Waseem Ghousia v. Director of Immigration

CACV 660/2025, [2026] HKCA 460

On Appeal From [2025] HKCFI 3524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 660 OF 2025

(ON APPEAL FROM HCAL NO 1348 OF 2025)

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BETWEEN

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.This is the Applicant’s appeal against the order of Coleman J dated 15 August 2025 (“the Order”)  refusing to grant leave to apply for judicial review.  The intended judicial review is against two decisions of the Director of Immigration (“the Director”), the first one dated 15 April 2025 (“the 1^st Decision”)  refusing the Applicant’s application for extension of stay, and the second one dated 5 June 2025 (“the 2^nd Decision”)  maintaining the 1^st Decision upon re-consideration.

BACKGROUND FACTS

2.The basic facts of this case have been set out in the Judge’s written decision dated 15 August 2025 (“the Decision”), and will not be repeated here.  The following brief summary should suffice for the purpose of disposing of the present appeal.

3.The Applicant is a Pakistani national.  She married a Pakistani-Hong Kong permanent resident (“the Husband”)  in Pakistan in April 2017.

4.In September 2020, the Applicant applied to the Immigration Department to join the Husband as a dependant in Hong Kong.  The Applicant’s application was approved on 8 March 2021.  On 1 April 2021, the Applicant arrived in Hong Kong, with limit of stay on dependant status granted until 1 April 2022.  The Applicant and the Husband’s daughter (“the Daughter”)  was born in Hong Kong on 23 March 2022.  The Daughter is a Hong Kong permanent resident.  An extension of the Applicant’s dependant visa was later granted permitting her to stay in Hong Kong until 1 April 2025.

5.However, on 1 March 2024, the Husband informed the Immigration Department that he intended to withdraw his sponsorship of the Applicant as his dependant, apparently due to a breakdown of the relationship between them.  Their marriage ended in a divorce in Pakistan on 18 January 2025[1].

6.Apparently, the Applicant had already moved back to Pakistan with the Daughter in January 2023 prior to the divorce.  In March 2024, the Applicant came back to Hong Kong with the Daughter.  With the benefit of legal aid, she commenced proceedings in the Family Court in Hong Kong against the Husband, seeking an order of custody, care and control of the Daughter as well as monthly maintenance for the benefit of the Daughter.

7.On 24 March 2025, the Applicant, through her legal representatives, applied to the Director for extension of stay on her own merits, essentially on two grounds:

(1)  The Applicant had obtained legal aid to commence the aforesaid proceedings in Hong Kong against the Husband, and she wished to pursue those proceedings (“the Family Proceedings Factor”).

(2)  The Applicant was the sole caregiver of the Daughter, a Hong Kong permanent resident, who would be starting school in September 2025, and the Applicant had to stay in Hong Kong to continue to take care of the Daughter (“the Child Care Factor”).

8.By the 1^st Decision made on 15 April 2025, the Director refused the Applicant’s application for an extension of stay for the reasons summarized at §16 of the Decision, which we do not propose to repeat here.  The Applicant was required to leave Hong Kong on or before 29 April 2025.

9.By letters dated 22 and 28 April 2025, the Applicant’s legal representatives requested the Director to rescind the deadline on the Applicant to leave Hong Kong, and re-consider the application for extension of stay.  In those letters, the Applicant’s legal representatives stated that the Husband never took the responsibility of caring for the Daughter, and the Applicant had been unable to undertake employment because the Daughter was too young.  However, it was said the Applicant had applied for and successfully found a job in Hong Kong subject to the grant of a visa permitting her to stay in Hong Kong.

10.By the 2^nd Decision made on 5 June 2025, the Director maintained the 1^st Decision for the reasons summarized at §19 of the Decision.

11.On 12 June 2025, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the 1^st and 2^nd Decisions.  3 grounds of intended judicial review were raised in the Applicant’s supporting affirmation filed on 12 June 2025 (“the Supporting Affirmation”):

(1)  Ground 1 – there are exceptional compassionate and humanitarian grounds to justify granting an extension of stay to the Applicant so that she could take care of the Daughter, a Hong Kong permanent resident, with deep ties to Hong Kong.

(2)  Ground 2 – the 1^st and 2^nd Decisions were wrong in principle, because:

“A policy which requires the right to family reunion to be subject to condition that there must be a Hong Kong sponsor spouse who can financially provide a living standard and a habitable accommodation to the foreign spouse without burdening Hong Kong is open to question as such condition may be overridden by the Bill of Right[s]. In my present case this becomes side issue.”

(3)  Ground 3 – the sponsor policy is unreasonable, in that it is improper for a person who entered Hong Kong as a dependant of an eligible Hong Kong spouse to be treated as always being dependant on that spouse, and the Director should consider allowing a person to stay in Hong Kong and take up employment when he or she becomes independent, and where (as in this case)  the Daughter is a Hong Kong permanent resident and there are other relevant factors, ie the Family Proceedings Factor and the Child Care Factor, in play in the present case.

THE DECISION

12.The Judge heard the Applicant in person on 6 August 2025, and refused to grant leave to apply for judicial review by the Decision dated 15 August 2025.

13.In respect of Ground 1, the Judge held that it was open to the Director to conclude that there was no extenuating or humanitarian factor warranting an exceptional consideration of the Applicant’s application for extension of stay, when the Applicant could not otherwise bring herself within an established visa policy (such as the dependant visa policy). The Judge’s detailed reasoning is set out at §§25 to 28 of the Decision, as follows:

“[25] However, as the Director himself correctly noted when making the 1^st and 2^nd Decisions, it is well-settled that (1)  the Director is under no legal duty to take humanitarian/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/irrationality grounds.

[26] It is also well-settled that the unreasonableness/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.

[27] In this 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 herself within an established visa policy (such as the dependant visa policy). 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 Care Factor)  that there was no reason to think that the Applicant could not re-establish her life together with the Daughter in Pakistan, and continue to take care of the Daughter there – not least against the history that she did so for the 15 or so months between January 2023 and March 2024.

[28]  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)  the Applicant has apparently throughout been the sole caregiver of the Daughter, and as a matter of practicality currently exercises de facto sole custody, care and control; (2)  it is at least not unlikely that the de facto situation will be reflected in court orders to be made; (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 in Hong Kong notwithstanding that the mother and child are not in Hong Kong but in Pakistan. Though perhaps not to this level of specificity, these points were not overlooked by the Director in his consideration.”

14.In respect of Ground 2, the Judge considered that “it is well-settled against the overall restrictive immigration policy applied in Hong Kong that a person who does not have right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission.  Within that broad policy, specific immigration policies have been identified to deal with different categories of persons who wish to come to Hong Kong.  They allow a limited number of persons to come to Hong Kong for immigration purposes, which may include working, studying, establishing or joining any business, taking up residence as a resident or staying as a visitor.  The dependant policy is one such specifically formulated policy.”[2]  The Judge pointed out that the dependant policy is not a policy of family reunion.  Further, any reliance upon the Hong Kong Bill of Rights is subject to the immigration reservation in s 11 of the Hong Kong Bill of Rights Ordinance, Cap 383.  Any interests or rights in family life of an applicant who does not enjoy the right of abode in Hong Kong cannot override the general discretion of the Director to exercise immigration control in Hong Kong.[3]

15.In respect of Ground 3, the Judge noted that the question of whether a parent-applicant may assert a right to remain in Hong Kong so as to take care of his/her child who is a Hong Kong permanent resident has been considered by the courts up to the level of the Court of Final Appeal in Comilang v Director of Immigration (2019)  22 HKCFAR 59.  Even though the Daughter is a Hong Kong permanent resident, that does not confer rights in the immigration context on the Applicant as the caregiver[4].

THE PRESENT APPEAL

16.On 29 August 2025, the Applicant filed and served a Notice of Appeal against the Order.  In the Notice of Appeal, the Applicant raises the following ground of appeal:

“… the gravity of my circumstances have not been weighed or realized by putative Respondent while considering my dependent visa application of own merits. I should be given an opportunity to plead my case properly.” [sic]

17.On 15 December 2025, the Registrar of Civil Appeals directed, inter alia, that the Applicant shall lodge with the court 2 sets of skeleton argument not less than 28 days before the hearing of the appeal and, in the event the Applicant fails to lodge skeleton argument as directed, she shall be deemed to waive her right to have an oral hearing of the appeal and elect to have the appeal disposed of on paper.  The above directions were conveyed to the Applicant by a letter dated 17 December 2025 (“the Directions Letter”)  sent by post to the Applicant’s address for service as stated on the Notice of Appeal, viz “Flat B, 3/F, No.23 Lung To Street, To Kwa Wan, Kowloon”.  This was also the Applicant’s address as stated on the Form 86 and the Supporting Affirmation.

18.On 5 January 2026, the court gave notice to the Applicant that her appeal would be heard on 25 March 2026 (“the Notice of Hearing”).

19.On 14 January 2026, the Directions Letter was returned undelivered.

20.On 28 January 2026, the Director informed the court that according to the available records, the latest reported address of the Applicant should be “Room B, 2/F, 21 Lung to Street, To Kwa Wan, Kowloon” (“the Updated Address”).  The Applicant had not, however, informed the court of any change of her address.

21.On 29 January 2026, the court re-sent copies of, inter alia, the Directions Letter and Notice of Hearing to the Applicant at the Updated Address.  The post containing those documents has not been returned to the court.

22.On the materials before us, we are satisfied that the Applicant has properly been served with the Directions Letter and Notice of Hearing.  She has failed to lodge any skeleton argument in accordance with the directions given by the Registrar of Civil Appeals.  Accordingly, the Applicant is deemed to have waived her right to have an oral hearing of the appeal and elected to have the appeal disposed of on paper.  Having considered the documents in this case, we are satisfied that it is appropriate to deal with the Applicant’s appeal on paper, and we now proceed to do so.

DISCUSSION

23.The matters raised in the Notice of Appeal plainly do not constitute any valid ground of appeal:

(1)  The Applicant’s allegation that the Director failed to appreciate or weigh the gravity of her circumstances when he considered the Applicant’s applications for extension of stay is a bare assertion without particulars.  In any event, it was a matter for the Director to decide what, if any, weight should be given to the Applicant’s personal and family circumstances.  The Director was entitled to apply the well-established strict immigration policy in Hong Kong.  His decisions refusing to grant extension of stay to the Applicant were not irrational.  We can see no proper public law grounds to challenge those decisions.

(2)  As for the contention that the Applicant should be given an opportunity to plead her case properly, the Applicant did have such an opportunity.  Her grounds of application for judicial review were fully set out in the Supporting Affirmation, and she was given, and attended, an oral hearing of her application for leave to apply for judicial review on 6 August 2025 before the Judge.  At that hearing, she was provided with the assistance of an Urdu interpreter.

24.We have also considered the 3 grounds of judicial review raised by the Applicant, and are satisfied that they were properly and correctly dealt with by the Judge.  We agree with the Judge’s reasoning as to why none of them is reasonably arguable with any realistic prospect of success.  We would merely add that the Applicant’s complaints about the dependant policy under Grounds 2 and 3 are, in any event, misplaced.  The subject matters of her intended challenge by way of judicial review, as stated in the Form 86, are the 1^st and 2^nd Decisions, by which the Director refused her applications for extension of stay “on her own merits”[5]. The Applicant’s applications were not for a dependant visa.  Hence, any challenge to the reasonableness or legality of the Director’s dependant policy would be outside the scope of the Form 86.  In any event, the reasonableness and legality of the Director’s dependant policy have been upheld, and the policy applied, by the courts in numerous cases.  We can see no valid legal ground or basis for the Applicant to challenge either the reasonableness, or the legality, of the Director’s dependant policy.

25.In all, we are satisfied that the Applicant’s appeal has no merit.

DISPOSITION

26.The Applicant’s appeal is dismissed.  In view of the fact that the Director has not taken any active steps in relation to the appeal (other than indicating that he opposes the appeal and providing the court with the Updated Address of the Applicant), we make no order as to the costs of the appeal.

The Applicant, acting in person

Department of Justice, for the Putative Respondent