Thapa Khima v. Director of Immigration

HCAL 2653/2024

[2025] HKCFI 283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2653 OF 2024

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D E C I S I O N

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A.  Introduction

1.By her Form 86 dated 30 December 2024, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Director of Immigration dated 8 October 2024 (“Reconsideration Decision”), whereby the Director refused the request for reconsideration of his previous decision dated 7 November 2023 (“Refusal Decision”) declining to issue a dependant visa to the Applicant’s husband (“Husband”).

2.The Form 86 suggests that the Reconsideration Decision should be quashed because of “improper procedure”. In her supporting affirmation, the Applicant states that she is of the “strong view” that the Director failed to take relevant factors into account in relation to her husband’s dependant visa application.

3.Having considered the materials, I am satisfied that this application can appropriately be dealt with on paper. This is my decision.

B.  Material Background

4.The Applicant is the holder of a Hong Kong Permanent Identity Card. Though the relevant materials and correspondence attached to the Applicant’s affirmation in these proceedings do not seem to be complete, it appears the Applicant has made more than one application for a dependant visa to be issued to the Husband.

5.By letter dated 31 January 2022, the Director referred to the entry dependant visa application made by the Applicant as sponsor for the Husband to take up residence in the HKSAR as her dependant. The letter stated that, having carefully considered all relevant circumstances and available information, the Director was not satisfied that the Husband was a genuine dependant of the Applicant, who was physically, emotionally and financially dependent on her, and that there existed no strong compassionate or humanitarian reasons or other special extenuating grounds warranting a departure from the prevailing policy. Therefore, the application for entry for residence as dependant was refused.

6.By letter dated 7 November 2023 (i.e. the Refusal Decision), the Director referred to (presumably) a subsequent repeat application for an entry dependant visa for the Husband to take up residence in the HKSAR as a dependant of the Applicant. For the same reasons as previously explained, the application was refused.

7.At some point subsequently, it seems that the Applicant made a different application for a visit visa. Amongst the papers produced by the Applicant is a letter dated 19 March 2024, which provided certain information and declarations, apparently in response to a letter from the Director of 18 March 2024. The Applicant’s letter is headed ‘Application for visit visa/ Entry Permit for Hong Kong’, and as well as providing certain documents, states that:

(1)  the intended period of stay of the Husband will be one months from the date of arrival;

(2)  the Applicant declares that the Husband would not apply for change of status or extension of stay during the visit in Hong Kong if the visit visa is approved; and

(3)  the purpose of the visit is for a family reunion, as the Applicant works and lives in Hong Kong and is unable to take days off to go to travel to see the Husband.

8.By letter dated 15 April 2024, the Director referred to the visa application for entry for visit/transit in the HKSAR, and stated that having taken into consideration the documents and information made available as well as all the circumstances of the application, the application was refused.

9.As I understand it, the present proceedings do not challenge that particular refusal decision.

10.On 25 July 2024, solicitors acting for the Applicant wrote to the “Chief Immigration Officer” by email providing what they described as “new unsubmitted materials” (43 pages) to support the Applicant’s request for reconsideration of the assessment of entry of the Husband as a dependant. The enclosures included previously unsubmitted pictures taken in Nepal “recently”, and an updated employment contract showing the Applicant’s monthly salary.

11.The Director subsequently sought from the Applicant an authorisation authorising the solicitors to handle that request on her behalf. It is not clear if that was immediately provided. On 21 August 2024, the solicitors wrote again providing “new unsubmitted materials” (30 pages, but undescribed) to support the request for reconsideration and reassessment of the dependant visa application. This led to a further request for an authorisation letter, which the Applicant provided on 1 September 2024.

12.Amongst the documents provided by the Applicant and/or her solicitors were apparently wedding photographs and various photographs showing the Applicant and the Husband together in Nepal in April and May 2024. Though the Applicant has attached to her affirmation in these proceedings numerous pages of a printout of phone messages between herself and the Husband between November 2023 and August 2024, it is not clear that those materials were previously provided to the Director (as the number of pages of the attachments to the relevant correspondence was rather lower).

13.In any event, by letter dated 8 October 2024 (i.e. the Reconsideration Decision), the Director referred to the letter of 21 August 2024 and its attached documents relating to the request for reconsideration of the application for residents of the Husband as dependant. The Director informed that the request for reconsideration of the application was refused as the information provided and representation made did not serve to form any fresh ground pertinent to the refusal of the application. Hence the decision dated 7 November 2023 (i.e. the Refusal Decision) previously conveyed still stood.

C.  The Intended Challenge

14.As already indicated, it seems that the intended challenge to the Reconsideration Decision is simply on the basis that the Director failed to take relevant factors into account in relation to the Husband’s dependant visa application.

15.However, there is no identification of which factors are said to have been relevant and which were not taken into account by the Director in reaching the Reconsideration Decision.

D.  Consideration of Merits

16.On the face of it, the intended challenge rather smacks of a challenge to the merits of the Reconsideration Decision. Absent the proper identification of any particular factor which is said to have been relevant but which was not taken into account, the Applicant seems essentially simply to be challenging a decision as having gone against her and the Husband, so raising her assumption – expressed as her “strong view” – that some relevant factors must not have been taken into account.

17.It is trite that an application for leave to apply for judicial review must properly set out the relief sought and the grounds of review, as well as to provide an affirmation verifying the facts upon which the intended challenge is based. I do not think the Applicant’s Form 86 and affirmation satisfy those mandatory requirements.

18.For that reason alone, the application stands to be dismissed.

19.In any event, there is no proper basis for suggesting that the Director has failed to take into account any relevant considerations or any of the materials which were provided to him. It can be noted that the relevant decision letters say in terms that the Director has considered the materials and representations made to him, as well as all relevant circumstances.

20.Further, the weight to be attached to the different materials and considerations was a matter for the Director, subject only to a potential Wednesbury unreasonableness or irrationality challenge. However, there is no basis to think it arguable that the Director’s Reconsideration Decision – or the previous Refusal Decision – was in any way Wednesbury unreasonable or irrational.

21.There is also the point that if there was to be an intended challenge to the decision to refuse a dependant visa for the Husband, that Refusal Decision was actually made on 7 November 2023, and any intended challenge was required to have been made promptly and in any event within the three-month long stop period provided for in the rules. No such application was made, and making a request for reconsideration does not necessarily restart the clock.

22.Of course, it can also be noted that (1) the materials provided by the Applicant’s solicitors to the Director in mid-2024 were not available at the time of the original Refusal Decision, and (2) at least some of the materials contradicted statements made by the Applicant when she applied for a one-month visit visa in March 2024 – when she said that she could not travel to Nepal, but the photographs and passport copies later provided evidence her travel to Nepal in April and May 2024.

E.  Result

23.Ultimately, the Applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success.

24.In those circumstances, her application for leave to apply for judicial review is dismissed. I make no order as to costs.

The applicant, acting in person