MR. AHMED SHAH v. THE DIRECTOR OF IMMIGRATION

HCAL 2666/2024

[2025] HKCFI 216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2666 OF 2024

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D E C I S I O N

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A. Introduction

1.  By Form 86 dated 31 December 2024, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Director of Immigration.  Though the actual impugned decision is not specified on the face of the Form 86, the supporting affirmation identifies the impugned decision to be the Director’s refusal on 13 September 2021 (“Refusal Decision”)  to grant a dependant visa to the Applicant’s son (“Son”)  and/or the refusal on reconsideration notified to the Applicant by letter dated 11 October 2021 (“Reconsideration Decision”).

2.  I am satisfied that it is appropriate to deal with this application on the papers.  This is my Decision. 

B.  Material Background

3.  For reasons which will become apparent, the material background can be dealt with quite succinctly. 

4.  The Applicant is a Pakistani national, who came to Hong Kong and claimed non-refoulement protection, which claim was substantiated on 21 February 2011.  In October 2012, the Applicant married a Hong Kong permanent resident and himself obtained a dependant visa to reside in Hong Kong. After seven years of ordinary residence, his Hong Kong permanent residency status was confirmed on 15 April 2021. 

5.  Almost immediately thereafter, on 24 April 2021, the Applicant as sponsor submitted an application for a dependant visa for the Son, who was born in Pakistan on 5 July 2003. Hence, the dependant visa application was made shortly before the Son’s 18^th birthday.  Though it may not matter, the Son has apparently never visited Hong Kong. 

6.  From the internal Immigration Department materials obtained by the Applicant in response to an information request, it is apparent that the Director refused to grant the dependant visa on two main bases: (1) though the father-son relationship between the Applicant and the Son was considered to be genuine, the intention for the Son to join the Applicant as his dependant in Hong Kong was highly in doubt, and there was no material indication to support any genuine need for the Son to depend on the Applicant physically, emotionally and financially; and (2) the Applicant’s disposable income was not considered adequate to support the arrangement of an individual accommodation for the Son and was not considered as sufficient to support the Son’s living at a standard at subsistence level in the HKSAR. 

7.  In addition, the Director did not think that there was any existing strong compassionate or humanitarian grounds warranting a departure from the prevailing dependant visa policy. 

8.  On 6 October 2021, the Applicant sought the Director’s reconsideration of the dependant visa application.  The materials provided with that reconsideration request were not considered by the Director to constitute any fresh ground pertinent to the prior refusal.  That refusal (i.e. the Reconsideration Decision)  was notified to the Applicant by letter dated 11 October 2021. 

9.  It seems that the Applicant then applied for legal aid, with a view to challenging the Director’s Reconsideration Decision. That application was refused by the Director of Legal Aid, notified by letter dated 14 January 2022, on the basis that there was no information to show that the decision of the Director was illegal, or involved any procedural unfairness, or was Wednesbury unreasonable. 

10.  Almost two and half years later, on 20 June 2024, the Applicant applied to the Chief Executive, providing further information concerning the personal circumstances of the Applicant’s family, and arguing that those circumstances should warrant approval of the dependant visa application on an exceptional basis.  On 1 August 2024, the matter was delegated to the Secretary of Security on the basis that it would be treated as a petition to the Chief Executive.  That process is apparently still pending. 

11.  The ‘petition’ to the Chief Executive was drafted and sent by solicitors acting for the Applicant.  The affirmation of the Applicant filed in support of the present proceedings is essentially a cut and paste duplication of that letter.  As a result, amongst other things, it contains references to material and information which long post-date the Refusal Decision and the Reconsideration Decision. 

12.  The affirmation unsurprisingly sets out “Grounds of Petition”, which are in essence that (1) the Son is genuinely dependent on the Applicant as his sponsor for a dependant visa, and (2) the Applicant as sponsor has the financial ability sufficient to support the Son.  As can be seen, these are essentially factual averments by reference to various materials (including the materials postdating the Refusal Decision and the Reconsideration Decision). 

13.  Neither the Form 86 nor the affirmation in support clearly set out any intended public law grounds of review – though there is a suggestion that the Director has on the facts of the case adopted an unduly restrictive interpretation of what constitutes a genuine dependency. 

C.  Application Significantly Out of Time

14.  It is trite that an application for leave to apply for judicial review must be made promptly, and in any event within three months of the date of the impugned decision – unless an extension of time is sought and obtained in circumstances warranting such an extension.

15.  In this case, the Refusal Decision was made on 13 September 2021, and the Reconsideration Decision was made on 11 October 2021.  Both decisions were made more than three years before this application was launched on 31 December 2024.  

16.  Further, I have noted that an application for legal aid was made and refused by 14 January 2022, just two weeks shy of 3 years before this application was launched on 31 December 2024. 

17.  No application for an extension of time is included in the application for leave to apply for judicial review, and no circumstances are put forward as justifying any such extension.  On the face of the materials provided, I can see no possible basis for the grant of any such extension of time within which to make this application for leave to apply for judicial review. 

18.  For this reason alone, the application falls to be dismissed. 

D.  No Merits

19.  It is also trite that an application for leave to apply for judicial review must contain a statement of the relief sought and the grounds on which it is sought.  As is frequently stated, it is not for the Court to seek to identify for any applicant what might amount to potential grounds for judicial review. 

20.  That the Form 86 and the affirmation filed in this application do not expressly identify any intended public law grounds of review is perhaps not surprising.  First, the Applicant was told by the Director of Legal Aid almost 3 years ago that the Director was of the view that there were no public law grounds justifying the use of public funds to make the application. No application for judicial review was then made by the Applicant, whether acting in person or otherwise.  Secondly, the materials advanced by the Applicant now are essentially a duplication of the materials and grounds put forward by him in support of his much more recently launched petition to the Chief Executive, seeking the grant of the dependant visa for the Son on an exceptional basis.  Those materials and grounds are said in terms to justify the relief sought by the petition, which is for the approval of the dependent visa. 

21.  The mere suggestion that the Director might have taken an unduly restrictive interpretation to what constitutes a genuine dependency on the facts of this particular case does not seem to me properly to identify any alleged public law error.  Rather, it identifies a challenge to the Director’s weighing and assessment of the materials provided to him.

22.  In any event, I see no reasonably arguable public law ground of review evident from the materials provided by the Applicant, or from the Director’s consideration of the dependant visa application and its possible reconsideration shown in the internal minutes disclosed to the Applicant upon the information request made by him.

E.  Result

23.  The application for leave to apply for judicial review is years out of time, no application for an extension of time is made, and there is no apparent basis for exercising a discretion to extend time for it to be made.  Further, no proper public law grounds of intended review have been identified by the Applicant.  Further still, on the materials there is no apparent reasonably arguable ground of review with any realistic prospect of success.

24.  For these various reasons, the Applicant’s application for leave to apply for judicial review is dismissed.

25.  I make no order as to costs.