Khan Muhammad Bilal v. Director of Immigration

HCAL 1224/2025

[2025] HKCFI 4065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1224 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 15 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 3 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 8 July 2025, signed by Mr Eric Ko, Senior Government Counsel. It provides a helpful summary of the overall circumstances, which I can use in this Decision. The Applicant filed his reply on 11 August 2025, mainly repeating earlier points though with some updating.

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 Pakistan, born on 17 June 1992. He married his wife (“Wife”) in Pakistan on 11 October 2019. The Wife is a Hong Kong permanent resident (“HKPR”).

6.On 3 October 2020, their son (“Son”) was born in Pakistan.

7.On 18 July 2022, the Applicant applied to the Immigration Department (“ImmD”) to join the Wife as a dependant. On 11 May 2023, the Son was verified as a HKPR under paragraph 2(c) of Schedule 1 to the Immigration Ordinance Cap 115.

8.The Applicant’s application for a dependant visa was approved, and he was granted permission to enter and remain in Hong Kong on 31 August 2023 with a limit of stay on dependant status until 31 August 2024.

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

9.On 30 August 2024, the Applicant made an application for extension of stay on his own merits without the Wife’s sponsorship (“Without Sponsorship Application”). In the relevant form, the Applicant crossed out the box “for residence as dependant” and chose “other” as the reason for the proposed extension of stay. In the letter dated 28 August 2024 appended to the application form, he stated, inter alia, that:

(1)  The Wife was unwilling to further sponsor his stay in Hong Kong.

(2)  He had filed a divorce petition and had to be present in Hong Kong to convince the Family Court to grant custody of the Son to him.

(3)  He has been working in Hong Kong as a skilled construction worker and would be able to get a high-paid job if extension of stay were to be granted to him on his own merits.

10.In that letter, the Applicant raised the following humanitarian grounds and asked ImmD to exercise its discretion to approve the Without Sponsorship Application: he wanted to continue to live in Hong Kong to reconcile with the Wife and continue to play an active role in the upbringing of the Son whom he brought into Hong Kong from Pakistan.

11.By letter dated 4 October 2024 to ImmD, the Applicant stated, inter alia, that:

(1)  He had already commenced the divorce proceedings, FCMC 9004/2024, in Hong Kong in which he sought the custody of the Son.

(2)  He had applied for legal aid in respect of the matrimonial proceedings.

(3)  He was disowned by his family in Pakistan. Both he and the Son would face undue hardship in Pakistan as it would be difficult for him to take care of the Son and make a living at the same time there without any family support.

(4)  He managed to earn around $28,000 per month as a construction worker in Hong Kong before expiry of his dependent visa and he could provide better living to the Son in Hong Kong if his visa were extended.

12.By letter dated 7 November 2024, the Applicant provided various documents to ImmD and made the following representations, inter alia, that:

(1)  Since their separation, the Wife had not allowed him to meet his son and he would “take out summons to get interim care and control of” the Son.

(2)  He had limited working experience in Pakistan and would not be able to obtain any gainful employment that would enable him to support himself and the Son there.

(3)  If care and control of the Son were granted to the Wife, the Son would be “left in Hong Kong” and it would be impossible for the Applicant to play an active role in the Son’s upbringing.

(4)  If extension of stay were granted to him, he could earn between $25,000 to $30,000 and would be able to play an active role in the upbringing of the Son.

13.In view of (1) the substantial change in circumstances due to the loss of sponsorship from the Wife rendering the Applicant not being able to continue to meet the eligibility criteria of the Dependant Policy and (2) there being no extenuating, humanitarian or compassionate ground warranting an exceptional consideration of the case, the Director refused the Without Sponsorship Application (“Refusal Decision”).

14.By letter dated 22 November 2024, ImmD attempted notifying the Applicant of the Refusal Decision but could not reach him due to unsuccessful delivery of registered mail. The Applicant was reached by phone on 29 November 2024 and was required to attend the Extension Section of ImmD. On 2 December 2024, when the Applicant attended the Extension Section, he was notified of the Refusal Decision in writing and was required to leave Hong Kong on or before 6 December 2024.

B.3   Reconsideration Request

15.By letter dated 4 December 2024, relying on humanitarian grounds including the Custody and Parenting Ground, the Applicant submitted a reconsideration request relating to the Without Sponsorship Application (“Reconsideration Request”).

16.The Applicant represented that he was required to attend the adjourned hearing of the divorce proceedings fixed for 25 February 2025 personally and that his presence in Hong Kong would be necessary as the Family Court would be requiring a social worker report to assess whether he or the Wife is in a better position to take care of the Son and he “would not be able to present” himself “in a proper way to court” if he was required to return Pakistan.

17.On 18 December 2024, the Applicant wrote to ImmD, stating that he had been granted legal aid in November 2024 to continue FCMC 9004/2024, including to seek ancillary and other relief.

18.In reply to ImmD’s request for fresh documents or information, the Applicant sent a letter dated 2 January 2025 to ImmD enclosing copy of, inter alia, an Order made by Master Amy Chak on 7 November 2024 in FCMC 9004/2024, which granted the Applicant leave to file a new petition for divorce on the ground of “consent one-year separation” on before 1 December 2024, and otherwise transferred the custody and ancillary relief matters to the intended new proceedings.. Also enclosed was a letter of the same date from Tony Lawyers, the solicitors assigned by the Legal Aid Department, contending that the Applicant’s physical presence in Hong Kong was of actual significance to his divorce proceedings.

19.By letters dated 3 March 2025 and 25 March 2025, ImmD requested and chased the Applicant to provide supporting documents or information, including the updated situation of his divorce proceedings. The second letter was unclaimed and returned to ImmD.

20.By letter dated 15 May 2025 (which the Applicant collected on 24 May 2025), ImmD notified the Applicant that as no new matters had been raised for reconsideration, the Refusal Decision still stood. He was required to leave Hong Kong on or before 29 May 2025.

21.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 31 August 2024.

C.  Intended Grounds of Review

22.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.

23.In a way with which I agree, Mr Ko has summarised the Grounds 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 had granted joint custody of the Son to him and the Wife and his presence in Hong Kong is necessary for the well-being of the Son.

(3)  The divorce proceedings were still ongoing. He would be deprived of the opportunity to make an application regarding custody of the Son if he were to leave Hong Kong.

(4)  His presence in Hong Kong is necessary for the care and well-being of the Son, 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 Son, especially when the Family Court has imposed a restriction for him 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.

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

25.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

26.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.

27.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.

28.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.

29.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.

30.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.

31.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.

32.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

33.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.

34.Mr Ko submitted that the complaint made by the Applicant is in effect as to 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 Son 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 Son 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, this is a matter for the Director to decide: BI v Director of Immigration [2016] 2 HKLRD 520 at §105.

(4)  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.

(5)  The Applicant failed to meet the eligibility criterion of the Dependant Policy 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.

(6)  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 Son.

35.I accept Mr Ko’s submissions.

36.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.

37.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.

38.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.

39.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.

40.Indeed, it seems to me that it was open to the Director to take into account (as he did in the context of the custody and parenting factor) that the Applicant offered no information or document in support of his (strong) connection with the Son, which is shown in the relevant parts of the internal minutes.

41.As pointed out by Mr Ko 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 Son is a HKPR, that does not confer rights in the immigration context on the Applicant.

42.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 Son 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) 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 (2) there is no bar to the Family Court ordering the payment of maintenance for the benefit of the Son, payable by a father outside Hong Kong. Though perhaps not to this level of specificity, these points were not overlooked by the Director in his consideration.

43.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 arguably suggesting that he was treated differently and/or discriminated against as a male applicant in an application for extension of stay.

F.  Result

44.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.

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

The applicant, acting in person

Mr Eric Ko, Senior Government Counsel of the Department of Justice, for the putative respondent.