So Tsz Man, A Minor, By His Next Friend and Mother, Nurhayati v. Director of Immigration
Read the full judgment text of HCAL 2549/2024 on BabelCite. This High Court CFI judgment was delivered on 2 December 2025.
1. The issue in this case is whether the impugned decision is the result of an error of public law, or an example of the old maxim dura lex sed lex – the law may be harsh, but it is the law – which reflects that the legal system must operate on principle rather than emotion, even when individual outcomes may seem to many to be unfortunate.
Cites 12 cases
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HCAL 2549/2024 [2025] HKCFI 5815 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2549 OF 2024 ________________________
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___________________ J U D G M E N T ___________________ A. Introduction 1.The issue in this case is whether the impugned decision is the result of an error of public law, or an example of the old maxim dura lex sed lex – the law may be harsh, but it is the law – which reflects that the legal system must operate on principle rather than emotion, even when individual outcomes may seem to many to be unfortunate. 2.The Applicant is a 12-year-old Hong Kong Permanent Resident (“HKPR”), born and raised in Hong Kong. Because he is a minor, he acts by his next friend who is his mother (“Mother”). 3.The Mother is an Indonesian national who has been on recognizance in Hong Kong since lodging a non-refoulement claim in March 2014, which was unsuccessful despite many appeals. In fact, the Mother is the subject of a Restricted Proceedings Order (“RPO”) dated 3 March 2023. In making the RPO, the Court found that, “if unrestrained, it is likely that [the Mother] would proceed with this and other legal proceedings for the sole purpose of remaining in Hong Kong only”. 4.The Applicant’s father, Mr So Chak Sum (“Mr So”), was a HKPR. But he passed away in March 2018. 5.The Applicant, as a HKPR, has never been refused entry to Hong Kong. Instead, it was the Mother who applied to the Director of Immigration (“Director”) on 17 April 2024 for entry for residence as a “dependant” in order to take care of the Applicant (“Without Sponsorship Application”). The application failed. 6.By his Form 86, the Applicant seeks leave to apply for judicial review so as to challenge the decision of the Director dated 19 September 2024 (“Decision”) refusing to grant the Mother permission to reside in Hong Kong as the Applicant’s dependant, or on any other basis. 7.I directed a rolled-up hearing, originally fixed for 20 March 2025. But that hearing and subsequent hearing dates were vacated and re-fixed pending determination of the Applicant’s application for legal aid and then a legal aid appeal, which was allowed by Notice of Decision dated 24 June 2025. Solicitors and counsel were assigned on 4 July 2025. By directions dated 15 July 2025 the parties’ agreed timetable was ordered in terms, and among other things the Applicant was to apply for leave to amend by 24 July 2025 and the rolled-up hearing was re-fixed for 10 November 2025. The hearing proceeded on the basis of the amended Form 86 (“AF86”). 8.At the rolled-up hearing, the Applicant was represented by Mr Josh Baker of Counsel, and the Director was represented by Ms Leona Cheung, Principal Government Counsel (assisted in the written skeleton argument by Mr Andrew Tong, Government Counsel). 9.At the end of the hearing, I reserved my decision to be handed down later. This is my Judgment. B. Background 10.The Applicant was born on 29 July 2013, in the Princess Margaret Hospital. As stated above, he is a HKPR born to the since deceased HKPR Mr So and his Indonesian recognizance-holder Mother. He is now 12 years old studying in a public government school. His first language is Cantonese. 11.Since Primary 2, the Applicant has been diagnosed with Specific Learning Difficulties, receiving regular speech therapy at the school. Recently he has been referred by the Student Health Service for a medical appointment at the Paediatrics Unit of Kwong Wah Hospital for obesity. 12.The Mother was formerly a foreign domestic helper. She says that, by taking up employment in Hong Kong, she escaped from her Indonesian family who forced her to marry at a young age. She met the late Mr So in around 2009 and developed a romantic relationship. 13.She last came to Hong Kong on 3 September 2012 on the strength of a domestic helper visa. She became pregnant with Mr So’s child and gave birth on 29 July 2013. Because of her pregnancy, her employment contract was terminated prematurely in April 2013. She was nevertheless permitted to stay as a visitor until 9 September 2013. 14.Fearing separation from her son and the risk of harm by her Muslim family and community upon returning to Indonesia, the Mother overstayed her visa. 15.On 18 March 2014, the Mother lodged a non-refoulement claim, on the basis that (1) her sister had threatened her with social isolation if she returned to Indonesia with the Applicant on account of his being a non-Muslim born out of wedlock, and (2) she and the Applicant faced ostracism and destitution on return / relocation to Indonesia. 16.The non-refoulement claim and a subsequent claim request were refused. There is now the RPO in respect of the Mother’s non-refoulement claim. I note that claim did not directly concern the Applicant’s relocation to Indonesia, but the possibility of relocation was part – perhaps the main plank – of argument on the Mother’s claim. 17.In March 2018, when the Applicant was 4 years old, Mr So, aged 53, died of heart disease. As the sole parent and caregiver of the Applicant, the Mother provides emotional and daily care, including schooling and medical appointments for the Applicant. The Applicant receives Comprehensive Social Security Assistance which covers the family’s daily expenses. 18.Without a valid visa, the Mother is subject to removal from Hong Kong. As Mr So passed away before he could marry the Mother, the Mother is not eligible to apply for a dependant visa as a spouse. 19.In October 2018, a Removal Order was issued. The Director has not gainsaid representations that the Mother has been “threatened” with removal by the Director’s office. But, in any event, the Removal Order evidences the intention that the Mother be removed. 20.Worrying that the Applicant would be left alone in Hong Kong, the Mother applied for residence in Hong Kong as a dependant of the Applicant, appealing to the Director on humanitarian and compassionate grounds. By way of letter dated 5 April 2024, the Applicant’s solicitors wrote a supporting letter for the visa application, highlighting the following aspects:
21.On 29 May 2024, the Director replied that as the Mother does not fall within any identified categories of dependants, the application does not meet the eligibility criteria and therefore falls outside the existing immigration policy. 22.On 11 June 2024, the Applicant’s solicitors, inter alia, cited authority for the Director’s exercise of his discretion in granting permission for the Mother to stay on humanitarian or compassionate grounds and urged the Director to engage in that exercise. C. The Decision 23.On 19 September 2024, the Director refused the application (i.e. the Decision). The Decision letter reiterated that the Mother’s dependant visa application fell outside the existing immigration policy categories, and concluded that:
24.Disclosure has been given of the Director’s internal memorandum (“Memorandum M.2”), dated 24 August 2024, endorsed on 29 August 2025, which evidences the consideration of and reasons for the Decision. As there was some argument in this case as to what is shown by the Memorandum M.2, it is convenient to set out the material majority of it, as follows – noting that there is embedded frequent reference to the documents annexed to the memorandum shown by the numbers in square brackets:
25.The recommendation was endorsed in the following terms:
D. Intended Grounds of Review 26.By his Amended Form 86, the Applicant advances two grounds of review against the Decision:
27.Before turning to consider each Ground in turn, it is helpful to look at applicable legal principles, and then to consider a case which Mr Baker said was analogous to this one, and on which he placed great reliance. E. The Law 28.It is trite that Hong Kong maintains a strict and well-established immigration policy, under which a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission. 29.Within this overarching policy, the Government has formulated various specific immigration policies to be given effect by the Director to allow a limited number of persons in specified categories to come to Hong Kong, such as for the purposes of working, studying, as dependants, as visitors, etc. What is consciously and consistently absent is any category of “family union”. Indeed, the Dependant Policy, on which the Applicant / Mother in part relied, is expressly not a policy for family reunion. 30.The Immigration Department has published the ‘Guidebook for Entry for Residence as Dependants in Hong Kong’ (“Guidebook”). The Guidebook has set out, amongst other things, the relevant ‘Eligibility Criteria’ at §§3 and 5. Only a person who is the spouse, the unmarried child under the age of 18, or the parent above the age 60 of the Hong Kong sponsor is eligible to apply for a dependant visa to come to Hong Kong. Further, even if the applicant falls within these eligible categories, he or she must also satisfy the three eligibility requirements set out before the application would be favourably considered. 31.If the application does not meet these eligibility criteria, the Director may, in the exercise of his residual discretion under the overall immigration policy, consider whether there are exceptional humanitarian or compassionate circumstances to justify a departure from the policy to grant a dependant visa to an applicant. Since the exercise of discretion in favour of a person who has no right of abode or right to land in Hong Kong will result in departure from overall immigration control policy and the different guidelines or policies, there must be very strong justifications before the Director would do so. 32.However, the Director is not bound to take account of humanitarian or compassionate considerations. Hence, any judicial review grounds contending that the Director “failed” to take into account such considerations, without more, will fail. 33.Further, where however the Director does (voluntarily) go on to consider whether humanitarian or compassionate circumstances exist, what factors to take into account and what weight to give them is a matter for the Director – subject only to review on conventional administrative law grounds. 34.The principles concerning the Court’s approach in dealing with judicial reviews in the immigration context are well-established. I recently summarized them in Lilik-Sunarsih v Director of Immigration [2025] HKCFI 2664 at §§52-57. Of particular relevance to the present challenge are that:
35.The last point means that there is no “right” to have a child’s best interests or the sundering of family ties considered by the Director. 36.That said, the rights to which the section 11 reservation has no application – i.e. those absolute and non-derogable rights such as the prohibition against cruel, IDT or punishment contrary to BOR 3 – must be respected: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743. F. Suggested Analogous Case 37.Mr Baker emphasised that the case of SS v Director of Immigration [2018] 6 HKC 282 (CFI) was analogous to the present case, and in that case the application for judicial review was allowed. 38.The case concerned the Director’s refusal of a dependant visa to the sister of the HKPR sponsor, but at the same time as allowing a dependant visa to the sponsor’s father. 39.The JR applicant was the HKPR sponsor, while the visa applicant was her non-resident sister who suffered from psychiatric problems and required constant family care. Although the sister was capable of working, she required “constant care and supervision” to stay on medication and maintain personal hygiene, failing which there was a risk of relapse. Thus the sister was “not capable of independent living” (§§19-22). Following their mother’s death, their elderly father struggled to provide care alone in India. The sponsor intended to bring both family members to Hong Kong. The Director granted the father’s dependant visa application but refused the sister’s, deeming her case “outside policy” with insufficient humanitarian or compassionate circumstances to warrant an exception. 40.The first ground which turned on the content and meaning of the Dependant Policy was rejected by the Court. The third unfair procedure ground succeeded since the visa sponsor was not given a fair opportunity to put in material that (i) showed that she would have greater difficulty remaining in India than in Hong Kong and (ii) explained what private care would be like / whether it would be inhuman or uncompassionate. Au J (as he then was) added that the Director’s suggestion that the sister could be placed in a private care centre or with a hired caregiver in India was also procedurally unfair. This fundamentally ignored the medical evidence that her “entire emotional and physical wellbeing” depended significantly on family care, and that she had been regularly in the care of her family. 41.But Mr Baker placed most reliance on the second ground, which was also accepted. Notwithstanding the careful and restrictive approach of the Court to a Wednesbury challenge of the Director’s exercise of discretion in relation to humanitarian or compassionate considerations, the Court found the Director’s decision was Wednesbury unreasonable for failing to take into account relevant considerations. Au J (as he then was) explained why at §§56-72. In summary:
42.Mr Baker therefore submitted that the case demonstrated that where the Director does consider humanitarian and compassionate circumstances, and where they include potential relocation of the HKPR to their country of nationality, then what would happen there must be relevant. By analogy, Mr Baker submitted that in the present case, what would happen to the HKPR Applicant if he were to be relocated to Indonesia must also be a relevant factor to consider. 43.Mr Baker also relied on the decision in SS to show that the Court will engage with the Director’s reasoning process in the exercise of the humanitarian and compassionate consideration, and where appropriate the Court will see if the admittedly high Wednesbury burden is satisfied in the particular case. 44.In her submissions, Ms Cheung sought to distinguish the case of SS from the present case, concluding that it is not always helpful to draw reference from other cases. In particular, she said:
45.I take these submissions into account in my analysis of the Grounds, though I do not think the case as helpful as Mr Baker suggested. 46.But I should state that I accept in broad terms that (1) what is or is not a relevant factor to bring into the consideration will vary on the particular facts of the case, and that (2) in an appropriate case, the Court will engage with the Director’s reasoning potentially to assess its reasonableness in the public law sense (but keeping in mind throughout the high burden of establishing unreasonableness). G. Ground 1: Wednesbury Unreasonableness 47.It is trite law that a decision is Wednesbury unreasonable where it is so unreasonable that no reasonable authority could ever have come to it. As already stated, the threshold for establishing such unreasonableness in the public law sense is high. 48.The Applicant contends that the Decision was Wednesbury unreasonable both in substance and procedurally. Mr Baker identified four specific errors or problems in the Director’s reasoning as set out in the Memorandum M.2, the material parts of which I have set out above. I will address each of these alleged errors in turn, as did Mr Baker and Ms Cheung, whilst recognising some degree of overlap between them. G.1 Problem 1: Failed to Consider Consequences of Removal 49.The Memorandum M.2 at §8.3 states:
50.In relation to that paragraph, Mr Baker argued that there were representations made in the 5 April 2024 letter that the removal of the Mother would constitute a de facto removal of the Applicant, as well as representations on the Applicant’s reliance on the Mother, impact on the Applicant’s education and learning difficulty. Since none of these representations were dismissed in the Memorandum M.2 as being implausible or incredible, the Director should have considered that for the Applicant, a HKPR, the visa refusal would mean having to leave Hong Kong for a place and culture he has never experienced, facing risks of ostracism and destitution. These are matters of “family care” that, according to Mr Baker, must have been relevant – in the same way that the prospect of “family care” for the sister was relevant in the SS case. 51.However, looking at the Memorandum M.2 and the Director’s evidence, Mr Baker submitted that the Director had actually failed to consider the consequences of the Mother’s visa refusal on the Applicant. He argued that there was no evidence that any consideration was given to the prospect of the Applicant relocating to Indonesia. He submitted that this factor was merely recited in the summary of facts at §6.1(m) in the Memorandum M.2, but was given no weight. In the hearing, Mr Baker emphasised that where a factor ought to be considered, it ought to be given weight. A mere recital of the factor was therefore insufficient. 52.On the other hand, Ms Cheung submitted that this argument should fail in limine, because the potential consequences of the Mother’s removal as provided to the Director were in fact fully spelled out and taken into consideration in the Memorandum M.2. This included:
53.Ms Cheung added that the Applicant’s approach of singling out certain paragraphs while ignoring the rest of the minutes is misleading and untenable. She argued that it is unrealistic to suggest that the Director, having set out the history and grounds for request (with clear reference to the supporting letters and the submissions made in them) in the minutes, did not have the Applicant’s submissions in mind when making a decision. Nor does an adverse decision imply that those considerations were not taken into account. 54.I agree. Indeed, in Kamran Javid v Permanent Secretary for Security [2023] HKCFI 1944 at §§52-55, I considered a submission similar to that made by Mr Baker:
55.I reject Mr Baker’s suggestion that a supposed “mere recital” (itself a loaded phrase) of a fact shows that it was not actually considered unless later given specific weight, for the same reasons I gave in Kamran Javid. The location of a consideration within a document does not necessarily indicate the weight attributed to it. Nor do all factors to be considered need expressly to be given any particular weight in the overall balancing exercise. The fact that the Director ultimately reached a conclusion unfavourable to the Applicant does not indicate the relevant considerations were ignored. Rather, it reflects the Director’s assessment, within his wide discretionary powers, that these circumstances did not as a whole amount to exceptional humanitarian or compassionate grounds necessary to justify departure from established immigration policy. 56.On the materials, it seems to me to be clear the Director had not failed to consider the potential consequences to the Applicant of the removal of the Mother. This is to be distinguished from the position in the SS case, where the Director had clearly omitted a relevant factor. The summary of facts in the Memorandum M.2 demonstrates that the Director was aware of and considered the various circumstances and potential consequences raised in the application. As correctly pointed out by Ms Cheung, it specifically acknowledged the Applicant’s status as HKPR, his upbringing in Hong Kong, his limited familiarity with Indonesian culture, and the potential difficulties he might face upon a relocation. 57.Further, and in any event, Ms Cheung submitted that even if (which is not accepted) there had been no consideration by the Director of such humanitarian or compassionate grounds, it would not constitute a failure to take into account relevant considerations in law, as they are not mandatory considerations to start with. As Ms Cheung submitted, humanitarian and compassionate grounds are not mandatory considerations that the Director must take into account in every case. However, I think that point of law is less relevant here, because the Director plainly did take those considerations into account. 58.As already stated, the law is clear that the Director has a broad discretion in immigration matters, and the Court will not lightly interfere with his assessment of what factors are relevant to a particular decision, or what weight each factor should be given in the final assessment. 59.For these reasons, I find that Problem 1 was not an error on the Director’s part. G.2 Problem 2: Speech therapy 60.Memorandum M.2 at §8.4 states:
61.Reading this paragraph, Mr Baker submitted that the Director had wrongly thought that the Applicant would remain in Hong Kong, and thus failed to consider the real effects of the Mother’s Removal Order on the Applicant (i.e. a relocation to Indonesia). As a result, he said, the Director wrongly concluded that there was no reason that speech therapy would be discontinued. In his evidence, the endorsing officer stated that he concurred with the immigration officer’s view that “the Applicant was also receiving necessary treatment in Hong Kong and there was no indication that this treatment would be discontinued”. Yet in the 5 April 2024 Letter at §24, it was clearly represented that “the removal of [the Mother] may result in the de facto removal [of the Applicant] [whose] relocation to Indonesia would result in the discontinuation of … speech therapy”. It follows, Mr Baker submitted, that the Director proceeded on a factual basis unsustainable in light of the material before him. 62.Mr Baker acknowledged the alternative that the Director considered that speech therapy would be available in Indonesia. However, he argued that this was nonetheless wholly speculative and without evidential basis, and thus reviewable under Wednesbury. 63.Conversely, Ms Cheung submitted that it is common ground that the Director did take into account the prospects of the Applicant’s continuation of speech therapy. She argued that the Applicant’s case ignores the fact that the statement in the 5 April 2024 Letter was a “one-liner bare assertion”. It was open to the Director reasonably to consider that the Mother’s removal would not necessarily result in a “de facto removal” of the Applicant – its first appearance being in the 5 April 2024 letter, despite it being subsequently repeated about four times in that same letter. She submitted that it was not Wednesbury unreasonable to consider that the Applicant, as a HKPR and with access to social welfare and educational support, could remain in Hong Kong. 64.Ms Cheung therefore submitted that it was entirely within the realm of reasonable conclusions for the Director to conclude, on the materials provided before him, that “[t]here is no reason that the Applicant will discontinue to receive speech therapy, if necessary”, or that the Applicant’s relocation to Indonesia “would” result in the discontinuation of speech therapy. 65.I accept Mr Baker’s submission that there may be legitimate concerns about the availability of comparable speech therapy services in Indonesia, particularly considering the language barrier (the Applicant perhaps likely requiring speech therapy in both Cantonese and Bahasa). However, I agree with Ms Cheung’s submission that the Applicant will continue to have access to speech therapy if he remains in Hong Kong – which is a viable option in the present case. 66.This goes to Ms Cheung’s broader argument that it was within the reasonable realm for the Director to consider that the Applicant may well remain in Hong Kong and consequently that speech therapy would continue to be available. The Director cannot be expected to take into account all possible paths that might be proposed by the Mother and the Applicant. It was thus reasonable for the Director to base his considerations on the viable option and status quo that the Applicant, as a HKPR, could remain in Hong Kong. The suggestion that the Applicant would necessarily relocate to Indonesia presumes an entitlement of family unity – whereas there is in fact no legal entitlement to family unity in Hong Kong’s immigration policy. 67.Further, I note that even the solicitors’ letter seems to me fairly to have recognized the correct position when it was said (my emphasis) that removing the Mother “may lead to his de facto removal to Indonesia despite being a Hong Kong permanent resident who is entitled to live in Hong Kong” and that it is “highly unlikely for [the Applicant] to receive the level of special care addressing his educational needs in Indonesia that is comparable to that provided in Hong Kong”. 68.Where immigration policy is well-established, despite the understandable desire for mother and son to stay together, no presumption of family unity exists. The Director was therefore not required to assess the availability of “comparable” speech therapy in Indonesia on the assumption that the Applicant would necessarily relocate there, where there exists the perfectly viable option of the Applicant remaining in Hong Kong, as a HKPR, with access to increased social services and speech therapy sessions if required. 69.I do not think the analysis in the SS case changes the above analysis. In that case, the sister’s psychiatric illness was both severe and medically proven. But, regardless of whether the evidence of speech therapy in the present case is “flimsy” or not (and I think there was at least a proper basis for the points made to the Director, and in submission in these proceedings), the nature of hardship in the two cases is different. As stated in the SS case at §§69-71, the sister’s “best interests” were relevant because her care (being a person suffering from psychiatric illness, requiring the regular family care) would be so adversely affected by not granting her a dependant visa. Conversely, in the present case, the Applicant’s condition (requiring speech therapy sessions) would not be adversely affected by the grant or refusal of the Mother’s visa. Whether or not the Mother is granted the visa, the Applicant would continue to have his speech therapy sessions. This is because the refusal of the Mother’s visa does not compel the Applicant’s removal, nor would the Mother, an able-bodied Indonesian citizen capable of re-establishing herself, face IDT risk if relocating back to Indonesia. 70.Moreover, the nature of choice in SS was fundamentally different. There, no viable or realistic option existed. The sister either had to be abandoned alone in India without care, despite evidence that she was not capable of independent living, or the sponsor had to relinquish her HKPR status and return to India, which goes against the rationale of the Dependant Visa Policy to keep the sponsor in Hong Kong, as iterated in SS. In the present case, the Applicant is himself a HKPR, who is already residing in Hong Kong and receiving care here. He can be under no threat of removal, and therefore has the viable option to remain in Hong Kong. 71.I do not think Problem 2 identifies that the Director acted in a way which was Wednesbury unreasonable. G.3 Problem 3: “Outside policy application” 72.Memorandum M.2 at §8.5 states:
73.Memorandum M.2 at §8.6 further states:
74.Looking at this, Mr Baker submitted that the Director had wrongly applied dependant visa policy material and considerations to an outside policy application. Instead of asking “notwithstanding that certain criteria of the Dependant Policy had not been met, would the application warrant exceptional consideration in light of humanitarian and compassionate circumstances?”, the Director asked the question of “is the policy criteria met?”, thereby setting the application up to failure. 75.Relying on the principles in C v Director of Immigration (2013) 16 HKFCAR 280 at §74 and Aita Limbu v Director of Immigration (unreported, HCAL 133/1999, 10.12.1999) at §3, Mr Baker submitted that, in exceptional outside policy applications, the criteria of the policy should not be rigidly imposed to the applicant’s detriment. This would include, for example, reference to the fact that the Applicant, a student, is not currently able to demonstrate an income level sufficient to support the Mother. To do so would be to leave the “exceptional” nature of the consideration an empty fiction. He again pointed to the SS case, at §73(3):
76.In response, Ms Cheung emphasised the importance of viewing the Decision in context. The Without Sponsorship Application was initiated and presented by the Mother’s solicitors as a dependant visa application. It was thus natural and reasonable that the Director consider the eligibility criteria under the Dependant Policy. 77.Further, Ms Cheung suggested that the approach taken by the Director was a “textbook” approach. This two-fold/bifurcated approach involves: (1) first to consider whether an applicant’s situation falls within the policy by reference to the eligibility criteria, and if not (2) to consider whether there are grounds for granting permission to stay on exceptional humanitarian and compassionate basis. The personal circumstances of an applicant would fall to be taken into account under the Director’s residual discretionary considerations under the exceptional compassionate and humanitarian basis. 78.Ms Cheung summarised that the Director’s approach in the present case was as follows:
79.Ms Cheung therefore submitted that, despite the wording at §8.6 of M2, the Without Sponsorship Application was not refused because the Applicant did not meet the financial eligibility criteria, but because the humanitarian and compassionate circumstances were considered insufficient to warrant departure from the existing Dependant Policy. §8.6 was simply an additional point – an obiter point, as she put it – that did not affect the overall reasoning and decision. 80.Mr Baker, in his oral submissions, disagreed that this was a textbook approach. He contended that the Director’s approach actually involved three steps rather than two – first considering the Dependant Visa Policy criteria, secondly humanitarian grounds, and then thirdly incorrectly returning to the Dependant Visa Policy criteria. 81.I agree with Mr Baker’s observation that the Director’s approach did not strictly follow the two-step bifurcated approach as suggested by Ms Cheung. There appears to be a problematic third step where, after considering humanitarian and compassionate grounds, the Director unnecessarily returned to the financial criteria of the Dependant Visa Policy. This approach risks undermining the very purpose of considering exceptional circumstances outside the normal policy framework. 82.However, reviewing the Decision as a whole, I am not persuaded that this constitutes a Wednesbury unreasonable approach. The Director clearly acknowledged that the application fell outside the existing immigration policy and proceeded to consider whether there were humanitarian or compassionate grounds warranting exceptional consideration – which he considered there were not. Although the reference to the financial criteria in §8.6 was unnecessary and perhaps confusing, the overall reasoning indicates that the Director did engage in the appropriate assessment of whether exceptional circumstances existed, and it seems the financial criteria would not have changed the reasoning. 83.I also note that part of the confusion may stem from the continued use of terminology like “sponsor” and “applicant” when – at least once it is recognized that the visa applicant is not eligible as a dependant – the Applicant is not truly functioning as a sponsor in the conventional sense under the Dependant Visa Policy. 84.For these reasons, despite an element of infelicity of phrasing in Memorandum M.2, I do not think there was Wednesbury unreasonableness in the Decision on Problem 3 that would justify this Court’s intervention. G.4 Problem 4: “No” Humanitarian or Compassionate Circumstances 85.Memorandum M.2 at §8.7 states:
86.Mr Baker submitted that this conclusion was flatly and plainly wrong in light of the 5 April 2024 Letter. He argued that in the letter, the facts clearly establish grounds capable of constituting “humanitarian” and “compassionate” grounds and “extenuating circumstances” within the ordinary meaning of those words. In particular, he referred to the facts that the Mother was the Applicant’s sole caregiver following the death of Mr So, the Applicant received speech therapy in Hong Kong, he has only ever known Hong Kong and has no ties to Indonesia, and that they both face social isolation and destitution if returned to Indonesia. 87.Alternatively, Mr Baker criticised the evidence filed for the Director which suggests that the issue was whether those facts were “sufficiently” exceptional to justify departure from the Dependant Policy, consistent with the wording at §8.2 of Memorandum M.2. Following this wording, Mr Baker argued that the Director’s finding of insufficiency was unsustainable and unreasonable. He submitted that one can hardly think of a more deserving set of circumstances than to permit a HKPR child of 12 years old to remain here being cared for by his Mother, his father having died suddenly when he was 4, so as to avoid orphanage / social care in Hong Kong or social ostracism / destitution in Indonesia. Mr Baker argued that if the present circumstances are not “sufficient” to warrant departure, the scope for grant is vanishingly if not impossibly thin. 88.Mr Baker further submitted that the Director’s assessment of “sufficiency” must be sustainable on the material before him. Otherwise, the Court would be permitting the Director to rely on a mere statement that he weighed matters to avoid review of even the most absurd conclusions, effectively ousting Wednesbury grounds of review, an approach explicitly rejected in earlier decisions of the Courts. 89.Conversely, Ms Cheung submitted that, when all contemporaneous records are considered in context, it cannot be credibly suggested that the Director considered there were “no” strong grounds, but merely that the grounds advanced were not sufficient to warrant a departure from the policy. She submitted that meant the Applicant was really extending a blatant invitation to the Court to revisit the Director’s judgment call made in the Director’s wide discretion on the weight to be given to the compassionate or humanitarian considerations. But the weight to be given to compassionate or humanitarian considerations is a matter for the Director, and the role played by the Court remains only supervisory in nature: see, for example, Waseem Ghousia v Director of Immigration [2025] HKCFI 3524 at §26; and Kamran Javid at §56. In the present case, what the Applicant is essentially arguing is that a different view should be taken that the personal circumstances relied upon by the Applicant and his Mother were of such weight as to warrant departure from the overall stringent immigration policy designed, which deliberately does not include any category of residence for “family unity” purposes. However one may sympathise with the Applicant, Ms Cheung submitted that it cannot be said that the Decision was perverse or so far outside the range of reasonably possible decisions as would lead to a conclusion that it was irrational or Wednesbury unreasonable. 90.Ms Cheung also reminded that, in relation to any reliance on the Applicant’s status as a HKPR in Hong Kong, it bears reiteration that contentions on a right to remain in Hong Kong so as to take care of a child who is a Hong Kong permanent resident have been carefully considered and rejected: see Comilang v Director of Immigration (2019) 22 HKCFAR 59. Even though the Applicant is a HKPR, that does not confer rights in the immigration context on the Mother. 91.First, having read §8.7 of the Memorandum M.2 in the context of the entire decision-making process, I am satisfied that what the Director meant was that the humanitarian and compassionate circumstances present in this case were not sufficiently compelling to warrant a departure from the established immigration policy. This is consistent with the Director’s approach as outlined in §8.2, which acknowledges that such circumstances would be “examined and considered”. 92.Secondly, there is certainly room for a different opinion on whether the Mother’s and Applicant’s circumstances warrant exceptional consideration as should lead to the grant of a visa, but I do not think it can be said that the Director’s conclusion falls outside the range of reasonable decisions open to him. 93.The Court’s role is supervisory in nature and not to substitute its own judgment for that of the Director on matters of weight. The circumstances of this case, while undoubtedly challenging for the Applicant and the Mother, do not compel a finding on Problem 4 that the Director’s decision was so perverse or irrational as to be Wednesbury unreasonable. G.5 Conclusion on Ground 1 94.While I accept that Ground 1 raised a reasonably arguable ground of review, Ground 1 is not made out on substantive review. H. Ground 2: Failure to Consider IDT H.1 BOR 3 95.BOR 3 prohibits IDT absolutely. Mr Baker argued that BOR 3 questions are relevant in the present case because the Applicant had made representations claiming that if the visa application was refused, the Applicant (a HKPR) would be taken by the Mother to Indonesia, where they would “face circumstances amounting to inhuman and degrading circumstances”. 96.Mr Baker relied on these legal principles:
97.Applying these principles, Mr Baker submitted that when exercising a statutory discretion that is constrained by a constitutional limit – here BOR 3 – the Director ought to have considered whether that constitutional limit has been exceeded on the available materials. It follows that in this case, the Director would have been legally required by BOR 3 to grant the visa if, as a result of his not granting it, the Applicant or the Mother faced a “substantial and imminent” risk of IDT in Hong Kong, or a “real risk” on “substantial grounds” of IDT in Indonesia. In the premises, it was ultra vires for the Director to refuse the visa application. 98.Mr Baker submitted that the remaining questions are therefore (1) what amounts to IDT and (2) whether it was credibly alleged in this visa application. 99.As to what amounts to IDT, Mr Baker relied on Lord Bingham’s speech in the leading case of R (Limbuela) v SSHD [2006] 1 AC 396 (HL), §§7-8, which was applied in Ubamaka at §173:
100.Specifically, he highlighted that discrimination and social ostracism in Indonesia are recognised grounds of non-refoulement protection in Hong Kong, capable of amounting to IDT. He pointed to Re Liana Risdianti [2022] HKCA 1058, at §22:
101.As to the remaining question of whether there was, in fact, a substantial and imminent risk or a real risk on substantial grounds, of the Applicant suffering IDT on relocation to Indonesia, Mr Baker submitted that the material put to the Director suggested there was:
102.I note that in the Notice of Decision regarding the Mother’s non-refoulement decision dated 7 April 2017, the Director laid out reasons for refusing her non-refoulement claim. In summary:
103.These reasons have survived appeals. Nonetheless, I keep in mind Mr Baker’s point that the Mother’s non-refoulement claim did not directly concern risk to the Applicant. I accept that children’s claims are separate, and risk that does not meet the threshold in the case of an adult may do so in respect of a child: see Beagum Shufia v TCAB [2024] 5 HKC 593 (CA), at §17(1)-(2). 104.I also note Mr Baker’s further submissions that:
105.In my summary of them, Ms Cheung first made the following submissions in opposition to Mr Baker’s BOR 3 submissions:
106.In response to this point, Mr Baker argued that despite the “magic words” of BOR 3 not being mentioned explicitly in the letters, the facts referred to clearly pointed to such risk. Mr Baker also brought to my attention in the hearing that when the Applicant’s solicitors asked the Director if they could file another application that includes BOR 3, this was ignored. 107.I accept that BOR 3 considerations do not need to be explicitly labelled as such to be properly raised before the Director (though that would, of course, be preferable). The substance of the 5 April 2024 Letter, which detailed the potential hardships facing the Applicant in Indonesia, should have been sufficient to put the Director on notice that IDT issues might be engaged. 108.But, Ms Cheung further submitted, again in my summary of them:
109.On that last point, Ms Cheung submitted that there is no direct link between the refusal of the Mother’s visa and the Applicant’s removal from Hong Kong. The Applicant is a HKPR with right of abode in Hong Kong and cannot be subject to removal or deportation. The refusal of a dependant visa to, or the removal of, the Mother does not have the effect of the claimed “de facto removal” of the Applicant to Indonesia. Rather, the effect on the Applicant is that he (and his Mother) will be faced with a choice whether the Applicant remains in Hong Kong under the care of social services in Hong Kong or the Applicant proceeds to Indonesia with the Mother. While the choice is admittedly difficult (as with any hard immigration cases), Ms Cheung submitted that there is no legal basis to support a contention that being faced with the choice itself amounts to IDT. In any event, no such contention has been made by the Applicant, and no authority has been cited to suggest that the separation of a child from his parent, in circumstances where the child is taken care of by the social welfare services (and with no reason to think there will be discontinuation of education and speech therapy), would contravene BOR 3. 110.I accept that submission. There is a crucial distinction between this case and the authorities relied on by Mr Baker. Unlike in those cases, the Applicant here is not subject to removal or deportation by the Hong Kong authorities. I acknowledge that the refusal of the Mother’s visa creates a difficult choice for the family, but it does not amount to a “de facto removal” of the Applicant. This distinction is significant. In the cases relied upon by Mr Baker, the state action directly led to the risk of IDT. Here, any risk of IDT to the Applicant in Indonesia would result from a voluntary decision by the Mother to take him there, rather than leaving him in Hong Kong under the continuing care of social services. While this is undoubtedly a painful choice for any parent and child to make, I am not persuaded that facing such a choice itself constitutes IDT. 111.I also do not think being faced with the difficult choice creates the relevant risk as would trigger BOR 3. In any event, I also agree that the risk of IDT, even if established, would not create a legal obligation on the Director to grant the Mother’s visa application. H.2 At Common Law 112.Further and/or alternatively, Mr Baker submitted that these grounds run as common law principles that circumscribe the exercise of statutory discretion in circumstances where destitution or starvation is foreseeable. The premise is that, properly construed, statutory powers to grant visas are not so broad as to permit destitution. 113.Mr Baker relied on R (W) v SSHD [2020] 1 WLR 4420, §§60-61, where the Divisional Court held that a “no recourse to public funds” condition imposable under statute could not be used / would have to be lifted by dint of ECHR 3 where, otherwise, the person in question risked destitution – before adding that the same result would follow at common law. The Court offered the following analysis:
114.Mr Baker submitted that the same reasoning applies here. The principle of legality is a canon of statutory interpretation in Hong Kong and means that “fundamental principles of law” cannot be overridden except by express words or necessary implication: see A v Commissioner of the Independent Commission Against Corruption (2012) 15 HKCFAR 362, at §24. 115.The statutory provision empowering the Director to grant, refuse and impose conditions on visa applications, namely section 11 of the Immigration Ordinance Cap 115 (“IO”), does not expressly authorise exercise where the result risks destitution. Referring to the R (W) case at §§34-36, Mr Baker suggested that section 11 was enacted against the backdrop of this fundamental “anterior law of humanity” and the Court will, by the principle of legality, interpret it as intended to respect that prohibition – since no express words say otherwise. 116.Mr Baker considered and rejected the contention that the common law protection against causing destitution is overridden by “necessary implication” in the immigration context (i.e. immigration law would not override the common law protection). Referring to A v Commissioner at §§31-32, Mr Baker argued that this requires examining the statutory context. While the Director had argued that section 11 is enacted for strict immigration control, and would therefore necessarily imply a power to cause individuals to be returned to destitution, Mr Baker argues “this is unlikely in the extreme”. This is, he suggested, exactly what the constitution says cannot be done, referring to Ma CJ’s comment in Ubamaka, at §2, in response to a similar submission, that it was “deeply unattractive”. 117.Therefore, Mr Baker submitted:
118.However, while I accept that the principle of legality is an important canon of statutory interpretation in Hong Kong, I do not find that it constrains the Director’s discretion in the way Mr Baker suggests. Section 11 of the IO grants the Director broad discretionary powers in immigration matters, and these powers must be exercised in accordance with Hong Kong’s stringent immigration policy. 119.In any event, there is also the same factual problem of linkage. Firstly, the Mother’s own claim to destitution in Indonesia has been rejected, and I see no reason to permit her to run the same argument again in her own respect in these proceedings. Therefore, on the basis that she could re-establish herself in work in Indonesia, there is no reason to think that she would be destitute (or that the Applicant would be destitute if he were to move with her). Secondly, it is not the refusal of the visa to the Mother and her removal which is the risk of destitution or social ostracism for the Applicant. He is a HKPR, with no possibility of involuntary removal, and he is entitled to the social welfare, education and health support available to him as a HKPR. Quite simply there is no deliberate action of the state as would deny the Applicant shelter, food or the most basic necessities of life. H.3 Conclusion on Ground 2 120.For these reasons, I do not find that the Director erred in failing explicitly to consider BOR 3 implications. Nor do I find that BOR 3 and the common law principles relied upon by Mr Baker constrained the Director’s discretion such that he was obliged to grant the Mother’s visa application. 121.Ground 2 fails. I. Results 122.Notwithstanding that some might think that this application is really brought by the Mother in the name of the Applicant child for her own vicarious reasons, I have tried to focus on the Applicant’s interests. Nevertheless, it is to be remembered that the visa was refused to the Mother, and it is that refusal decision which is the subject matter of the judicial review. Ultimately, with that focus, the problem with that challenge is that the decision to refuse the visa, and the remaining potential for the removal of the Mother, does not actually necessarily cause the relocation of the Applicant. This is, as I have said, very different from some of the other cases to which reference has been made. 123.Therefore, whilst I am sympathetic to the Applicant himself, and recognize hard choices may face the Mother, it seems to me that neither ground of review succeeds. 124.In the circumstances, the application is dismissed. 125.I see no reason why costs should not follow the event, and in the exercise of my discretion I order the Director’s costs to be paid by the Applicant, to be taxed if not agreed. The Applicant’s own costs will be taxed in accordance with the legal aid regulations.
Mr Josh Baker, instructed by Patricia Ho & Associates, for the Applicant Ms Leona Cheung, Principal Government Counsel, and Mr Andrew Tong, Government Counsel, of Department of Justice, for the putative respondent |
Cases cited in this judgment