Limbu, Preety v. Director of Immigration

HCAL 1961/2025

[2026] HKCFI 5700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1961 OF 2025

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D E C I S I O N

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A. Introduction

1.By her Form 86 dated 1 September 2025, the Applicant sought leave to apply for judicial review so as to challenge the decision dated 21 August 2025 (“2^nd Decision”) made by the Director of Immigration (“Director”), confirming his earlier decision dated 16 April 2025 refusing the Applicant’s application for extension of her dependant visa (“1^st Decision”).

2.By my directions, I gave leave to the Director to file an Initial Response to the application, and for the Applicant to file a Reply.

3.The Initial Response was served by Ms Karen Ngai, Senior Government Counsel, and Mr Gabriel Cheung, Acting Senior Government Counsel, of the Department of Justice, for the Director.  The Applicant filed a Reply to that Initial Response.

4.Having considered the materials, I am satisfied that I can appropriately deal with the application on the papers.  This is my Decision.

B.  Factual Background

5.I can set out the following background matters, much of which has been helpfully summarised in the materials filed by the parties, including the Form 86 and supporting affirmation filed by the Applicant, the Initial Response and the Reply.

B.1  The Applicant’s background, marriage and the dependant visa applications

6.The Applicant is a national of India.  She was born in September 1995 in India.

7.On 15 October 2022, she was permitted to enter Hong Kong to take up employment as a foreign domestic helper (“FDH”).  The permission to remain in Hong Kong was valid until 15 October 2024 or two weeks after termination of her FDH contract, whichever was earlier.

8.On 28 July 2023, the Applicant married Mr Prem Bahadur Rai (“Husband”), who is a Hong Kong permanent resident.  On 2 August 2023, the Applicant submitted to the Immigration Department (“ImmD”) her first application (“1^st Application”) for extension of stay and change of status from a FDH to a dependant of her Husband (as sponsor of her residence in Hong Kong).

9.On 29 August 2023, the 1^st Application was refused by the Director, who was of the view that the Husband was not financially capable of supporting the Applicant’s living at a standard well above the subsistence level in Hong Kong.  The detailed reasons for the refusal are set out in the Internal Minute M.1 dated 28 August 2023, and are in summary that:

(1)  For the period between May and July 2023, the average monthly salary of the Husband was HK$18,721.  The balance of his personal bank account was HK$63,490.71.  His credit score fell into category A with no outstanding loan.

(2)  The Husband was renting a flat in Wanchai (“Flat”) with a monthly rent of HK$11,200.  Despite his claim that his dependant son, Mr Ashok Rai (“Son”) who was first granted an entry dependant visa in May 2012 under his sponsorship, was contributing HK$6,000, it ought to be the Husband’s responsibility to provide the Son with financial support and suitable accommodation for the Son’s living in Hong Kong.

(3)  The Husband was also paying a monthly salary of HK$4,630 for hiring a FDH.

(4)  The Husband had a disposable income of HK$2,891 (i.e. HK$18,721 – HK$11,200 – HK$4,630) for a family with three members.  So, the Director was not satisfied that the Husband was financially capable of supporting the Applicant’s living at a standard well above the subsistence level in Hong Kong.  There was no indication of extenuating grounds for exceptional consideration.

10.On 20 September 2023, the Applicant submitted her second application (“2^nd Application”) for extension of stay and change of status from a FDH to a dependant of the Husband, which was refused on 2 January 2024 as the Director was not satisfied that the Husband was financially capable of supporting the Applicant’s living at a standard well above the subsistence level in Hong Kong.  A summary of the reasons for the refusal of the 2^nd Application, as set out in the Internal Minute M.1 dated 28 December 2023, is as follows:

(1)  The monthly salary of the Husband was HK$18,600.  The balance in his personal bank account was HK$92,843.71.  His credit score fell into category B with an outstanding balance of HK$58 for his credit card.

(2)  The Husband was still renting the Flat with the monthly rent of HK$11,200.  Despite his claim that his Son was contributing HK$6,000, it ought to be his responsibility to provide the Son with financial support and suitable accommodation for the Son’s living in Hong Kong.  Of particular note was that by its letter dated 20 October 2023 and also through the Husband’s visit to ImmD’s office on 7 December 2023, ImmD explained to the Husband a sponsor’s full responsibility to provide suitable accommodation to his dependant(s).

(3)  On 15 December 2023, the Husband terminated the contract with the FDH.

(4)  In light of the updated financial information, the Husband only had a disposable income of HK$7,400 (i.e. HK$18,600 – HK$11,200) for a family of three.  Hence, the Director was not satisfied that the Husband was financially capable of supporting a family of three at a standard well above the subsistence level in Hong Kong.  There was no indication of extenuating grounds for exceptional consideration.

11.On 18 March 2024, the Applicant submitted her third application (“3^rd Application”) for extension of stay and change of status from a FDH to a dependant of the Husband to ImmD.  By letter dated 20 April 2024, ImmD informed the Applicant that subject to provision of a termination letter from her employer stating an effective end date of employment, the 3^rd Application was approved.  The Applicant’s FDH contract was terminated on 21 April 2024.

12.On 26 April 2024, a visa for change of status as a dependant was issued to the Applicant, who was granted permission to stay in Hong Kong as a dependant of the Husband with a limit of stay until 26 April 2025.  The detailed reasons for approving the 3^rd Application are set out in the Internal Minute M.1 dated 18 April 2024, which are in summary that:

(1)  In addition to the Husband’s full-time employment as a security guard with a monthly salary of HK$18,600, he was working as a “Senior HR (Part Time)” at a restaurant with a monthly salary of HK$7,500.  His average monthly income from January to March 2024 was HK$23,866.  A balance of HK$122,136.65 was maintained in his personal bank account and his credit score fell into category A with no outstanding loan.

(2)  The Husband was still renting the Flat at a monthly rent of HK$11,200 and was residing with the Son.

(3)  In light of the updated financial information, the Husband had a disposable income of HK$12,666 (i.e. HK$23,866 – HK$11,200) for a family of three.

(4)  As (a) the relationship between the Applicant and the Husband was believed to be genuine, (b) the Husband was able to support the Applicant’s living at a standard well above the subsistence level in Hong Kong, and (c) the Applicant fell within the Dependant Policy to join the Husband in Hong Kong, the 3^rd Application was approved.  An alert indicator has been switched on in respect of the Applicant to review the Husband’s employment and financial situation upon the next application.

B.2  The Applicant’s application for extension of stay

13.On 29 March 2025, the Applicant submitted to ImmD an application for extension of stay in Hong Kong (“E/S Application”).

14.On 16 April 2025, the E/S Application was refused (i.e. the 1^st Decision), because the Director was not satisfied that the Husband continued to be financially capable of supporting the Applicant’s living at a standard well above the subsistence level.  A summary of the reasons for the refusal, as set out in the Internal Minute M.2 dated 16 April 2025, is as follows:

(1)  The Husband was working as a full-time security guard with an average monthly salary of HK$19,012 between April 2024 and March 2025.  He declared that he had no other income other than salaries from his full-time employment.  He maintained a balance of HK$31,405.53 in his personal bank account and his credit score fell into category C with an outstanding credit card balance of HK$68,371.

(2)  The Husband was still renting the Flat with a monthly rent of HK$12,000.

(3)  The Husband was hiring a FDH and paying a monthly salary of HK$4,870.

(4)  In light of the updated financial information, the Husband had a disposable income of HK$2,142 (i.e. HK$19,012 – HK$12,000 – HK$4,870) for a family of three.  Hence, the Director was not satisfied that the Husband continued to be financially capable of supporting the Applicant’s living at a standard well above the subsistence level in Hong Kong.  There was no indication of extenuating grounds for exceptional consideration.

B.3  The Applicant’s request for reconsideration of the 1^st Decision

15.On 26 April 2025, ImmD received the Applicant’s request for reconsideration of the 1^st Decision.

16.On 28 April 2025, the Applicant submitted a data access request for the internal minutes regarding the refusal of the E/S Application and all documents submitted in the E/S Application.  The requested documents were released to the Applicant on 20 June 2025.

17.In support of the reconsideration request, the Applicant provided ImmD with further documents which showed that:

(a)  the Husband had terminated the contract with the FDH;

(b)  the Husband had sub-leased his rented flat and his monthly rental expenses were HK$6,000.

(c)  the Son was currently sharing a flat with his friends with a monthly rent of HK$4,000.

(d)  The Husband had an average monthly salary of HK$17,570 from May 2025 to July 2025, and maintained a balance of HK$60,100.27 in his personal bank account.

18.In light of the updated financial information, it was observed that (i) the Husband’s average monthly income had decreased from HK$19,012 to HK$17,570; (ii) although the Husband’s monthly expenditure had decreased due to the termination of employment with his FDH and the sharing rental expenses, the Husband was still responsible for the daily expenses of his dependant Son; and (iii) the Husband therefore had a disposable income of HK$7,570 (HK$17,570 – HK$6,000 – HK$4,000) for a family of three.  Hence, the Director was not satisfied that the Husband was financially capable of supporting the living of two dependants at a standard well above the subsistence level in Hong Kong.

19.On 21 August 2025, i.e. the 2^nd Decision, the Director confirmed his 1^st Decision refusing the Applicant’s application for extension of her dependant visa.

20.On 28 August 2025, the Applicant and her representative attended the office of ImmD and submitted another reconsideration request to ImmD by way of two letters dated 27 and 28 August 2025.

21.The Applicant commenced the present proceedings on 1 September 2025.

22.At the time of her application, her immigration status was that she had no valid limit of stay in Hong Kong since 27 April 2025.

C.  Grounds of Review

23.The Applicant raised three intended grounds of review to challenge the Director’s 2^nd Decision.  In a way with which I agree, Ms Ngai summarised the Grounds as follows:

(1)  Ground 1 – Wednesbury unreasonableness: The 2^nd Decision was irrational as there was no material difference between the Husband’s financial situation when the Applicant’s 3^rd Application was approved and the Husband’s financial situation at the time of her E/S Application or reconsideration request.

(2)  Ground 2 – Misinterpretation of the Dependant Policy: The aim of the Dependant Policy should not be to expect families to live in the same circumstances as at the time of the application for a dependant visa and the dependant visa holder to be merely present in Hong Kong and not to contribute to the expenses of the family.  Given that she was earning about HK$25,000 per month, the presence of a FDH and higher rent should not have any adverse effect on her E/S Application.  Moreover, the Son is responsible for his own earnings and living expenses and it was wrong for the Director to require the Husband to be financially capable of supporting both the Applicant and the Son.

(3)  Ground 3 – Failure to take into account relevant considerations: The Director failed to take into account the age of the Husband and the difficulties that the Husband and the Applicant would face on resettlement in India or Nepal.

24.I can deal with each of the Grounds in turn.

D.  Legal Context

25.Before doing so, I can usefully set out some relevant legal principles relating to visa applications and extensions of stay, which were addressed as follows in my decision in Lilik-Sunarih v Director of Immigration [2025] HKCFI 3438 at §§52-54.  Those principles are also applicable to the present case.

26.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.

27.It is also trite 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.

28.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.

E.  Ground 1: Wednesbury Unreasonableness

29.The crux of the Applicant’s complaint under Ground 1 is that compared with the situation when her 3^rd Application was approved, there had been no change in her Husband’s earnings and expenses and the Director should have reconsidered and approved her E/S Application, in particular that:

(1)  The Husband had been working for the same employer at the same position since April 2022, earning a similar salary of about HK$19,000 for the past 3 years.

(2)  They had terminated the contract with the FDH.

(3)  The spare room previously occupied by the Son had been sub-leased.  After deducting the rental expenses of HK$6,000, the Husband still had a disposable income of HK$13,000 which was believed to be enough to support the Applicant’s living well above the subsistence level in Hong Kong.  Also, he did not have any outstanding loan and had a balance of about HK$60,000 in his personal bank account.

30.In the Reply, the Applicant emphasised that though she understood and accepted that the Husband should be able to provide for her living in Hong Kong, the Husband should not be the only person to earn for the family (when the family comprises an able-bodied wife and an adult child, who are both capable of earning for the family), so that it was unreasonable and irrational for the Director to only calculate the earnings of the Husband and completely exclude the earnings of the Son and to expect the dependants to do nothing for the family and sustain their livelihood on the earnings of the sponsor.  But this can be addressed in the context of Ground 2, below

31.With respect, I do not think that the main argument advanced by the Applicant has any merit.  I agree with Ms Ngai’s analysis that the crux of the Applicant’s argument goes to the assessment made by the Director that the Husband failed to meet the requirement that he was financially capable of supporting the living of the Applicant at a standard well above the subsistence level in Hong Kong under the Dependant Policy (“Financial Capability Requirement”).

32.On the facts of the present case and looking at the contemporaneous documents including the internal minutes of ImmD as a whole, there is no evidence suggesting that the Director erred in law, nor was there any procedural unfairness, let alone any alleged unreasonableness in the Wednesbury sense, in respect of the Director’s consideration of and assessment on the E/S Application or reconsideration.

33.I also accept Ms Ngai’s submission that the Applicant’s complaint could not be substantiated for the following reasons.

34.First, the Applicant’s attack on the Director’s assessment of the Husband’s financial situation is essentially a merits challenge.  It is not the duty of the Court to conduct a review of the merits of the Director’s decision unless it is obvious that the Director has acted perversely, or in breach of some other public law requirements.

35.Secondly, as canvassed above, in view of the apparent change in the Husband’s financial situation, it is clear that the Director already considered the financial circumstances of the Husband in detail, and came to the reasonable conclusion that the Husband did not reach the required objectively acceptable financial standard.

36.Thirdly, it is correct that the Court will give a wide margin of appreciation to the Director’s assessment of the relevance of various matters and the weight to be attached to them in light of the broad nature of his discretion, the high policy context on immigration matters, and the fact that the Court does not have the relevant expertise in immigration matters.

37.Ground 1 is not reasonably arguable with any realistic prospect of success.

F.  Ground 2: Misinterpretation of the Dependant Policy

38.Under Ground 2, the gist of the Applicant’s complaint is that the aim of the Dependant Policy should not be to expect families to live in the same circumstances as at the time of the application for a dependant visa and the dependant visa holder to be merely present in Hong Kong and not to contribute to the expenses of the family.  The presence of a FDH and higher rent, when the total household income was about HK$44,000, should not have had any adverse effect on her E/S Application. But for the refusal of the Applicant’s E/S Application, she would have been earning about HK$25,000 per month and would have been able to improve the living standard of both the Husband and the Applicant by hiring a FDH and living in the flat without a co-tenant.

39.Hence, as Ms Ngai identified, the complaints of the Applicant are twofold:

(1)  It was wrong for the Director to expect families to live in the same circumstances as at the time of the application for a dependant visa and the dependant visa holder to be merely present in Hong Kong and not to contribute to the expenses of the family, which the Applicant said is not the aim of the Dependant Policy.

(2)  It was wrong for the Director to require the Husband to show that he was financially capable of supporting the living of both the Applicant and the Son well above the subsistence level in Hong Kong.

40.In the Initial Response, Ms Ngai provided the submissions on these two aspects at some length, which I broadly accept and can summarise as follows.

41.In relation to the first aspect, the Applicant’s interpretation of the Dependant Policy regarding the Financial Capability Requirement is not correct for the following reasons:

(1)  Dependency is an essential element of the Dependant Policy.

(2)  According to §5(c) of the Guidebook, it requires the showing of dependency of the foreign applicant on his or her Hong Kong sponsor.  The argument that the sponsor and the applicant have the right to make their own financial arrangements as a family is misconceived.  Under the context of a strict immigration control, it is legitimate for the Director to impose the Financial Capability Requirement.

(3)  What is or not an acceptable living standard is to be objectively assessed by the Director, drawing upon the experience and knowledge of living in Hong Kong by the Director and his authorised officers.

(4)  If taking up employment in Hong Kong is a primary or main purpose of applying for a dependant visa, and not only to be with family, the applicant does not qualify under the Dependant Policy.

(5)  Given the special geographical, economic and social circumstances of Hong Kong, under the restrictive immigration control, it is rational and legitimate for the Director to insist upon true financial dependency on the part of an applicant and on the part of his or her sponsor.

42.Therefore, it is legitimate and fair for ImmD to require that it is for the Husband (i.e. the sponsor) to demonstrate that he has the financial capability to support the Applicant (i.e. the dependant)’s living at a standard well above the subsistence level in Hong Kong after deducting his regular outgoing expenses, rather than relying on a computation based on household income as suggested by the Applicant.  Arguments based on family rights, including the right to make independent financial arrangement based on a family unit, cannot be substantiated.

43.As regards the second aspect, there is no legal error in requiring the Husband to show that he was financially capable of supporting the living of both the Applicant and the Son well above the subsistence level in Hong Kong, as under the Financial Capability Requirement it must be that the Husband is able to show that he has the financial means to support the Applicant in substance and in reality.  In his assessment process, the Director must be entitled to look at all other regular and reasonable expenses that the Husband is required to pay.  Even though the Son is an adult, and resided separately from the Husband, the fact that the Son remains the Husband’s dependant under the Dependant Policy cannot be disregarded.

44.On the facts of the present case as traversed above and by a proper interpretation of the Dependant Policy, there is no basis for suggesting that the Director’s decisions were made wrongly in principle, i.e. there was no misapplication of the Dependant Policy by the Director.

45.Ground 2 is not reasonably arguable with any realistic prospect of success.

G.  Ground 3: Failure to Take into Account Relevant Considerations

46.The crux of the Applicant’s criticism underpinning Ground 3 is that the Director failed to consider that the Husband is 62 years old, and that if the Applicant were to return to India, it would lead to a lot of hardship for the Husband and the Applicant because it would be impossible for the Husband to settle in India or Nepal and find suitable employment at this age, and the society in their countries also would not accept them due to the age gap and marriage out of their communities.

47.In the Reply, the Applicant further alleged that the Director failed to consider their humanitarian and compassionate grounds, and failed to accord special treatment under the Dependant Policy.

48.I recognise that different persons (e.g. the Applicant) might take a different view as to whether his or her personal circumstances could or should justify the grant of visa or permission to stay on an exceptional basis – perhaps particularly if those circumstances are considered in a vacuum.  However, the Director is tasked with making individual decisions in light of the overall policies relating to immigration.

49.I accept Ms Ngai’s submission that there is no merit in the Applicant’s argument that the decisions were tainted with the alleged failure in taking into account relevant considerations, because:

(1)  The alleged difficulties that the Husband and the Applicant would face on resettlement in India or Nepal due to the Husband’s age had never been mentioned to the Director before the 1^st and 2^nd Decisions were made, and were only first raised in the Applicant’s letter dated 27 August 2025 making the 2^nd reconsideration request and in the Applicant’s application for leave to apply for judicial review. Therefore, it was not open to them to rely on these matters in the present proceedings to challenge the 2^nd Decision.

(2)  The Director is not obliged to take into account compassionate or humanitarian considerations.  If the Director does take such considerations into account, it is up to him to decide how much weight is to be given to them.

50.Ground 3 is not reasonably arguable with any realistic prospect of success.

H.  Conclusion

51.On the applicable law and principles, none of the proposed grounds of review is reasonably arguable with any realistic prospect of success.  Therefore, the Applicant’s application for leave to apply for judicial review is dismissed.

52.In the exercise of my discretion, I make no order as to costs.

The applicant, acting in person

Ms Karen Ngai, Senior Government Counsel, and Mr Gabriel Cheung, Acting Senior Government Counsel, of the Department of Justice, for the putative respondent