MUHAMMAD IDREES v. DIRECTOR OF IMMIGRATION

HCAL 301/2026

[2026] HKCFI 845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 301 OF 2026

________________________

________________

__________________

D E C I S I O N

__________________

A.  Introduction

1.  The Applicant is a Pakistani national. He arrived in Hong Kong on 9 October 1998 as a visitor. However, he overstayed his visitor visa, and he has been in Hong Kong illegally since November 1998 – now for over 27 years.

2.  Only in 2005 was the Applicant picked up and recognised to be an illegal immigrant – almost 7 years after he overstayed. He was charged with and convicted on his own guilty plea of an overstaying offence on 12 October 2005, and he was given an immediate prison sentence of 4 months.

3.  Only when he was detained in 2005 did he raise for the first time a torture claim under the Unified Screening Mechanism. The claim was eventually rejected.

4.  A removal order was made against the Applicant, which was served to him on 14 June 2011. The removal order remains extant.

5.  On 22 October 2013, he lodged a claim for non-refoulement protection (“NRC”). Thereafter, he was released on recognizance, but he absconded. On 23 January 2018, he was arrested by the police. He was subsequently again released on recognizance.

6.  On 11 July 2018, the Director of Immigration (“Director”) dismissed the Applicant’s NRC on all grounds.

7.  The Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which conducted an oral hearing on 18 February 2019, where the Applicant answered some of the Board’s enquiries. By the Board’s Decision dated 25 April 2019, the Board dismissed the appeal. Though it is unnecessary to rehearse them for present purposes, it can be noted that the Board made numerous factual findings against the averments made by the Applicant. Quite simply, the Board did not believe his evidence.

8.  On 17 June 2019, the Applicant applied for leave to apply for judicial review of the Board’s Decision. However, the affirmation made in support of the application did not raise any specific ground. An oral hearing was conducted on 17 May 2023. On 23 November 2023, DHCJ KW Lung dismissed the application.

9.  On 6 December 2024, the Applicant married Ms Wong Pik Kee (“Wife”), a Hong Kong Permanent Resident (“HKPR”) of Chinese nationality. On 23 December 2024, the Applicant applied with the Wife as sponsor for a dependant visa to “join” the Wife in Hong Kong.

10.  On 30 May 2025, the Director refused the application for the dependant visa on the grounds that (1) genuine dependency (physical, emotional, and financial) was not established, and (2) the Applicant failed to meet the eligibility criterion of “no known record to the detriment” of the Applicant, as well as the normal immigration requirements of a clear criminal record and not raising any security concerns.

11.  By solicitors’ letter dated 22 August 2025, the Applicant submitted a request for reconsideration (“RR”).

12.  On 31 October 2025, the Director maintained the previous refusal decision (“Impugned Decision”). The Director’s letter identified that the information provided and the representation made by the Applicant did not serve to form any fresh ground for reconsideration of the prior refusal, which would still stand.

13.  Now, by Form 86 dated 30 January 2026, the Applicant seeks leave to apply for judicial review so as to challenge the Impugned Decision.

14.  The Applicant requested an oral hearing, if leave were not to be granted on the papers. I fixed that oral hearing for 11 February 2026. At the hearing, the Applicant – who is currently on recognizance, while removal arrangements are pending – appeared in person (with the benefit of an interpreter).

15.  I had also previously given leave to the Director to search the court file, and to attend the hearing if he wished. Though an Initial Response has been filed on behalf of the Director – signed by Mr Rex Cheung, Senior Government Counsel and Mr Thomas Tong, Government Counsel of the Department of Justice – the Director has chosen not to attend the hearing (with my consent).

16.  At the hearing, I ensured that the Initial Response had been interpreted to the Applicant, in case he wished to address it.

17.  Near the beginning of the hearing, the Applicant informed me that he had applied for legal aid on 10 February 2026 (i.e. the day before the hearing), which might take 2 to 3 months to be decided. Hence he requested an adjournment, additionally on the basis that he had been given only a few days’ notice of the hearing.

18.  However, first, the hearing was fixed at his own request and I do not think it appropriate for him to complain about the Court’s attempt to deal with his application expeditiously. Secondly, on the basis of the materials, I saw no particular prejudice to the Applicant in the hearing proceeding without affording any delay pending his legal aid application. Therefore, I refused the requested adjournment, and in so far as it was necessary I lifted the automatic legal aid stay that might have been triggered. The Applicant then made submissions on his application.

19.  This is my Decision.

B.  The Intended Grounds of Review

20.  In his Form 86, the Applicant identifies the following intended grounds of review:

(1)  Ground 1: Failure to give adequate consideration to the dependency issue.

(2)  Ground 2: Irrational weight given to the criminal conviction.

(3)  Ground 3: In adequate reasons and failure to properly consider representations.

(4)  Ground 4: Failure to consider whether circumstances warranted exceptional consideration (alternative ground).

(5)  Ground 5: Procedural unfairness.

21.  I can address each ground in turn.

22.  None of them has any merit.

C.  The Dependant Policy

23.  The Government’s Dependant Policy is well-known, and described in the Guidebook for Entry for Residence as Dependants in Hong Kong. An application for admission of a dependant may be favourably considered if (a) there is reasonable proof of a genuine relationship between the applicant and the sponsor, (b) there is no known record to the detriment of the applicant, (c) the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in the HKSAR.

24.  However, merely because a dependant visa application meets all eligibility criteria does not mean that the application must be approved. The Dependant Policy is not a family reunion policy, and the focus is on a genuine relationship of dependency – where a dependant is somebody who must rely on another for maintenance, care and support, emotional and material, and is unable otherwise to manage. But mutual emotional dependency that is to be found in genuine family affection is not of itself and viewed alone a form of dependency which falls within the Director’s policy.

25.  An applicant for a dependant visa should also meet normal immigration requirements (such as holding a valid travel document with adequate return ability to his/her country of residence or citizenship; be clear of criminal record and raise no security or criminal concerns to the HKSAR; etc).

D.  The Impugned Decision

26.  It is also helpful to make reference to the Minute M.2 recording the internal consideration of the RR.

27.  I do so because – obviously, on its face – the content of the Minute demonstrates beyond peradventure the complete lack of merit in the intended challenge to the Impugned Decision. Yet the Applicant has exhibited it to his affirmation. The Minute states (all bold, underlining and italics in original):

Case background

On 09.10.1998, AP arrived in HK as a visitor with L/S til 09.11.1998. He failed to depart HK as required and was arrested by police for having overstayed on 04.10.2005. Upon arrest, he was found to have overstayed for 6 years and 10.5 months. On 12.10.2005, he was convicted of overstaying offence and was sentenced to 4 months’ imprisonment. While he was serving sentence, he raised CAT claim and later changed to USM claim. During the period of his stay in HK, he married SP on 06.12.2024. As for SP, she married her first husband, HKPR(CHN), in 1990 and had a child born under the wedlock in 1992. On 11.09.2024, she divorced her first husband and married AP on 06.12.2024, i.e. after around 3 months. As reported, it was the second marriage of SP and the first marriage of AP. Currently, no person is under active sponsorship of SP.

Submission of dependant visa application

2. Right after the marriage, AP made his first application for dependant visa on 23.12.2024 (“initial application”) to join SP but was refused on dependency ground (physical, emotional and financial). AP was also considered fail to meet the eligibility criterion (no known record to the detriment of AP) as well as normal immigration requirement (clear criminal record and raised no security concern) (“refusal decision”). SP was notified of the result by letter of 30.05.2025.

Submissions for Request for Reconsideration (RR)

3. By a letter dated 22.08.2025, via the authorized representative, Jal N. Karbhari & Co. (“the rep”), SP lodged a RR (“instant RR”) against the refusal decision. The rep was asked to produce fresh information for the instant RR, yet, no supplementary documents were provided. The only new document is the rep’s submission which is summarized as follows:

i. The application could have advanced if it had no known record to the detriment of AP

ii. During the court proceedings on AP’s overstaying offence, AP was told if he was a genuine refugee seeker in HK, he should confess and plead guilty which caused his conviction.

iii. The criminal record would not have occurred if the torture claim application was made on time.

iv. It has been 20 years since conviction.

v. The seriousness of the offence is on the lowest scale, therefore does not pose to be serious threat to the integrity and security of HK

Consideration

4. In the initial application, the case officer did not challenge the marital relationship between SP and AP or SP’s financial capability. However, genuine dependency (physical, emotional and financial) between SP and AP was not satisfied. In addition, AP has criminal record amount to the known record to the detriment of AP.

Physical dependency

5. As declared by SP, she first met AP in 5/2022 and started dating him in 5/2023. On 06.12.2024, they got married in HK. Among 32 photos submitted, excluding wedding photos, there were only around 20 photos depicting their daily lives. Bearing in mind that AP was stranded in HK all the times, one may reasonably expected more photos to be available if strong physical bonding existed especially during the moment their love and affection sparkled, proposal of marriage, honeymoon, etc. In contrast, as revealed in SP’s movement record, she had numerous Mainland travels which unavoidably reduced the time of togetherness. As also observed in the available communication record generated in 2-3/2025 (after marriage), some updates like AP was going to sleep was spotted. It was also not rare to find ‘Good night’ messages between them. It raised questions if they were sleeping or living together after marriage which further fainted their physical dependency.

Emotional dependency

6. The only communication submitted covered the period from 24.02.2025 to around 21.03.2025. They were mostly short messages, greetings, audio messages (lasting for a few seconds) as well as some deleted audio calls. During such a short period, there were still some breaks observed. Their communication since acquaintance and dating were nowhere to be seen. No quality messages was found between them. Emotional dependency is hence considered not materially established.

Financial dependency

7. As explained by the rep, no remittance slips were available as AP had been living in HK. Nevertheless, no elaboration on how SP supported AP’s live in HK was given. No supporting documents of payment of daily necessities shared by them or presents given to AP were provided. As such, there is no clue on financial dependency of AP to SP. It is understandable that AP was unable to work in HK and could generate no income. However, it does not mean that he was financially dependent on SP as he was also living on the support of ISS. Without concrete proof, financial reliance on SP could not be automatically inferred.

No-known-record requirement

8. AP, having overstayed for almost 7 years, was sentenced to 4 months’ imprisonment in 2005. The period of imprisonment and immediate custodial sentence passed, per se, demonstrated seriousness of offence. In an attempt to discharge AP from the criminality, the rep submitted that he was misled to plead guilty, whereas AP should withhold taking plea as he was a genuine claimant. From the records, AP was legally represented upon pleading guilty. He should have informed his lawyer about his intended CAT claim (if any) during the instruction taking session prior to the court. The allegation of misleading by an unknown person, arising 20 years after the guilty plea, and when the criminal record did matter to him during the assessment of dependant application, is rather doubtful. With respect, even he timely raised his claim, the charge would be withheld until the finalization of claim. The “different result”, as submitted by the rep, is just a wild speculation. In any event, no matter whether claim was genuine, whether he should take the plea at court, it is not in dispute that AP opted to stay underground and overstayed for almost 7 years from 1998 to 2005. The seriousness of case nature is sufficiently illustrated.

9. The case, Munatsi Kingsley v DoI (CACV 405/2020), is of certain reference value with similar facts of case. In that case, the applicant had overstayed for 5 years and 6 months and was sentenced to 6 months imprisonment. It was ruled that it was reasonably open to the Director to take into account of the overstaying and imprisonment with such periods and to consider that the applicant failed to meet the no-known-record requirement and the normal immigration requirement which included, among others, that the applicant was of clear criminal record and raised no security or criminal concerns to HKSAR. Back to the case of AP, with reference to the court case, it is not unreasonable for the case officer to consider AP failing to meet the eligibility criterion and normal immigration requirement.

10. The rep further requested to consider long passage of lime as the conviction happened 20 years ago. It is notable that time lapse is only one factor for our consideration and it has no overriding effect on other detrimental factors like seriousness of offence that is duly discussed above.

Recommendation

11. With regard to all information and circumstances of the case, there is no fresh ground pertinent to the refusal decision, nor justification warranting a reversal of the refusal decision previously made. There is no other indication that there exists strong special compassionate or humanitarian reasons or other special extenuating grounds warranting exceptional consideration of the case. It is recommended maintaining the previous refusal decision with a letter reply prepared at float for your endorsement, please.

28.  As I have already stated above, by the original refusal letter dated 30 May 2025, the Applicant and his solicitors knew that the Director refused the application for the dependant visa on the grounds that (1) genuine dependency (physical, emotional, and financial) was not established, and (2) the Applicant failed to meet the eligibility criterion of “no known record to the detriment” of the Applicant, as well as the normal immigration requirements of a clear criminal record. Yet it can be noted from §3 of the Minute that the Applicant’s solicitors were asked to produce fresh information for the RR, but no supplementary documents were actually provided except the solicitors’ submission letter, which focused only on the point of clear criminal record.

29.  Against the detailed consideration shown in the Minute, I can now turn to the individual intended grounds of review, bearing in mind that complaints about the adequacy of the consideration given, or the weight given, to factors in the decision-making process are usually not fertile ground for any judicial review challenge.

E.  Ground 1 – Dependency Issue

30.  Under the heading “failure to give adequate consideration”, the Applicant suggests that the Director’s assessment of dependency is unduly rigid and fails to account for the practical realities of his circumstances. Specifically:

(1)  As to physical dependency: The Director criticised the limited number of photographs and the Wife’s Mainland travels, but he failed to consider that physical dependency may be demonstrated in more modest but nonetheless genuine ways.

(2)  As to emotional dependency: The Director noted that communication records only covered the period from 24 February 2025 to 21 March 2025, and consisted of “short messages, greetings, audio messages”. But (a) the Director failed to consider that not all couples maintain extensive written communication, (b) the presence of “good night” messages and daily updates, interpreted negatively by the Director, could equally suggest routine cohabitation and mutual care, and (c) the absence of earlier communication records does not negative the existence of a genuine relationship, where they met in person in Hong Kong and develop the relationship primarily through face-to-face interaction rather than remote communication.

(3)  As to financial dependency: The Director acknowledged the Applicant’s inability to work or generate income in Hong Kong, and accepted the Wife has substantial monthly salary and savings. But the Director concluded that financial dependency could not be automatically inferred without concrete proof such as remittance slips or receipts for daily necessities, which is an unrealistic approach failing to recognise that married couples living together in Hong Kong do not ordinarily maintain formal records of every shared expense. The Director’s approach demonstrates a checklist mentality rather than a holistic assessment of the marital relationship.

31.  In his oral submission, the Applicant complained that the Director just made the Impugned Decision, and did not ask him to submit anything (further).

32.  However, the criticism is misplaced in the public law arena. The Director was entitled to assess the merits of the application on the basis of the materials provided by the Applicant – and in circumstances where the Applicant’s solicitors were asked to produce fresh information for the RR, but gave no supplementary documents except their written submission letter. The burden was on the Applicant to prove to the satisfaction of the Director that he was dependent on the Wife. The Applicant has not satisfied that burden, and the complaint under this Ground 1 is in essence the Applicant’s preferred assessment of his own case and his disagreement with the merits of the Director’s decision.

33.  In any event:

(1)  From the Minute, it is clear that the Director carefully assessed the material submitted in relation to the claimed physical dependency, and it is unarguable to suggest that the conclusions drawn were outside a reasonable range of conclusions.

(2)  The Applicant provided some (albeit limited) communications between himself and the Wife, and must thereby have recognised the need to satisfy the Director of, for example, emotional dependency. The assessment of that material was a matter for the Director, and it was well within reasonable bounds for him to consider the “quality” of the messages as well as the relatively small number of them, and to reach the conclusion that emotional dependency was not established.

(3)  The same is true of the claim to financial dependency, where ultimately no or few documents were provided to support payment of daily necessities or other aspects of the financial situation between the Applicant and the Wife.

34.  There is no legal error, Wednesbury unreasonableness or procedural impropriety. Ground 1 is not reasonably arguable with any realistic prospect of success.

F.  Ground 2 – Criminal Conviction

35.  Under this ground, the Applicant complains that the Director gave “irrational weight” to his criminal conviction.

36.  The Applicant accepts, as he must, that the “no known record” requirement is an eligibility criterion – rather than merely a relevant factor. But he suggests that it was open to the Director to take the criminal record into account, and weigh it against the passage of 20 years since the conviction. The Applicant suggests that the Director may have treated the passage of time as having minimal or negligible weight, rather than as a significant factor warranting careful consideration. The Applicant does not argue that the Director was bound to reach a different conclusion, but merely asserts that the reasoning in the Impugned Decision does not demonstrate that “proper weight” was given.

37.  In his oral submission, the Applicant emphasises that he had a clear criminal record for the last 28 years. On the other hand, the Applicant accepts in his application papers that it remained ultimately a matter for the Director’s assessment.

38.  Indeed that is correct, and there is no merit in this intended ground of review. The starting point is that the “no known record” requirement is an eligibility criterion which the Applicant cannot satisfy. That the conviction occurred some years ago does not mean that there was no conviction. Nor does the fact that he has not engaged in criminal activities since the conviction. It was obviously reasonably open to the Director to take into account the overstaying and imprisonment, and to consider that the Applicant failed to meet the “no known record” requirement and the normal immigration requirements which included, amongst other things, that the Applicant should be of clear criminal record and raising no security or criminal concerns to HKSAR.

39.  Further, the weight to be given to these matters is obviously a matter for the Director. On the materials, there is no basis in public law to interfere with the Director’s assessment.

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

G.  Ground 3 – Adequacy of Reasons

41.  Under this ground, the Applicant suggests that the Director’s response is inadequate to the submissions made on his behalf by his solicitors in the RR.

42.  But, in reality, this challenge is not a ‘reasons’ challenge. Rather, it is another complaint about the weight given, or conclusions reached, in the Director’s assessment. This is evident not least from the Applicant’s complaint that the Director has not meaningfully engaged with the submissions regarding his rehabilitation, the support of the Wife or the compassionate aspects of his case. In any event, the Minute shows otherwise. The representations have been specifically recognized and addressed – including those relating to the circumstances of the conviction, where he was legally represented and pleaded guilty.

43.  I also reject the suggestion that the Director has approached the RR with a closed mind, merely reiterating the original concerns without proper engagement with the fresh submissions. That is also evidently incorrect on the face of the Minute.

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

H.  Ground 4 – Exceptional Circumstances

45.  The Applicant accepts, as he must, that the Director has no duty to consider humanitarian or compassionate grounds in immigration decisions. But he points to the fact that the Director did, in his case, consider whether there existed strong compassionate or humanitarian reasons or other special extenuating grounds warranting an exceptional consideration for departure from the existing dependant policy.

46.  The Applicant criticises the Director’s conclusion that no such grounds existed, because (he says) the Impugned Decision is silent on what specific consideration, if any, was given to: (1) the twenty-year passage of time since conviction; (2) the sustained compliance with bail conditions over many years; and (3) the genuine marriage to a HKPR.

47.  Again, this is merely a complaint about the weight given by the Director to the various factors in reaching his conclusion that there were no special extenuating grounds warranting exceptional departure from the dependant visa policy. The Applicant’s further complaint that the Director’s reasoning does not adequately explain why the cumulative factors did not constitute those special grounds is essentially only a statement that the Applicant disagrees with the conclusion and thinks a different one should have been reached.

48.  Ground 4 is not reasonably arguable with any realistic prospect of success.

I.  Ground 5 – Procedural Fairness

49.  Under this intended ground, the Applicant complains that prior to the Impugned Decision he was not given an opportunity to respond to the specific concerns raised by the Director regarding dependency. The Applicant refers in particular to (1) the Director’s interpretation of the “good night” messages as evidence that the Wife and he were not living together, when there are hints and explanations, and (2) the Director’s reliance on the Wife’s Mainland travel records as undermining physical dependency was not flagged as a concern, and the Applicant could have explained the frequency and purpose of such travel.

50.  This complaint is based upon a fundamental misconception. As has been stated in numerous previous decisions, – the burden is on the person seeking permission to reside in Hong Kong to show such facts as might persuade an immigration officer that his or her circumstances are such as to fall within a policy adopted by the Director. It is not for the Director to have to show that an applicant or an application falls outside the policy. Further, though the Director may from time to time seek further information than is originally provided in support of an application, the burden remains on the applicant to establish the relevant facts, and the Director is entitled to form a view, and to make his decision, on the materials provided.

51.  Here, the Applicant was legally represented, and he and his solicitors were given the opportunity to submit documents and information, to make representations, and to respond to requests for further information in support of the RR.

52.  None of that triggered any duty upon the Director to identify to the Applicant the reasoning which might lead to the rejection of the dependant visa application, so that the Applicant could be given the opportunity to comment.

53.  Ground 5 is not reasonably arguable with any realistic prospect of success.

J.  Delay

54.  Though I do not need to rely on it separately, there is the additional problem for the Applicant arising from his delay. The original decision to refuse the dependant visa application was made on 30 May 2025. Any intended challenge to that decision should have been made promptly, and in any event within three months (i.e. before 30 August 2025). It is trite that requesting reconsideration of the original decision does not of itself get around or avoid the time requirement. In this case, the information provided and representations made did not serve to form any fresh ground pertinent to the original refusal.

55.  Hence, the Director’s reconsideration was by nature a mere confirmation of the original refusal decision. The Form 86 in these proceedings was filed only on 30 January 2026, meaning it was filed after a period of substantial delay where there is no good reason to extend time.

K.  Result

56.  The Applicant has managed to stay in Hong Kong illegally for over 27 years. Now, the Applicant is dissatisfied with the decision made on his application to seek to stay in Hong Kong as a dependant. But, with respect, not only is the application probably out of time, there is simply no reasonably arguable public law ground upon which the decision to refuse the dependant visa can be impugned.

57.  In those circumstances, the Applicant’s application for leave to apply for judicial review is dismissed. I make no order as to costs.