LIMBU BINITA v. DIRECTOR OF IMMIGRATION

HCAL 647/2026

[2026] HKCFI 1948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 647 OF 2026

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D E C I S I O N

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A.  Introduction

1.  By Form 86 dated 27 March 2026, the Applicant seeks leave to apply for judicial review so as to challenge a “decision” dated 26 March 2026 (“Decision”) made by an immigration officer, refusing deferral of departure and requiring her to leave Hong Kong two days later on 29 March 2026, in the circumstances that her permission to stay in Hong Kong had expired on 13 August 2025 and her previous request to defer departure had been refused.

2.  Having considered the materials, I am satisfied that it is appropriate to deal with this application on the papers.

B.  Background

3.  The Applicant is an Indian national, born in 1985. She apparently came to Hong Kong to work as a foreign domestic helper.

4.  The Applicant married a Mr Lingden Limbu Mahendra Kumar (“Husband”) on 20 November 2023. The Husband is a Nepali national and a Hong Kong permanent resident (“HKPR”). The Applicant was granted a dependant visa, based on the marriage and with the Husband as sponsor.

5.  The dependant visa expired on 13 August 2025, and the Husband refused to act as sponsor for the extension of the dependant visa after that date.

6.  In the meantime, the Applicant’s daughter (“Daughter”) was born on 5 May 2025. The Daughter is a Hong Kong permanent resident, with right of abode established under paragraph 2(e) of Schedule 1 to the Immigration Ordinance Cap 115 (“Ordinance”). Because the Daughter does not yet have a passport, she cannot travel outside Hong Kong.

7.  As stated, the Applicant’s limit of stay expired after 13 August 2025. It seems that by letter dated 13 February 2026, the Applicant requested deferral of her departure (though the letter was not provided with the affirmation).

8.  It can be noted that the application made to the Indian Consulate for a passport for the Daughter was apparently dated (only) on 13 February 2026 – the date of the request for deferral of departure – and the appointment at the Consulate was (only) earlier on the same day that the Applicant renewed the request for deferral, 26 March 2026 (see below).

9.  As to the first request for deferral of departure, by letter of 13 February 2026 an immigration officer acting for the Director of Immigration responded in the following terms (bold and underline in original):

I refer to your letter dated 13 February 2026 requesting for deferral of your departure.

Please note that your limit of stay in the Hong Kong Special Administrative Region (“HKSAR”) has already expired after 13 August 2025. You are now required to leave the HKSAR on or before 26 March 2026. Staying in the HKSAR beyond this date will be a breach of condition of stay, which is an offence under section 41 of the Immigration Ordinance, Chapter 115. Any person who has breached his/her condition of stay in Hong Kong is liable to prosecution and removal under provisions of the same Ordinance.

Please take note that this letter is not to be construed as an approval of your application for an extension of stay. Your limit of stay has expired and has not been extended.

A sealed departure document has been issued to you today to facilitate your departure. Please be reminded to leave the HKSAR on or before 26 March 2026 and present the said departure document upon the departure clearance.

10.  On 26 March 2026, the Applicant wrote a letter addressed to the Chief Immigration Officer (“CIO”) in the following terms:

Re: Request for toleration of Limbu, Binita

I am writing to respectfully apply for an extension of my stay in Hong Kong.

It is submitted that on 26 March 2026, I attended the Consulate General of India in Hong Kong with my daughter to apply for her new passport. The Consulate informed me that additional documentation is required, specifically:

•  A copy of my husband’s Nepali passport

•  Evidence of my limit of stay in Hong Kong

Due to these additional requirements, I was unable to complete the passport application process on this occasion. The Consulate has advised that I will need to schedule a further appointment to finalise the application.

I regret to inform you that I was unable to book an appointment for today as the Indian Consulate’s online booking website experienced a technical crash during the process.

I respectfully request an extension of my limit of stay to allow sufficient time to finalise the application.

11.  In passing, I also note that the papers filed with this judicial review application include a copy of the Husband’s passport (but with an expiry date of 25 November 2025), and there is a handwritten notation suggesting that an appointment may have been made to attend the Indian Consulate on 1 April 2026.

12.  The Applicant, together with her representative Mr Bam, attended the Immigration Department to present the 26 March 2026 letter on that day to request the further toleration pending completion of the Daughter’s passport application. The Applicant says that a Senior Immigration Officer Mr Tsoi told her that the Daughter’s passport situation was “not his problem” and told her that she “must leave today”. He also told her that the CIO was unavailable, but had been contacted and who said that the Applicant must leave Hong Kong on or before 29 March 2026. The Applicant says that Mr Tsoi told her that she should “not come back again for further toleration”.

13.  By reference to another person’s experience as well as hers, the Applicant suggests that there is a pattern of dismissive conduct, refusal to follow fair procedures and possible discriminatory treatment towards South Asian applicants.

14.  The Applicant was given a letter dated 26 March 2026, in almost identical terms to the 13 February 2026 letter, save that the date for the required departure from the HKSAR was stated to be on or before 29 March 2026 – i.e. the impugned Decision.

C.  Intended Grounds of Review

15.  The Applicant identifies five intended grounds of judicial review, which she sets out broadly as follows:

(1)  Illegality: Failure to consider relevant factors, including the Daughter’s right of abode and inability to travel with the Applicant without a passport. The Daughter’s passport application is pending with the Indian Consulate, requiring further documentation. By ignoring these factors, the Director misapplied the law and failed to discharge his duty in accordance with the Ordinance and the Basic Law protections afforded to permanent residents.

(2)  Irrationality: Ordering departure despite knowing compliance is impossible. The Daughter cannot lawfully or practically leave without a passport, and requiring the Applicant to leave would result in family separation and hardship, where the Applicant had provided evidence of ongoing Consulate processing.

(3)  Procedural Impropriety: Refusal to allow access to the CIO on two occasions; failure to provide reasons; dismissive conduct by saying “not his problem” and “do not come back again”. This undermines the Applicant’s right to be heard and to escalate matters for fair consideration.

(4)  Disproportionate Interference: Failure to balance the rights of a permanent resident child under Article 24 of the Basic Law, and the Applicant’s right to family unity under Article 36 of the Basic Law. No balancing exercise was undertaken to assess the impact on the child’s welfare and rights.

(5)  Discrimination: Pattern of adverse treatment toward South Asian dependants. The refusal to consider legitimate family circumstances and denial of procedural fairness may amount to racial bias.

16.  Though there is obviously some degree of overlap between them, I can deal with each of the grounds in turn.

D.  Illegality

17.  There is no reasonably arguable illegality. Since the expiry of her limit of stay on 13 August 2025, the Applicant has remained in Hong Kong unlawfully. The fact that another family member may have HKPR status does not give the Applicant any such or similar status or entitlement to remain in Hong Kong. Indeed, it is trite that even the dependant visa policy is not a policy for family union or reunion.

18.  It is also trite that in making immigration decisions, the Director is under no duty to take into account humanitarian or compassionate factors. If he voluntarily takes such factors into account, the weight to be attached to them is a matter for the Director and not the Court (subject only to interference on established judicial review grounds, such as irrationality).

19.  It can also be noted that despite her visa expiring on August 2025, the Applicant seems to have taken no steps to seek to obtain a passport for the Daughter until very recently. Seeking to rely on the time now needed as a result of her own delay does not identify any arguable misapplication of the law on the part of the Director.

E.  Irrationality

20.  There is likewise no arguable irrationality. Compliance with the requirement for the Applicant to leave is obviously not impossible (even if she might naturally prefer to wait until she can take the Daughter).

21.  The weight to be given, if at all, to the resulting family separation and any hardship is a matter for the Director to weigh. It may be that the Applicant had provided evidence of ongoing Consulate processing, but it is also correct that her previous request for deferral was refused on 13 February 2026, the day the Applicant apparently applied for a passport for the Daughter – which was not obtained within even the next six weeks.

F.  Procedural Impropriety

22.  There is no arguable procedural impropriety. The Applicant had no particular procedural right to speak directly to the CIO. But it is clear that, despite the fact that he was otherwise engaged, his input was sought and obtained before the Applicant’s request for deferral was refused. From the time which the Applicant herself says was taken over the consideration – in excess of 25 minutes – and because the basis of her application was set out in her own letter, the reasons why the Applicant sought deferral of departure were plainly ‘heard’ and the request was ‘escalated’ to the CIO for his consideration.

23.  Adequate reasons for the refusal were provided, in that it was made clear to the Applicant that her permission to stay in Hong Kong had long ago expired, and that allowing her to depart on or before 29 March 2026 was not to be taken as approval for an extension of stay dismissive. Further, though the language attributed to Mr Tsoi (if correct) might have been more gently put, the failure on the part of the Applicant to have already obtained a passport for the Daughter was indeed not a problem of Mr Tsoi’s making, and where she had previously requested deferral of departure on a similar basis which had been refused, the second refusal might reasonably have been accompanied by the request for the Applicant not simply to come back again.

G.  Disproportionate Interference

24.  There was no reasonably arguable disproportionate interference. As already stated, the weighing and balancing of the respective positions of the Applicant and the Daughter was a matter for the Director.

H.  Discrimination

25.  Nor do I think there is any reasonably arguable ground of review based upon alleged discrimination. Each immigration application falls to be dealt with on its own facts and circumstances, and I am not prepared to infer from the minimal details provided by the Applicant as regards another person’s application some general discriminatory approach.

26.  In any event, on the facts revealed by the Applicant herself, her application for deferral of departure – itself the renewal of a previously refused request despite no or little change in circumstances – was entertained. At bottom, the Applicant simply disagrees with the decision not to permit her to defer her departure.

I.  Further Point and Delay

27.  It seems to me that a further point also arises for consideration.

28.  The Applicant’s limit of stay expired after 13 August 2025. Though she does not in fact make any complaint about the expiry of her permission to stay in Hong Kong (or any refusal to extend it), the time for doing so would have expired at the latest by mid-October 2025.

29.  Requesting a deferral of the departure necessitated by the expiry of the permission to stay does not extend the time for making any public law challenge to the requirement for departure.

30.  Further, the first request for deferral and its refusal were both dated 13 February 2026. The Applicant did not seek to challenge that refusal by way of judicial review, and instead only renewed the request for deferral on 26 March 2026, the last day for departure required by the refusal of the first request. When that second request was refused, the Applicant launched these proceedings just two days before the slightly extended deadline of 29 March 2026. But she sought no interim stay and it is arguable that this application has become moot.

31.  Similarly, I think it is at least strongly arguable that the refusal of the request to defer the Applicant’s departure from Hong Kong did not give rise to any decision amenable to judicial review. In essence, as the responses to the requests made clear, the Director was simply reasserting the consequences of the continued absence of permission to remain, and the continued failure to have departed. By refusing to defer departure, the Director did not create or change any existing right or entitlement previously existing. In essence, the Director was telling the Applicant (again) that she had no permission to stay and that she needed to leave, and informed her of the possible consequences if she failed to leave.

J.  Result

32.  For the above reasons, the Applicant has failed to identify any reasonably arguable grounds of review with any realistic prospect of success. Indeed, there is at least significant doubt that the impugned Decision is amenable to review.

33.  Therefore, the application for leave to apply for judicial review is dismissed.

34.  I make no order as to costs.

35.  Nevertheless, I acknowledge that, albeit late, the Applicant has been seeking a passport for the Daughter. Against the factual timetable identified above, it may be that by the date of this decision, the Applicant will in any event have obtained a passport for the Daughter enabling them both to travel – or to have travelled – (perhaps together).