REHMAN AFIFA v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 854/2026

[2026] HKCFI 3190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 854 OF 2026

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D E C I S I O N

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A. Introduction

1.  By her Form 86 dated 5 May 2026, the Applicant seeks leave to apply for judicial review so as to challenge the decision of the 1^st Putative Respondent Director of Immigration dated 23 April 2026 (“Impugned Decision”), by which the Director refused her request for reconsideration of the refusal of her application for extension of stay (“Reconsideration Request”).

2.  For reasons which were unclear to me, the Applicant named the Non-refoulement Claims Petition Office as the 2^nd Putative Respondent.  However, as the Applicant has confirmed that no decision of that body is challenged by her – and I do not think the Applicant has even made a claim for non-refoulement protection – I shall overlook that apparent error, and there is no need to consider that party any further.  Instead, I shall focus solely on the intended challenge to the Impugned Decision.

3.  At her request, I fixed an oral hearing of the Applicant’s application for leave to apply for judicial review.  That hearing took place on 5 June 2026.

4.  At the hearing, the Applicant appeared in person with the benefit of an Urdu Punjabi interpreter.  The Director had previously filed an Initial Response (signed by Mr Ray Mok, Government Counsel), but was otherwise not represented at the hearing.

5.  The Applicant had applied for legal aid, notified by Memorandum dated 19 May 2026.  However, I lifted the automatic stay triggered by that application, so that the hearing could go ahead.  At the hearing, I refused the Applicant’s request to adjourn the matter for a three-month period pending the decision on her legal aid application.  I did so because on the materials – and my provisional view of the merits – I saw no substantial prejudice to her in going ahead with the hearing.

6.  At the end of the hearing, I reserved my decision to be handed down on 9 June 2026.  This is my Decision.

B.  Background

7.  The necessary background has been set out to some extent by the Applicant and supplemented by Mr Mok in the Initial Response.

8.  The Applicant is a Pakistani national born on 22 November2004.

9.  On 25 March 2022, in Pakistan, the Applicant married a Mr Haq (“Husband”).  The Husband is a Hong Kong permanent resident.

10.  In September 2022, the Applicant applied to the Immigration Department (“ImmD”)  for entry for residence in Hong Kong as the Husband’s dependant, which application was approved on 30 January 2023.

11.  The Applicant’s visa was approved in accordance with the Director’s Dependant Visa Policy.  Under that policy, a sponsor who is a Hong Kong permanent resident or a resident not subject to a limit of stay, may apply for his or her spouse to join him or her for residence in Hong Kong as a dependant.  Applications for extension of stay will be considered only when the applicant continues to meet the eligibility criteria for entry as a dependant.

12.  The Applicant arrived in Hong Kong on 16 February 2023, and was permitted to remain until 16 February 2024.  In the circumstances identified below, no extension of stay has been granted.  Therefore, the Applicant has had no valid limit of stay in Hong Kong since 17 February 2024.

13.  On 30 October 2023, the Applicant gave birth to a son (“Son”), whose Hong Kong permanent resident status was established by birth.

14.  On 25 January 2024, the Applicant made an application to ImmD for extension of stay without the Husband’s sponsorship.  Her application was supported by a letter dated 22 January 2024 from her representative, Equal Justice Ltd (“EJL”), making representations including that: (1) the Applicant had been physically and verbally abused by the Husband; (2) the Applicant had applied for legal aid to commence divorce proceedings; (3) the Husband was no longer willing to sponsor a dependant visa; (4) the Applicant intended to work to support herself and the Son; and (5) as it was through no fault of the Applicant’s that she was unable to obtain a sponsor for her application for extension of stay, the extension of stay was sought on exceptional and compassionate grounds.

15.  From 6 February 2024 onwards, there was an exchange of correspondence between ImmD and EJL relating to the provision of further supporting documents and information, including as to progress of the Applicant’s legal aid application and appeal and the progress of the divorce proceedings.

16.  By Order dated 16 October 2025, the Family Court ordered (by consent)  that joint custody of the Son be granted to the Applicant and the Husband, with care and control to the Applicant and defined access to the Husband.  These matters were reported by EJL to ImmD by letter dated 26 November 2025, which letter also requested the grant to the Applicant of an extension of stay without a sponsor under exceptional circumstances.

17.  I would also point out that the Family Court Order of 16 October 2025 adjourned the ancillary relief matters to a hearing in March 2026.  But the Applicant informed me that hearing did not go ahead, because the Husband agreed to provide her with monthly financial support.

18.  By letter dated 27 January 2026, the Applicant was informed by the Director that there were no strong extenuating grounds justifying exceptional consideration in her case, and therefore the application for extension of stay was refused.  The Director’s reasoning is evident from an internal minute M.2 dated 26 January 2026, and included that:

(1)  Without sponsorship from the Husband, the Applicant was applying for extension of stay on her own merits.

(2)  The Applicant was an able-bodied adult whose place of domicile was Pakistan, and she had resided outside Hong Kong for many years before arriving in Hong Kong.

(3)  The length of residence of the Applicant in Hong Kong was considered relatively short, and there was no indication that she could not re-establish her life in her place of domicile, Pakistan.

(4)  The grant of care and control of the Son was not considered an overwhelming/compelling ground for exceptional consideration.

(5)  The Applicant’s capability to support herself and the Son was questionable.

(6)  Overall, having considered all the circumstances of the case including the Applicant’s grounds for remaining in Hong Kong, her length of residence, family and economic background, no strong grounds were found for warranting an exceptional consideration departing from the prevailing policy.

19.  By EJL’s letter dated 3 February 2026, the Applicant requested reconsideration of the extension of stay application (i.e. the Reconsideration Request), and for permission to remain in Hong Kong pending that reconsideration.  The letter also made a data access request for the documents relating to the extension of stay application.

20.  The Reconsideration Request was essentially made on the basis that: (1) the Applicant had been granted sole care and control of the Son, and if she is required to depart Hong Kong she would necessarily have to take the Son with her, but lawful relocation of the Son would require either consent from the Husband or Court order (which may take time to obtain); (2) the Son has no passport or travel document yet; (3) if the Son were to be relocated to Pakistan, he would be unable to access comparable education there.

21.  In correspondence between ImmD and EJL, ImmD asked the Applicant to submit all documents and information in support of the Reconsideration Request.  Various extensions of time were sought to submit the further documents and information, on the ground that the data access request was still pending.

22.  On 31 March 2026, EJL collected the requested documents under the data access request.  No further information or grounds in support of the Reconsideration Request were supplied prior to its determination.

23.  By letter dated 23 April 2026 – i.e. the Impugned Decision – ImmD informed the Applicant that the decision dated 27 January 2026 still stood, because no reason or justification for reversing it had been found.  The reasoning for the Impugned Decision is evident from an internal minute M.5 dated 20 April 2026, and included that:

(1)  The Applicant’s representations – as set out above – were noted.

(2)  The Director was not duty-bound to take into account the best interests of the Son when exercising his discretion relating to the Applicant’s permission of stay.

(3)  The Applicant’s immigration status and the application of the immigration reservation under section 11 of the Hong Kong Bill of Rights Ordinance 383 (“BORO”)  were noted.

(4)  The claimed procedural difficulties to relocate the Son were not considered compelling grounds warranting a reversal of the previous refusal decision.

(5)  The fact that the Son is a Hong Kong permanent resident has no bearing on the case.

(6)  Overall, after carefully revisiting the case and all available information, there appeared to be no strong grounds warranting a reversal of the original refusal decision.

24.  As already noted, the Applicant subsequently commenced these proceedings by Form 86 dated 5 May 2026.

C.  Intended Grounds of Review

25.  The Applicant has advanced seven intended grounds of review as follows:

(1)  Ground 1: Illegality – failure to take into account relevant considerations, in particular the best interests of the Son and the provisions of Article 3(1)  of the Convention on the Rights of the Child (“CRC”).

(2)  Ground 2: Illegality – failure to give adequate weight to the Son’s constitutional right of abode under Article 24 of the Basic Law (“BL 24”).

(3)  Ground 3: Breach of the right to family life under the BORO and Article 39 of the Basic Law (“BL 39”).

(4)  Ground 4: Irrationality and Wednesbury unreasonableness.

(5)  Ground 5: Disproportionality.

(6)  Ground 6: Procedural impropriety – failure to afford adequate opportunity to make representations and failure to give adequate reasons.

(7)  Ground 7: Breach of Article 3 of the CRC (“CRC 3”).

26.  At the hearing, the Applicant only added orally that she had applied to the Director for an extension of stay so that she could continue and complete her divorce proceedings, which (she suggested)  would not continue if she is not in Hong Kong.  Further, she said neither she nor her family would be able to afford to obtain a divorce in Pakistan.

27.  For reasons which I shall set out below, my conclusion is that none of the intended grounds of review is reasonably arguable with any realistic prospect of success.

D.  Ground 1: Illegality – best interests of Son

28.  The Applicant argues that the Director failed to take into account the relevant considerations that compelling the Applicant to leave Hong Kong would force the Son either (1) to depart Hong Kong with the Applicant and be stripped of his constitutional right of abode and permanent residence, or (2) to remain in Hong Kong without parental care, manifestly contrary to his welfare when the Applicant’s situation had been caused by the Husband’s abandonment of the family.  The Applicant also argues that the Director’s failure to treat the best interests of the Son is a breach of CRC 3 and BL 39.

29.  However, I accept Mr Mok’s point that the CRC is an unincorporated international convention and accordingly does not give rise to any enforceable rights or obligations under the dualist principle: see Comilang v Director of Immigration [2019] HKCFA 10 at §78.  Further, insofar as it is contended that CRC 3 has been given effect through the provisions of the Bill of Rights (“BOR”)  implementing the ICCPR under BL 39, that is subject to an exclusion by the immigration reservation under section 11 of the BORO.

30.  It is trite that the Director is under no duty to take humanitarian or compassionate grounds into account.  But, if he chooses to do so, it is also settled that the weight to be given to those grounds is a matter for the Director in the exercise of his wide discretion relating to immigration matters, subject only to the supervision of the Court under judicial review grounds.  In this case, the Director has apparently considered and weighed those matters, and unless there is some other basis for judicial interference under the other Grounds of review advanced (see other intended grounds), reference to the CRC or BL 39 does not assist the Applicant.

E.  Ground 2: Illegality – failure to weigh Son’s BL 24 rights

31.  This ground overlaps with Ground 1, in the apparent suggestion that the Impugned Decision interferes with the Son’s right of abode, because the Son may have to leave Hong Kong in order to be cared for by the Applicant.

32.  However, it is settled that the right of abode of one person does not enable that permanent resident to require the Director to permit another person to remain in Hong Kong: see Comilang at §§ 68-69.

33.  In any event, it is simply incorrect to suggest that if the Son departs Hong Kong with the Applicant, he will somehow thereby be stripped of his constitutional rights of abode and permanent residence.

F.  Ground 3: Breach of right to family life

34.  The Applicant’s intended reliance on the right to family life under Articles 14, 19 and 20 of the BOR and BL 39 is unarguable.  The right to family life is not a non-derogable right, and it is precluded by the immigration reservation under section 11 of the BORO: see Comilang at §§ 38, 53-54.

G.  Ground 4: Irrationality / Wednesbury Unreasonableness

35.  The Applicant argues that the effects of the Impugned Decision on the welfare of the Son renders the Impugned Decision irrational.

36.  Since the Applicant could not bring herself within any established immigration policy adopted by the Director, her request for the extension of stay in Hong Kong fell to be decided by the Director in exercise of his general discretion.  Indeed, this was recognised in the application for extension of stay and the Reconsideration Request.

37.  The Court has long recognized that the Director enjoys a very wide discretion in immigration control in light of Hong Kong’s special social-economical and geographical features.  Persons with no right of abode in Hong Kong or right to land in Hong Kong cannot enter or stay in Hong Kong without the permission of the Director.  For considerations which the Director is not duty bound to take into account in the decision making process, it is up to the Director to decide what to take into account and the weight to ascribe to them.  Humanitarian or compassionate considerations are examples in this category: see BI v Director of Immigration [2016] HKLRD 520 at §§47, 104-105.

38.  Hence, the hurdle for challenging the decision-maker’s decision in relation to humanitarian and compassionate considerations on Wednesbury unreasonableness or irrationality grounds is very high.

39.  I accept that, before making the original decision dated 27 January 2026, the Director exercised his discretion to take into account humanitarian and compassionate factors, including as to the personal circumstances of the Applicant and that she had been granted sole care and control of the Son.  I think it was reasonably open to the Director – that is, it was reasonable or rational in the public law sense – to find no grounds warranting exceptional consideration.  Further, in the absence of the provision of any fresh information of circumstantial change, the position remained the same on the Reconsideration Request.

H.  Ground 5: Disproportionality

40.  I accept Mr Mok’s point that, because reliance on the relevant rights asserted by the Applicant is precluded by the immigration reservation under section 11 of the BORO, no proportionality analysis is relevant either to the Impugned Decision or to this intended judicial review challenge.

I.  Ground 6: Procedural Impropriety – representations and reasons

41.  The Applicant argues that the Director failed to discharge the duty of duly considering her representations, and to conduct an individualised assessment.  However, that argument is untenable in light of the documentary evidence including the internal minutes.

42.  As to the complaint of failure to give adequate reasons, the Applicant has had the documents available from the data access request relating to the refusal of the original extension of stay application – including the internal minute explaining the reasons for the original decision. She also knows that the Impugned Decision was made on the basis that no fresh information of circumstantial change had been observed to warrant reversal of that original decision.

43.  Therefore, the Applicant has neither suffered any procedural unfairness from any absence of the chance to make representations, nor suffered the absence of a failure to give adequate reasons, or any prejudice arising from the reasons as they were provided and available to her.

J.  Ground 7: Breach of CRC 3

44.  This ground is essentially encompassed within Ground 1 and fails for the same reasons I have identified in relation to Ground 1.

K.  Extension of stay pending divorce proceedings

45.  As indicated above, the Applicant stated at the hearing that she had applied to the Director for an extension of stay for the purposes of completing the divorce proceedings.  This is a point which, at least to some extent, is apparently additional to those dealt with in the original application for extension of stay.  But it is linked to the Applicant’s suggestion that she cannot afford a divorce in Pakistan, and that divorce proceedings in Hong Kong will not continue if she is not in Hong Kong.

46.  This point may arise out of a misunderstanding. As I see it, the Family Court has plainly accepted jurisdiction to deal with all matters arising out of the Family Court proceedings.  This is not surprising where the Husband is a Hong Kong permanent resident, and where at the commencement of the proceedings both the Husband and the Applicant were physically present in Hong Kong, and where the Son was also physically present.  As it turns out, at least on an interim basis, both the child matters and the financial matters have been dealt with on a consensual basis, and made orders of Court.  The financial matters are ancillary relief, because they are ancillary to the divorce pursued by the Applicant’s petition.  There is no reason to think that the Family Court in Hong Kong will not deal with the matter of the divorce itself.  On the basis of the hitherto consensual approach to child and financial matters, it also seems to me unlikely that the divorce itself would be controversial.

47.  I accept that the Applicant may need the Husband’s consent or a Family Court order to remove the Son permanently to Pakistan (i.e. not just on a visit).  But in the apparent overall circumstances, including with a child as young as the Son, the existing car order and the Applicant’s immigration status, I doubt such an order would be difficult to obtain.

48.  I also acknowledge that the Family Court ordinarily prefers the parties to proceedings before it to attend court hearings in person, even if represented.  However, it seems that both the Applicant and the Husband had the benefit of legal aid representation as things stand.  I do not think in those circumstances the Applicant needs to be physically present in Hong Kong in order to participate in continuing Family Court proceedings (not least with the familiarity the courts now have of remote hearings).

49.  Therefore, I do not think this additional point changes the analysis in relation to the intended challenge to the Impugned Decision.

L.  Result

50.  There is, of course, room for having some sympathy with the situation of the Applicant.  Having married and come to Hong Kong as the dependant of the Husband, she apparently suffered almost immediate marital troubles, notwithstanding the birth of the Son – and she says that the Husband has abandoned her and the Son (though I note that they have agreed to find access between the Husband and the Son, and have also agreed interim financial arrangements).  The Applicant may face some difficult decisions if she departs Hong Kong.  However, with respect, any such sympathy also does not change the analysis in this case.

51.  The Applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success.  In those circumstances, the Applicant’s application for leave to apply for judicial review is dismissed.

52.  I make no order as to costs.