were taken care of by the Grandmother in Pakistan, while they continued their studies. They became orphans after the death of their parents, and came to Hong Kong to join their Uncle who is resident in Hong Kong.

(3)  Since the activation of their entry dependant visas on 8 January 2015, the Applicants were absent from Hong Kong for periods between 3.3 and 6.7 years, because they were studying and were taken care of by the Grandmother in Pakistan. There is no indication that they could not go back to Pakistan and lived there.

(4)  Substantial changes in respect of the Applicants were revealed, and there were no extenuating grounds warranting an exceptional consideration for departure from the existing dependant policy.

15.On 6 October 2022, the Applicants requested reconsideration of the 1^st Decision, and also made a data access request, following which they were provided with the internal minute M.1 identifying the consideration leading to the 1^st Decision.

16.On 11 November 2022, the Applicants’ solicitors submitted additional documents and information in support of the reconsideration request. That included that: (1) the lengthy absence of the Applicants from Hong Kong was due to the difficulty in adapting to the local education system, hence the decision to pursue studies in Pakistan; (2) the Grandmother was over 70 years old and unable to take care of the Applicants; (3) A1 and A2 are now adults and are financially sustainable, having been offered potential employment in the late Father’s business, now being looked after by the Uncle; and (4) the application for grant of probate in relation to the late Father was pending adjudication in the High Court.

17.By the 2^nd Decision – the full details of which consideration are set out separately below, by reference to internal minute M.2 – the Director was not satisfied that the Applicants had provided information and documents warranting a reversal of the 1^st Decision, broadly on the basis that:

(1)  Some of the documents had already been submitted in the earlier Applications.

(2)  Some of the documents were updated versions of documents previously submitted.

(3)  The employment situation of the Uncle had already been taken into consideration in the assessment leading to the 1^st Decision.

(4)  A1 and A2 are able-bodied adults who can take care of themselves, as well as take up employment in Pakistan.

(5)  The Applicants had spent the majority of their time living and studying in Pakistan, and there was no indication that they could not go back to Pakistan. Apparent self-sustainability in Hong Kong did not constitute a ground for considering an application falling outside the prevailing policy.

(6)  No fresh ground or new matters had been raised justifying a reversal of the 1^st Decision.

18.By the same letter dated 24 April 2023 as notified the 2^nd Decision, the Applicants were required to leave Hong Kong on a before 8 May 2023 (i.e. the 3^rd Decision).

C.  The Policy

19.As has been frequently set out in previous decisions of this Court, the Director’s policy for dependant visa applications is contained in the ‘Guidebook for Entry for Residence as Dependants in Hong Kong’ ID(E) 998 (1/2021) (“Guidebook”).

20.Paragraph 3 of the Guidebook identifies one of the eligibility criteria for a dependant to apply to join the sponsor – who has been admitted into the HKSAR to take up employment, or studies, or who is permitted to remain as an entrant under various identified entrant schemes – that the claimed dependant of the sponsor is

(a)     (i) his/her spouse;

(ii) the other party to a same-sex civil partnership, same-sex or union, “same-sex marriage”, opposite-sex civil partnership or opposite-sex civil union entered into by him/her in accordance with the local law in force of the place of celebration and with such status being legally and officially recognised by the local authorities of the place of celebration; and

(b)     his/her unmarried dependent children under the age of 18.

21.Applications for extension of dependant visa permission to stay will only be considered when the applicant continues to meet the eligibility criteria for entry for residence as a dependant. As a result, for example, the death of the sponsor will end that basis of eligibility.

22.Further, the question of whether a visa for residence should be extended is a matter falling within the broad discretionary powers of the Director in his exercise of immigration control. The wide margin of appreciation accorded the Director by the Court has long been recognised. Therefore, it is not the Court’s function on an application for judicial review to re-examine a visa application on its merits, and the Court may only intervene if the decision being challenged can be faulted in the public law sense. Any challenge on the ground of irrationality faces a very high threshold.

23.It is also settled that the Director is under no legal duty to consider humanitarian or compassionate grounds when making immigration decisions. However, to the extent that the Director does take into account those factors, the weight to be given to them is also a matter for the Director (and not the Court) – subject only to a Wednesbury unreasonableness challenge.

D.  The Decisions in detail

24.As indicated above, the detail of the Decisions is to be found in the relevant internal memoranda.

25.Memorandum M.1 deals with the consideration of the applications leading to the 1^st Decision, as follows:

This case concerns the above subjects (S1 to S4), siblings from the same family, who applied for extension of stay in Hong Kong on own merits via their legal representative, C.M. Chow & Co. (“L/R”) on 08-12-2021 due to the death of their sponsoring father, Mr AHMAD-SHAH holder of HKPIC no. R246975(7) (“Mr AHMAD”).

Case background

2. In 12/2014, S1 to S4 were first approved entry dependant visas to join Mr AHMAD as his dependants in Hong Kong after the death of their mother, Ms ZAR Bibi, in Pakistan in 01/2014, mother’s death certificate at encl. (16). The siblings first entered Hong Kong o.s.o. the dependant visas on 08-01-2015. Subsequent extensions of stay were granted to S1 to S4 under the same sponsorship in 01/2016 and 12/2018 with L/S last extended till 08-12-2021.

3. On 08-12-2021, S1 to S4 submitted extension of stay applications without eligible sponsorship due to the death of Mr AHMAD on 18-12-2019 in Hong Kong. The cause of death was ischaemic heart disease with the death certificate submitted at encl. (15). Mr AHMAD died at the age of 41.

Movement check

4. S1 to S4’s movements in the period from the activation of entry dependant visa on 08-01-2015 until their last L/S on 08-12-2021 (6 years and 11 months) are summarized as follows:-

	Duration of staying in HK (days)	Absence from HK (years)
S1	601	~5.3
S2	1303	~3.3
S3	88	~6.7
S4	88	~6.7

5. S1 to S4 last departed HK on 17-12-2018 and returned on 01-12-2021.

Family and academic background

6. S1 to S4 were born in Pakistan within wedlock of Mr AHMAD and his 1^st wife Ms ZAR Bibi. S1 to S4 were 19 years old, 18 years old, 16 years old, and 12 years old respectively. The death of their parents rendered the children orphans, and they were put under guardianship of their grandmother Ms NIAZ Bibi and under, Mr SHAH Neekmat (“Mr NEEKMAT”), see guardianship certificate at (19). Mr NEEKMAT is a resident of R2E status in Hong Kong, encl. (17)-(18).

7. S1 to S4 have been continuing their studies in Pakistan despite their residence status in Hong Kong since 01/2015, see their school leaving certificates and academic reports at encl. (63) & (68).

Reasons for remaining in HK

8. As stated in L/R’s letters at encl. (26) and (48) & (55), the siblings were taken care of their grandmother in Pakistan while they continued their studies. However, as the grandmother became older and had health problems, and S1 had finished her secondary education, the siblings returned to Hong Kong to be under the guardianship of their uncle Mr NEEKMAT who is a resident (under GEP) in Hong Kong. He has been sponsored by Shahjee International Trade Limited (“the Company”) as the Director. The Company was owned by the late Mr AHMAD, encl. (54) & (73).

9. Mr NEEKMAT has been managing the Company since 07/2017 as the Director of the Company. After the death of Mr AHMAD, Mr NEEKMAT became one of the guardian of the siblings, the other guardian is the grandmother. And S1 has secured potential employment in Hong Kong with salary HK$18,000. There was no known record of any serious crime against S1 to S4.

Assets of Mr AHMAD (siblings’ late father)

10. According to the submitted will of late Mr AHMAD dated 30-10-2018 at encl.(71), Mr AHMAD made a will and nominated S1 to S4 entitled for all tangible and intangible assets, including his property and savings. And according to the submitted bank statements of Mr AHMAD at encl.(67), he maintained a balance of HK$588,148 as on 01-12-2021 in a HSBC bank account.

11. As per letter from L/R dated 05-07-2022 at encl.(66), L/R is preparing the probate application for the grant of probate of Mr AHMAD.

Background of Mr NEEKMAT (siblings’ uncle)

12. According to APPLIES record, Mr NEEKMAT was approved of entry employment visa under the sponsorship of the Company as a business development manager in 06/2017. His R2E L/S was last extended until 19-09-2024 as the director of the Company with monthly salary at HK$25,000.

13. As per the submitted ID520 at encl.(38), Mr NEEKMAT’s wife and 7 children are currently in Pakistan.

Employment of S1

14. As per company letter dated 01-06-2022 by the Company, it was stated that S1 was offered a job as assistant secretary with monthly salary at HK$18,000 upon the approval of her visa application, encl.(62) refers.

Accommodation arrangement

15. As stated in L/R’s letters at encl. (26) and (48) & (55), after S1 finishing her secondary education, the siblings returned to Hong Kong to be under the guardianship of their uncle, Mr NEEKMAT. Mr NEEKMAT rented a flat at To Kwa Wan with monthly rent at HK$11,500, tenancy arrangement at encl.(56).

Consideration and recommendation

16. The absence of Mr AHMAD’s sponsorship has rendered the current applications outside the prevailing dependant visa policy without any other eligible sponsors provided. Nevertheless, an application will not automatically come to an end even if applicant fails to meet the eligibility criteria.

17. The reasons for the siblings to remain in HK were summarized at para.(8). The death of their parents rendered the children orphans, and they were put under guardianship of their grandmother, Ms NIZA Bibi, and uncle, Mr Mr NEEKMAT. And since the activation of entry dependant visa on 08-01-2015 until their last L/S on 08-12-2021 (6 years and 11 months), siblings’ absence of Hong Kong varies from 3.3 to 6.7 years in reason of studying in Pakistan and they were taken care of by their grandmother. There is no indication that the siblings cannot go back Pakistan and live there. Their willingness in remaining in Pakistan entirely rests on them but not the Director of Immigration (“the Director”). The Director has no legal duty to take humanitarian grounds into consideration and does not enjoy unfettered discretion in making immigration decisions. Nevertheless, the current cases were assessed and all the information provided has been taken into consideration.

18. Having considered all available information and surrounding circumstances of the case, substantial changes in circumstances in respect of Applicant are revealed and there are no extenuating grounds which warrant an exceptional consideration. I recommend refusing this application.

19. Draft refusal letter is prepared at float for your perusal. Submitted for your consideration please.

26.Memorandum M.2 deals with the consideration of the request for reconsideration, as follows:

This is the 1^st request for reconsideration received on 06-10-2022 concerning the above subjects (S1 to S4), siblings from the same family, who initially applied for extension of stay in Hong Kong on own merits (“initial application”) via their legal representative, C.M. Chow & Co. (“L/R”) on 08-12-2021 due to the death of their sponsoring father, Mr AHMAD-SHAH, holder of HKPIC #R246975(7) (“Mr. AHMAD”).

Case Background

2. For detailed case background, please refer to M.1 of ACCS-3961/3962/3963/3964-21 (at float). In gist, S1 to S4 were first approved entry dependant visas to join Mr. AHMAD as his dependants in 12/2014 after the death of their mother in Pakistan. They first entered Hong Kong o.s.o the dependant visas on 08-01-2015. Subsequent extensions of stay were granted to S1 to S4 under the same sponsorship in 01/2016 and 12/2018 with L/S last extended till 08-12-2021.

3. S1 to S4 submitted the initial application without eligible sponsorship on 08-12-2021 due to the death of Mr. AHMAD. The initial application was refused on 29-09-2022 on grounds of substantial changes in circumstances in respect of S1 to S4 were revealed and the lack of indication of any overwhelming/extenuating grounds which warrant an exceptional consideration.

Current Request for Reconsideration

4. S1 to S4 submitted the current request for reconsideration (“Request”) via the same L/R on 06-10-2022 vide letters at encl. (1)-(6).

5. The following document(s) were submitted in the current reconsideration request:-

Document(s) Submitted	New Grounds/Fresh Information Raised? (“Yes” or “No” – please elaborate for “No”)
Letter from S1 to S4 dated 06-10-2022 – encl. (1)	No. It was mentioned in the letter that: (a) S1 to S4 requested our Department to reconsider the refusal decision conveyed to them by letter dated 29-09-2022; and (b) S1 to S4 requested our Department to grant them 8 weeks of time allowance to prepare fresh grounds/documents for the Request.   The information at encl. (1) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Letter from S1 to S4 – encl. (2)-(5)	No. They were authorization letters from S1 to S4 to appoint C.M. Chow & Co. as their legal representatives.   The information at encl. (2)-(5) do not constitute fresh information for warranting a reversal of the initial refusal decision.
Letter from L/R dated 06-10-2022 – encl. (6)	No. It is mentioned in the letter that S1 to S4: (a) Applied for Data Access Request; and (b) Requested our Department to grant them 8 weeks of time allowance to prepare fresh grounds/documents in support of the Request.   The information at encl. (6) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Tenancy agreement with tenancy term till 31-05-2023 – encl. (9)	No. It is a renewed tenancy agreement of which the tenant is S1 to S4’s blood uncle Mr. NEEKMAT.   The information at encl. (9) does not constitute fresh information for warranting a reversal of the initial refusal decision as the accommodation arrangement of S1 to S4 had been taken in consideration in the assessment of the initial application.
Employment proof of Mr. NEEKMAT – encl. (10) and (21)	No. It is an updated employment proof of Mr. NEEKMAT.   The information at encl. (10) and (21) does not constitute fresh information for warranting a reversal of the initial refusal decision as the employment situation of Mr. NEEKMAT had been taken into consideration in the assessment of the initial application.
Business proof of SHAHJEE INTERNATIONAL TRADE LIMITED – encl. (11)-(12)	No. The documents had been submitted in the initial application.   The information at encl. (11)-(12) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Insurance Policy of Mr. AHMAD – encl. (13)	No. The document had been submitted in the initial application.   The information at encl. (13) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Bank Statements of Mr. AHMAD – encl. (14)	No. The documents had been submitted in the initial application.   The information at encl. (14) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Potential employment offer to S1 – encl. (15)	No. The document had been submitted in the initial application.   The information at encl. (15) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Academic proof S1 to S4 in Pakistan – encl. (16)-(19)	No. The documents had been submitted in the initial application.   The information at encl. (16)-(19) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Pay slips of Mr. NEEKMAT from 08/2022 to 10/2022 – encl. (20)	No. The employment situation of Mr. NEEKMAT had been taken into consideration in the assessment of the initial application.   The information at encl. (20) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Death Certificate of Mr. AHMAD – encl. (22)-(23)	No. The documents had been submitted in the initial application.   The information at encl. (22)-(23) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Will Deed of Mr. AHMAD – encl. (24)	No. The document had been submitted in the initial application.   The information at encl. (24) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Guardianship Certificate of S1 to S4 – encl. (25)	No. The document had been submitted in the initial application.   The information at encl. (25) does not constitute fresh information for warranting a reversal of the initial refusal decision.
Letter dated 11-11-2022 from L/R – encl. (26)	No. It is mentioned in the letter that: (a) S1 and S4’s lengthy absence from HK since visa activation is due to the difficulty in adapting to the local education system and thus they decided to pursue their study in Pakistan; (b) S1 to S4’s grandmother, who is one of their guardians, is over 70 years old and is unable to take care of them; (c) S1 and S2 are now adults and are financially sustainable; (d) S1 and S2 are offered potential employment in their late father’s company in HK; and (e) The probate application for the grant of probate of S1 to S4’s late father is pending adjudication in the High Court.   The information at encl. (26) does not constitute fresh information for warranting a reversal of the initial refusal decision.

Consideration and Recommendation

6. Re. para (5). All the documents submitted were highly overlapping to those submitted in the initial application without fresh grounds/new matters raised.

7. S1 to S4 were born and raised in Pakistan and they decided to pursue their study in Pakistan because they found it difficult to adapt to the local education system. They spent the majority of time living and studying in Pakistan (before and after they join their late father in HK) and therefore there is no indication that they cannot go back Pakistan. Furthermore, S1 and S2 are able-bodied adults who are able to take care of themselves and take up employment in Pakistan. Despite the fact that S1 and S2 had secured potential employment in his late father’s company in HK, self-sustainability does not constitute any grounds for consideration of an application falling outside the prevailing policy.

8. Without new matters raised, it is recommended to refuse this request for reconsideration and the letter informing the refusal decision is prepared at float for your perusal, please.

9. Submitted for consideration, please.

E.  The Intended Challenge

27.The primary relief sought by the Applicants is an order to quash the 1^st Decision, 2^nd Decision and 3^rd Decision.

28.The Form 86 as originally drafted in effect only sought an interlocutory order relating to the provision of evidence. Following the amendment, the Amended Form 86 crossed out the original grounds formulated and inserted a new paragraph 3A, which reads:

Grounds or possible grounds for the [relief] sought:

(i) The Applicants consider it necessary to apply for quashing the 1^st, 2^nd and 3^rd Decision all together, even though it is now out of time for the 1^st Decision, because of the continuing failure of the Director to take into account all relevant considerations and all the Director’s decisions to refuse the applications and requests by the Applicants were Wednesbury unreasonable.

(ii) For the merits of the intended grounds of review, first, having decided to take into account humanitarian or compassionate grounds, the Director failed to give adequate reasons for concluding that those grounds did not exist in the Applicants’ case.

(iii) Secondly, having decided to take into account humanitarian or compassionate grounds and bearing in mind the context giving rise to the Application for dependant visas, the Director’s conclusion that those grounds did not exist in the Applicants’ case is Wednesbury unreasonable.

29.These grounds might be restated as follows:

(1)  There was a continuing failure by the Director to take into account all relevant considerations, so that the Decisions were Wednesbury unreasonable (“Ground 1”).

(2)  The Director failed to give adequate reasons for concluding that the humanitarian or compassionate grounds did not exist in the Applicants’ case (“Ground 2”).

(3)  The Director’s conclusion that the humanitarian or compassionate grounds did not exist is Wednesbury unreasonable (“Ground 3”).

30.But there is considerable force in the submission made by Mr Tong that the Amended Form 86, and the supplemental affirmations of the Applicants filed in support of it, fail to put forward any real supporting particulars for these grounds. No particular attempt has been made to seek to distil or address the individual issues of each Applicant’s case, and the arguments put forward tend to suggest that the Applicants simply hope that the Court will somehow revisit the Decisions in respect of the Applicants as a group on the merits.

31.In any event, I can address the three intended Grounds individually.

F.  Ground 1

32.The Applicants have not explained on paper what considerations have not been properly taken into account by the Director.

33.The criticism of the 1^st Decision made by Mr Law in his oral submissions focused on the reasoning for that decision as revealed by internal memorandum M.1. Mr Law suggested that only past history had been considered, but no consideration had been given to recent developments, including that (1) the Grandmother is older and it would be a normal family arrangement for the Applicants to be living with the Uncle in Hong Kong, (2) it is unreasonable not to consider the future development of the Applicants, and the actual living conditions of the family, (3) it is common for the children of Hong Kong people to study overseas, and it does not follow that if the Applicants study in Pakistan they should then have to live and work there. As Mr Law put it in his reply submissions, the Applicants would be prejudiced if the Director were to turn a ‘blind eye’ to what is happening now in the “current real situation”.

34.With respect, these criticisms are misplaced. The starting point is that, following the death of the Father, the Applicants no longer have an eligible sponsor and their applications fall outside the dependant visa policy. Hence, their applications fell to be decided under the general discretion exercised by the Director (which is a very wide discretion as has long been recognised: see above). It can also be noted that, by the time of the applications, A1 was already an adult, and she made her application not for a dependant visa but on her own merits.

35.Further, the Director has not turned a blind eye, or somehow ignored, the current situation as was explained to him by the Applicants when making their applications. He has simply not accepted that the humanitarian or compassionate grounds put forward are ones which should properly lead to the grant of any visa.

36.Also, any intended ground based upon the suggestion that the Director has somehow failed to take into account all relevant considerations must fail in light of the detail shown in the internal memorandum M.1. In so far as the Applicants suggest that what was considered by the Director is only to be found in §§16-17 of M.1, that is obviously incorrect. The consideration and recommendation were based upon all the matters set out at some length in the previous §§1-15 – together with the relevant enclosures and evidence. Those paragraphs canvas the various points said to amount to the humanitarian or compassionate reasons relied upon by the Applicants.

37.Therefore, as Mr Tong submitted, the arguments put forward for the Applicant in effect amount to a complaint that the Director should have given more weight to the humanitarian or compassionate grounds. I agree that that is in reality a merits challenge.

38.As to the 2^nd and 3^rd Decisions, Mr Law submitted that the problem with the decision-making process is evident from §6 of internal memorandum M.2, which stated that the documents submitted on the reconsideration request were highly overlapping to those submitted in the initial application without fresh grounds/new matters raised. He submitted that a reconsideration can take place even on exactly the same materials as had previously been considered, and a reconsideration does not depend upon there being new matters to be taken into account. Mr Law also suggested that §7 of M.2 again showed that there had been consideration only of the past history, but not of the current position or potential future development, so that there was no real consideration of compassionate grounds.

39.As to the first point, the Director has looked at the material submitted in support of the reconsideration request. The weight to be accorded to those materials is a matter for him. As M.2 sets out in some detail, the Director has assessed those materials, including in light of whether those materials provide further or additional information to the materials previously assessed in reaching the 1^st Decision. The Director is not fairly to be criticised for having considered the materials which the Applicants themselves submitted in support of their request for reconsideration (when they must have realized the likely need to provide more information if the Director were to change his mind). Nor is the Director to be criticised for looking to see whether those materials contain new or fresh information as might point in a different direction than the 1^st Decision.

40.In any event, it seems to me on the materials that the Director was entitled to take the view – and it is for the Director to form the relevant view – that there were no extenuating grounds which would warrant exceptional consideration of the Applicants’ applications, and that there was no sufficient reason or justification to reverse the 1^st Decision upon its reconsideration, leading to the 2^nd Decision. Nothing in either M.1 or M.2 comes close to suggesting any irrationality or Wednesbury unreasonableness.

41.Ground 1 is not reasonably arguable with any reasonable prospect of success.

G.  Ground 2

42.This Ground was not particularly pursued by Mr Law in his oral submissions. This was probably because the reasoning for the making of both the 1^st Decision and the 2^nd Decision is evident from the internal memoranda M.1 and M.2. Further, the 3^rd Decision is simply the practical consequence of the 2^nd Decision.

43.In any event, even without the benefit of seeing those memoranda, there can be no real suggestion that the Applicant would not have understood the reasons for the Decisions. The letters imparting the Decisions are not to be read, and clearly were not in fact read, in a vacuum. They are to be read, and they would have in fact been read, in the context of the previous exchanges of correspondence between the Applicants, their solicitors and the Director in the making of the original applications and the requests for their reconsideration. Against that, it was wholly sufficient for the Director to have informed the Applicants that there had been a substantial change in circumstances following the loss of the sponsorship of the Father, so that they were no longer eligible to remain in Hong Kong on dependant status, and that no strong extenuating grounds to justify exceptional consideration had been found.

44.Ground 2 is not reasonably arguable with any reasonable prospect of success.

H.  Ground 3

45.In so far as the intended Ground 3 suggests that the Director concluded that there were no existing compassionate or humanitarian grounds, that is simply incorrect. On the face of the materials, it is clear that the Director understood he was being asked to exercise his discretion by reference to what was said to be the compassionate or humanitarian grounds. He did not say that such grounds did not exist; rather, he decided that such grounds as were put forward did not amount to strong extenuating grounds to justify an exceptional consideration of the applications outside the dependant visa policy.

46.As already stated, once he decided to take them into account, the weight to be given to the humanitarian or compassionate grounds advanced for the Applicants was a matter for the Director. The Court will not interfere with the weight given by the Director, unless the high threshold of Wednesbury unreasonableness can be shown.

47.It is not reasonably arguable on the materials that the Director has acted irrationally or Wednesbury unreasonable.

48.Ground 3 is not reasonably arguable with any realistic prospect of success.

I.  Result

49.In consequence, the Applicant’s application for leave to apply for judicial review is dismissed.

50.I see no reason at present why costs should not follow the event. Therefore, I order the Director’s costs to be paid by the Applicants, to be assessed by me on paper on a summary basis. However, as indicated at the hearing, I make that order in the first instance on a nisi basis, and it would become absolute if neither party seeks variation of the costs order nisi by 11 August 2023. Any variation application made will also be dealt with on paper.

Mr Calvin Law, instructed by C.M. Chow & Company, for the applicants

Mr Andrew Tong, Senior Government Counsel (Ag.), of the Department of Justice, for the putative respondent