Gurung Ram Bahadur v. Director of Immigration

HCAL 1223/2025

[2025] HKCFI 2367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1223 OF 2025

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D E C I S I O N

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A.  Introduction

1.By his Form 86 dated 27 May 2025, the Applicant seeks leave to apply for judicial review so as to challenge the decision of the Putative Respondent (“Director”) dated 20 May 2025 (“May 2025 Decision”), upholding an earlier decision of refusing the Applicant’s application for an extension of stay, made on his own merits (“Refusal Decision”).  The May 2025 Decision maintained the Refusal Decision upon reconsideration.

2.On 6 June 2025, I gave directions permitting the Director to file and serve an initial response to the application, and for the Applicant to file a reply.  The initial response was filed on 10 July 2025, signed by Ms Angie Liu, Government Counsel.  The Applicant filed his reply on 11 August 2025.

3.Having considered the materials, I am satisfied that this application can appropriately be dealt with on the papers.

4.This is my Decision.

B.    Background

B.1  The Applicant’s background and dependant visa application

5.The Applicant is a national of Nepal, born on 5 June 1987. He married his wife (“Wife”) in Nepal on 27 June 2018.  The Wife is a Hong Kong permanent resident (“HKPR”).

6.On 24 July 2018, the Applicant applied to the Immigration Department (“ImmD”) to join the Wife as a dependant.  The application was approved on 7 December 2019, and the Applicant was granted permission to enter and remain in Hong Kong on 25 January 2020 with a limit of stay on dependant status until 25 January 2021.

7.The Applicant’s application for extension of stay as a dependant under the continued sponsorship of the Wife was granted on 25 January 2021 with a limit of stay until 25 January 2024.

8.On 1 June 2022, the Applicant and Wife’s daughter (“Daughter”) was born in Hong Kong, and is a HKPR.

B.2    The Applicant’s application for extension of stay without sponsorship

9.ImmD received two letters dated 21 October 2022 and 12 March 2024 from the Wife informing her intention to withdraw her sponsorship of the Applicant as her dependant.

10.On 25 January 2024, the Applicant made an application for extension of stay on his own merits without the Wife’s sponsorship (“Without Sponsorship Application”), raising the following humanitarian grounds and asking ImmD to exercise its discretion to approve the Without Sponsorship Application:

(1)  The Applicant would like to reconcile with the Wife and live in Hong Kong with his family.

(2)  He had all along played an active role in the upbringing of the Daughter, and would be prepared to file an application for divorce and apply for the sole custody of the Daughter if he failed to reconcile with the Wife.  He would need to be present in Hong Kong during the divorce proceedings to convince the Court that he was suitable caregiver to the Daughter in order to claim the right of custody.  He undertook to return to Nepal with the Daughter if he was granted her sole custody and ImmD refused to grant him an extension of stay on his own merits.

(3)  He claimed that he was a skilled construction worker and would be able to get a high paid job.

11.Between 8 February 2024 and 12 March 2024, there was correspondence between ImmD and the Applicant in respect of the former’s request and chasing for supplementary documents and the latter’s request for extension of time.

12.On 25 March 2024, ImmD received a letter from the Applicant, in which, inter alia, he stated that he had tried every means to reconcile with the Wife but was unsuccessful and that he would commence divorce proceedings and apply for the custody of the Daughter.

13.The reasons for coming to the decision to refuse the Without Sponsorship Application (i.e. the Refusal Decision) can be found in ImmD’s Internal Minute M.1 dated 11 May 2024.  The Director was not satisfied that the Applicant was able to meet the eligibility criteria under the Dependant Policy for the following reasons:

(1)  Due to the change of marital relationship, resulting in loss of sponsorship, it is considered that there was a substantial change in circumstances which rendered the Without Sponsorship Application outside the prevailing Dependant Policy.

(2)  Despite repeated reminders to the Applicant for providing supporting documents, he failed to provide substantial information or documents to substantiate the Without Sponsorship Application.

(3)  The Applicant failed to reconcile with the Wife, who refused to vouch continuous support to the Applicant’s stay in Hong Kong.

(4)  The Applicant offered no information or documents in support of his connection with the Daughter.

(5)  There are no extenuating grounds warranting an exceptional consideration of the case.

14.By letter dated 13 May 2024, the Director notified the Applicant of the Refusal Decision and required him to leave Hong Kong on or before 27 May 2024.

B.3    1^st Reconsideration Request

15.On 27 May 2024, relying on the humanitarian ground that he would file a divorce petition and seek custody of the Daughter, the Applicant submitted a reconsideration request of the Without Sponsorship Application (“1^st Reconsideration Request”).

16.In reply to ImmD’s request for providing fresh supporting documents and information in support of the 1^st Reconsideration Request, the Applicant sent a letter to ImmD on 11 June 2024 in which, he stated, amongst other things, that he had filed a divorce petition in FCMC 5923/2024 on 5 June 2024 and he intended to seek the sole custody of the Daughter.  He requested ImmD to grant him an extension of stay to permit him personally to attend the Court for proceedings in relation to the Daughter’s custody and his divorce.

17.On 5 July 2024, ImmD received a letter from the Applicant dated 3 July 2024 in which he stated that he had applied for legal aid for his divorce proceedings.  On 14 August 2024, legal aid was granted to him for his divorce proceedings.

18.On 22 August 2024, ImmD issued a letter to the Applicant to request for documents and information.  On 4 September 2024, ImmD received the Applicant’s letter dated 3 September 2024, in which, amongst other things, he stated that there was no progress as to obtaining the custody of the Daughter and submitted an Order dated 23 July 2024 made by Master GT Lung in FCMC 5923/2024, in which the First Appointment Hearing was adjourned to 13 January 2025.

19.The Director was of the view that there was no reason or justification for reversing the Director’s Refusal Decision.  As shown in the Internal Minute M.1 dated 17 September 2024, the Director’s reasons are as follows:

(1)  The Applicant failed to provide information to prove a strong connection between the Daughter and him.  The Daughter was under the sole care of the Wife and the Applicant had no access to them at the time.

(2)  The dealing with the divorce arrangement did not constitute strong grounds for reversing the Refusal Decision.

(3)  There were no strong compassionate grounds, humanitarian factors or compelling reasons to justify the exercise of discretion to approve the 1^st Reconsideration Request.

20.By letter dated 23 September 2024, ImmD notified the Applicant that there was no reason or justification for reversal of the Refusal Decision, which still stood.

B.4  2^nd Reconsideration Request (May 2025 Decision)

21.On 7 October 2024, the Applicant submitted a further reconsideration request of the Without Sponsorship Application, relying on the following grounds:

(1)  His divorce proceedings were still ongoing, and the First Appointment Hearing was on 13 January 2025.  His personal attendance was necessary for attending the hearing and making an application for the custody of the Daughter.  His presence in Hong Kong was necessary for giving instructions to his solicitors, as assigned by the Legal Aid Department, for the smooth processing of his divorce proceedings.

(2)  He believed that the custody of the Daughter would be granted to him.  Once her custody was granted to him, he still needed to make an application to the Court to remove the Daughter from Hong Kong.  If such application were denied, his presence in Hong Kong was required to give proper upbringing to the Daughter.

22.In reply to ImmD’s request for supporting documents and information, the Applicant sent a letter dated 17 October 2024 to ImmD, enclosing a letter of the same date from his solicitors, Tony Lawyers, in which it was stated, inter alia, that:

(1)  The Applicant was claiming ancillary relief from the Wife in the divorce proceedings.

(2)  He was required to personally attend every hearing in usual divorce proceedings unless the Court otherwise orders.  His attendance was therefore required on 13 January 2025 for the First Appointment Hearing.

(3)  His presence in Hong Kong would be necessary as the Court would be requiring a social worker report to assess on the custody issue and he was also required to undergo face-to-face interview, home visit etc. with the social investigation officer.

(4)  Since he was not granted access to the Daughter, he would need to make an application to the Court for interim access to the Daughter.

23.Between 8 November 2024 and 18 February 2025, there was correspondence between ImmD and the Applicant regarding the former’s request and chasing for supporting documents and information in relation to the updated situation of the divorce proceedings and the latter’s replies.

24.By letter dated 3 March 2025, the Applicant stated that he had attended the hearing on 13 January 2025 and the Family Court made further directions in relation to the divorce proceedings and his access arrangement to the Daughter.  He provided ImmD with a draft Order filed by his solicitors to the Family Court on 13 January 2025, which stated, inter alia, that:

(1)  Interim defined supervised access to the Daughter was granted to the Applicant.

(2)  Interim care and control of the Daughter was granted to the Wife.

(3)  The Daughter shall not be removed from Hong Kong without leave until further order and certain requirements.

(4)  The First Appointment Hearing shall be adjourned to 10 July 2025, and both parties shall attend the hearing personally.

25.The Director was of the view that there was no reason or justification for reversing the Director’s Refusal Decision.  The Director’s reasons for coming to the decision to maintain the Refusal Decision (i.e. the May 2025 Decision) are set out in the Internal Minute M.1 dated 16 May 2025 as follows:

(1)  The Applicant failed to provide information to prove the strong connection between the Daughter and him.  The interim custody right of the Daughter was granted to the Wife.

(2)  The dealing of divorce arrangement does not constitute strong grounds for reversing the Refusal Decision.

(3)  There were no strong compassionate grounds, humanitarian factors or compelling reasons to justify the exercise of discretion to approve the 2^nd Reconsideration Request.

26.By letter dated 20 May 2025, ImmD notified the Applicant that there was no reason of justification to reverse the Refusal Decision and the Refusal Decision still stood.  The Applicant was required to leave Hong Kong on or before 3 June 2025.

27.The current status of the Applicant is that he has no valid limit of stay in Hong Kong since the expiry of his limit of stay on 26 January 2024.

C.  Intended Grounds of Review

28.As indicated, the Applicant commenced these proceedings by Form 86 dated 27 May 2025.  The Application was supported by his affirmation of the same date.

29.In a way with which I agree, Ms Liu has summarised the intended Grounds of review as follows:

(1)  The Director has the discretion to grant an extension of stay even in the absence of a sponsor and he was able to show exceptional circumstances.

(2)  The Family Court has granted joint custody of the Daughter to him and the Wife and his presence in Hong Kong is necessary for the well-being of the Daughter.

(3)  The divorce proceedings were still ongoing and the Court had ordered further reports from a social worker to make a determination on the custody of the Daughter.  He would be deprived of the opportunity to make an application regarding custody of the Daughter if he were to leave Hong Kong.

(4)  His presence in Hong Kong is necessary for the care and well-being of the Daughter, who has the right of abode in Hong Kong. He would be deprived of the opportunity to play an active role in the upbringing of the Daughter, especially when the Family Court has imposed a restriction for her not to leave Hong Kong until the age of 18.

(5)  He would be able to earn a decent salary in Hong Kong, which is ample to provide for the family and would not rely on benefit from the Hong Kong Government, etc.

(6)  The Director had granted extension of stay to other female applicants in similar circumstances and to reject his application because he was a male applicant would be discriminatory and unfair.

30.Similar grounds were relied upon by the Applicant in his reply to the initial response.

31.As can be seen, most of those points are not public law grounds of review as to the Refusal Decision and/or the May 2025 Decision itself. 

D.  Legal Context

32.I can usefully set out some relevant legal principles relating to visa applications and extensions of stay, which were addressed as follows in my recent decisions in Faisal Muhammad v Director of Immigration [2024] HKCFI 2579 at §§41-46, Yolmo Deechen Lamu v Director of Immigration [2024] HKCFI 3438 at §§40-45, and Lilik-Sunarsih v Director of Immigration [2025] HKCFI 2664 at §§52-57.  Those principles are also applicable to the present case.

33.It is settled – see, for example, BI v Director of Immigration [2016] HKCA 89 at §92 – that:

(1)  It is appropriate and necessary for the maintenance of its suitability for Hong Kong to adopt restrictive immigration policies and practices.

(2)  The Court is not equipped with the necessary information or tasked by the law to carry out the responsibility of the Director.

(3)  Nevertheless, the Court retains a supervisory jurisdiction over the Director’s exercise of the power of immigration control.

(4)  If the Director fails to take relevant considerations that are legally required to be taken into account, or takes into account irrelevant considerations which he legally should not take into account, the decision would not be valid.

(5)  The Court can also intervene where the Director does not act fairly in the decision-making process.

(6)  The Court may also intervene where the decision is found to be Wednesbury unreasonable or irrational.  But this is a high hurdle for an applicant to overcome.

(7)  An important consideration in the application of the principle of legality in the Hong Kong immigration context is the reservation in section 11 of the Hong Kong Bill of Rights Ordinance, providing that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong.

34.It is also trite, and no authority is needed for the proposition, that decisions are to be made by the decision-maker to whom the legislature has entrusted that function, including any relevant fact finding function.  It is the duty of the Court to leave decisions of fact to the decision-maker, unless it is obvious that the public body has acted perversely, or in breach of some other public law requirement.

35.Another way of putting it is that the Court exercising its judicial review jurisdiction does not reach its own conclusion on the primary facts, and should accept apparently tenable conclusions (including conclusions as to credibility).  But the Court retains powers to intervene where there was unsatisfactory treatment of facts by the decision-maker, such as where the finding of fact was irrational or perverse, or unsupported by evidence, or was plainly untenable, or where irrelevant factors were taken into consideration or relevant factors were not considered or were misunderstood.

36.It is the burden of the person seeking permission to reside in Hong Kong to show such facts as might persuade an immigration officer that his circumstances are such as to fall within a policy adopted by the Director.  It is not for the Director to have to show that an applicant or an application falls outside the policy.

37.It can be added that, though it may be that the Director from time to time seeks further information than is originally provided in support of an application, that does not create some ongoing obligation on the Director to continue to seek materials.  The burden remains on the applicant to establish such facts as might persuade the Director that the grant of the permission sought by the application is appropriate – and the Director is entitled to form a view, and to make his decision, on the materials provided.

38.It is also settled that each application for such a visa must depend on its own facts.  It is a wrong premise to assume that the previous grant of a visa creates some sort of precedent binding on the Director in relation to a subsequent application.

E.  Analysis

39.The gist of the Applicant’s complaint under the above Grounds is that there are exceptional, humanitarian and compassionate grounds to justify an extension of his stay in Hong Kong on his own merits without sponsorship.

40.Ms Liu submitted that the complaint made by the Applicant is in effect the alleged failure of the Director to exercise his discretion properly and/or to consider humanitarian grounds (i.e. the Applicant would not be able to play an active part in the upbringing of the Daughter if an extension of stay in Hong Kong was not allowed), which should be rejected for the following reasons:

(1)  As can be seen from the relevant internal minutes, the Applicant’s representations had been set out and duly considered.

(2)  The Applicant’s family circumstances and the opportunity to parent the Daughter can at most fall within humanitarian or compassionate grounds in the immigration context, which the Director had no legal duty to take into consideration: Comilang Milagros Tecson v Director of Immigration [2018] 2 HKLRD (Court of Appeal) at §96.

(3)  As to what aspects the Director would take into account and the weight to be given to a particular humanitarian consideration, that is a matter for the Director to decide: BI v Director of Immigration [2016] 2 HKLRD 520 at §105.

(4)  In a Wednesbury challenge against the decision-maker’s assessment of the relevance of various matters and the weight to be attached to the same, the Court will give a wide margin of appreciation to the decision-maker’s views given the very broad nature of the discretion, the high policy content on immigration matters, and the fact that the Court does not have the relevant expertise in immigration matters: PVQ and Others v Permanent Secretary for Security [2021] HKCA 444 at §59.

(5)  The Director was entitled to take the view that there was no extenuating ground which would warrant exceptional consideration: Sobia v Director of Immigration [2020] HKCFI 2821 at §12.

(6)  The Applicant failed to meet the eligibility criterion of the Dependant Policy, i.e. no change in circumstances which would have otherwise resulted in loss of sponsorship for an applicant (e.g. change in marriage relationship between the dependant spouse and the sponsor) as set out in the Guidebook for Entry for Residence as Dependants in Hong Kong.  There are no strong and exceptional factors warranting the Director to exercise his discretion to allow the Applicant’s further stay in Hong Kong for residence outside the prevailing immigration policy and the Director has no legal duty to do so.

(7)  The Applicant’s assertion that he was treated differently and/or discriminated against as a male person as female applicants in like position would get their stay extended has no merit, as each case is assessed individually on its own merits.  The Applicant may apply for other type of visa(s) to attend court hearing(s) for the matrimonial proceedings and be interviewed by a social worker for preparation of the social welfare report regarding the Daughter.

41.I accept Ms Liu’s submissions.

42.The main thrust of the Applicant’s argument is that the humanitarian or compassionate factors should justify the grant of an extension to stay to him on his own merits.

43.However, as the Director himself correctly noted when making the Refusal and May 2025 Decisions, it is well-settled that (1) the Director is under no legal duty to take humanitarian or compassionate factors into account in deciding whether to grant the extension of stay, and (2) if the Director takes any such factors into account, the weight to be given to those factors is a matter for the Director to decide, subject only to interference by the Court on public law unreasonableness or irrationality grounds.

44.It is trite that the unreasonableness or irrationality threshold is a high one for an applicant to overcome, and the Court will not likely interfere with the decision of immigration officers made in the Hong Kong context of an overall restrictive immigration policy.  This is so, even if it is properly recognised that immigration officers are faced with difficult decisions, many of which might even split families.  The role played by the Court remains only supervisory in nature.

45.In the present case, it seems to me that it was open to the Director to conclude that there was no extenuating or humanitarian factor warranting an exceptional consideration, when the Applicant could not otherwise bring himself within the Dependant Policy.

46.Indeed, it seems to me that it was open to the Director to take into account (as he did in the context of the child custody, care and control factor) that the Applicant offered no information or document in support of his (allegedly strong) connection with the Daughter, and the fact that the interim care and control was granted to the Wife by the Family Court, and that the Applicant’s access was first apparently non-existent and then limited and supervised.

47.As pointed out by Ms Liu in the Director’s initial response, any right to remain in Hong Kong so as to take care of a child who is a HKPR has been carefully considered by the Courts up to the level of the Court of Final Appeal: see Comilang v Director of Immigration (2019) 22 HKCFAR 59.  Even though the Daughter is a HKPR, that does not confer rights in the immigration context on the Applicant.

48.I have also taken into account the family proceedings factor.  On the face of the materials provided with the application for leave to apply for judicial review, I accept that the legal question of custody, care and control of the Daughter is yet to be resolved by any court order in the Family Court.  I think it can also be accepted that there may in general be a preference for parents of a child in any contest or dispute about child orders to be present at court hearings relating to the best interests of that child. However: (1) custody rights are likely to be shared even if the parents are resident in different places; (2) the interim care and control was granted to the Wife, apparently in continuation of the existing position in fact; (3) exceptions can be made so as to excuse one or both parents from attending court hearings, in particular when they can be represented by lawyers, as here with the benefit of a legal aid certificate; and (4) there is no bar to the Family Court ordering the payment of maintenance for the benefit of the Daughter, payable by a father outside Hong Kong.  Though perhaps not to this level of specificity, these points do not seem to have been overlooked by the Director in his consideration.

49.As to the Applicant’s complaint about the alleged discrimination, on the facts of the present case and looking at the correspondence between the Applicant and the Director and the internal minutes of ImmD as a whole, there is no evidence suggesting that he was treated differently and/or discriminated against as a male applicant in an application for extension of stay.

F.  Result

50.In the circumstances, none of the intended grounds of review raised by the Applicant are reasonably arguable with any realistic prospect of success.  Therefore, the application for leave to apply for judicial review is dismissed.

51.However, in the exercise of my broad discretion as to costs, I make no order as to costs.