SALEEM UMAIR v. DIRECTOR OF IMMIGRATION DEPARTMENT

HCAL 1022/2026

[2026] HKCFI 3793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1022 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 3 June 2026, the Applicant sought leave to apply for judicial review so as to challenge the decision (“Reconsideration Decision”) of the putative respondent Director of Immigration (“Director”) made on 3 June 2026, refusing the Applicant’s reconsideration request of the prior refusal of his request for extension of stay as a dependant of his wife (“Original Decision”).

2.  By my directions dated 11 June 2026, I gave the Director permission to file and serve an Initial Response, and I fixed an oral hearing of the application for leave to apply for judicial review at 10am on 2 July 2026.

3.  At that hearing, the Applicant appeared in person with the benefit of an Urdu interpreter.  At the hearing, I ensured that the Initial Response filed by the Director had been seen by the Applicant and that the essence of it had been interpreted to him, so that he might respond to it.

4.  In opposition to the application, the Director was represented by Ms Karen Ngai, Senior Government Counsel, with the benefit of the Initial Response filed and signed by her.

5.  At the end of the hearing, I reserved my decision to be handed down subsequently.  This is my Decision.

B.     Background

6.  The Applicant is a Pakistani national, born in January 1994 in Pakistan.

7.  The Applicant claimed to have sneaked into Hong Kong illegally from the Chinese Mainland by boat on 11 April 2019.  He surrendered to the Immigration Department (“ImmD”) on 15 April 2019.  A removal order was subsequently made against the Applicant on 29 April 2019 (“Removal Order”).

8.  The Applicant had by then lodged a non-refoulement claim (“NRC”).  The NRC was later rejected by the Director, and dismissed by the Torture Claims Appeal Board (“Board”).  The Applicant subsequently sought leave to apply for judicial review of the Board’s decision.

9.  Whilst those proceedings were pending, on 4 December 2020, the Applicant married a Hong Kong permanent resident (“Wife”), in Hong Kong.

10.  On 4 February 2021, ImmD received the Applicant’s application for entry for residence as a dependant of the Wife.  Upon consideration of all available information and the circumstances of the case, the dependant visa application was approved on 21 April 2022.  The Applicant was informed of this approval by letter dated 26 April 2022.

11.  On 12 May 2022, the Removal Order was rescinded, and the Applicant was granted permission to remain in Hong Kong as a dependant for 12 months from 17 May 2022.  On 5 May 2023, the Applicant’s extension of stay as a dependant was approved, with the limit of stay extended until 17 May 2026.

12.  However, on 4 July 2025, the Wife attended the ImmD in person, to provide a hand written declaration that she wished to withdraw the Applicant’s sponsorship, on the ground that he had cheated on her and that they had separated.

13.  On 4 May 2026, the Applicant sought a second extension of stay as dependant, and declared that there was no change in his marital/relationship status. Included in the documents provided was a “Declaration of Sponsor” form, on its face apparently signed by the Wife stating her willingness to sponsor the Applicant.

14.  On 7 May 2026, the Wife attended at the ImmD and submitted a hand written declaration confirming her statement that she no longer wished to sponsor the Applicant.  On 11 May 2026, the Wife provided the ImmD with a copy of her divorce petition dated 2 December 2025 in FCMC 11791/2025.  The petition sought a divorce from the Applicant on the ground that they had lived apart for a continuous period of at least two years, namely from on or about 1 January 2022.  On 14 May 2026, the Wife attended an interview at the ImmD and confirmed that (1) she had filed for divorce from the Applicant, (2) she would not continue to sponsor the Applicant, (3) she did not sign, prepare, or submit any documents for the Applicant’s extension of stay application, and (4) did not sign, prepare or submit the “Declaration of Sponsor” form dated 4 May 2026.

15.  On 20 May 2026, the Applicant’s extension of stay application was refused, i.e. the Original Decision.  The basis of refusal was that there had been a substantial change in circumstances, namely that the Wife had terminated her sponsorship of the Applicant, rendering him no longer eligible to remain in Hong Kong on dependant status.  It was also considered there were no strong extenuating grounds justifying exceptional consideration in the case.  The Original Decision was notified to the Applicant by letter dated 21 May 2026.

16.  On 27 May 2026, the Applicant and the Wife together attended the ImmD, together with a representative.  They provided a typed letter from the Wife stating (amongst other things) that (1) her earlier withdrawal of sponsorship had arisen from a family dispute which had since been fully resolved through mutual understanding and reconciliation, (2) she sincerely regretted for any confusion or inconvenience caused by the earlier cancellation request, which was made during an emotionally difficult time, and (3) the marital relationship remains genuine and subsisting.  The letter also asked the Director to approve the extension of the Applicant’s dependant visa.

17.  The Director informed the Applicant that the Wife’s letter was duly noted and considered, but the Applicant was reminded that he was required to leave Hong Kong on or before 4 June 2026.

18.  On 1 June 2026, the Applicant and the Wife, together with a representative, went to the ImmD to submit a request for reconsideration.  They submitted various documents including:

(1)     A typed letter dated 29 May 2026, signed by the Applicant stating that (a) he and the Wife had separated for a short period of time due to a dispute over trivial matter, (b) the Wife’s divorce petition and withdrawal of sponsorship were misguided, because she was misled by her friends, (c) they had reconciled on 14 May 2026 before the Original Decision, (d) the Applicant met all eligibility criteria under the dependant visa policy, (e) requiring his departure from Hong Kong would constitute a break to the Applicant’s ordinary residence and potential eligibility for right of abode in Hong Kong, (f) the Applicant’s departure would serve no real purpose, and would break apart the family, and (g) enclosed were (undated) photographs of the Applicant and the Wife said to be taken together since reconciliation.  The letter also sought permission to stay in Hong Kong pending the decision of the reconsideration request.

(2)     A typed declaration made by the Wife dated 1 June 2026, stating that (a) she filed the divorce petition because of a dispute arising from a trivial matter, (b) on her instructions, her solicitor had filed a notice to discontinue the divorce proceedings, (c) she and the Applicant had reconciled on or about 14 May 2026, and (d) she agreed to continue her sponsorship of the Applicant for extension of dependant visa.

(3)     A Notice of Discontinuance dated 29 May 2026, stating that the Wife as Petitioner desires to discontinue the Amended Petition filed on 18 May 2026.

19.  In passing, it can be noted that there is a clear mismatch between the suggestion of a reconciliation on 14 May 2026, and the fact that there was an Amended Petition filed in the divorce proceedings on 18 May 2026.

20.  In an interview with the Wife conducted separately by the ImmD on 1 June 2026, the Wife claimed to have reconciled with the Applicant on 14 May 2026, after her visit to the ImmD on the same day.  However, in response to being informed of the Director’s concerns about the sudden reversal of her position after previously expressing unwillingness on three prior visits to the ImmD in May 2026, the Wife was reluctant to provide details of and the process of the reconciliation, and was unable to provide an explanation as to why the reconciliation was not promptly reported to the ImmD.

21.  On 1 June 2026, the immigration officer recommended maintaining the refusal in the Original Decision, which recommendation was endorsed on 2 June 2026.  The endorsement was made given that the genuineness of the relationship and sponsorship was doubtful. The Wife had repeatedly clarified and confirmed on three occasions and made written submissions that she was unwilling to continue her sponsorship, and denied having signed the documents to support the Applicant’s application for extension of stay.  Within two weeks after being informed of the Original Decision, the Wife changed her mind.  But the Wife was unable to justify the sudden change of mind, and could not explain the reason why the reconciliation was not immediately reported.  The sudden change of mind after having apparently separated for more than two years (as was the basis advanced in the petition) left reasonable doubt about the claimed continuous sponsorship.

22.  Before that decision was conveyed to the Applicant, he and the Wife and their representative attended the ImmD on 3 June 2026.  A typed letter of the same date, signed by the Wife, was provided, which sought to clarify the discrepancies concerning the period of separation and relationship status, the declaration on 14 May 2026 regarding the “Declaration of Sponsor” form, and the reason why Wife did not inform the ImmD of the reconciliation.

23.  I note that part of the letter sought to explain why the divorce petition gave the date of separation as 1 January 2022, and explained that the incorrect date had accordingly been amended in the Amended Petition on 18 May 2026.  However, the letter did not explain why the Wife did, or would have, filed an Amended Petition on 18 May 2026 if there had been a reconciliation with the Applicant on 14 May 2026.

24.  In any event, the immigration officer considered the letter of 3 June 2026 only emphasised the inconsistencies between previous statements, creating further doubt on the genuineness of the Wife’s sponsorship.  The contents of the letter were not thought to be tenable to constitute grounds for reversing the Original Decision.

25.  By letter dated 3 June 2026, the Applicant was notified that the Original Decision was maintained, i.e. the Reconsideration Decision, because after careful consideration of all the information made available and in the circumstances of case, there was no reason or justification found for reversing the Original Decision.

26.  On 4 June 2026, the Applicant notified the Director that he had commenced these judicial review proceedings, and asked the Director to defer his departure from Hong Kong pending a decision on his application for leave to apply for judicial review.  As indicated the Form 86 is dated 3 June 2026.

C.     Intended Grounds of Review

27.  The Form 86 invites reference to the Applicant’s affirmation as containing the grounds upon which relief is sought.  The affirmation seeks to advance three intended grounds of review being:

(1)     Ground 1: The Director failed to investigate the application properly.

(2)     Ground 2: The Reconsideration Decision is wrong in principle, unreasonable and procedurally unfair.

(3)     Ground 3: The Applicant is deprived of an opportunity to make representations.

28.  Ms Ngai submitted that none of the grounds is reasonably arguable with any realistic prospect of success.

29.  I can consider each of the Grounds in turn.  But before doing so, I can briefly summarize the Applicant’s submissions made at the oral hearing.  In my summary of them, the Applicant said:

(1)     He and the Wife had a domestic issue, when the Wife got angry, and somebody told her things to create a fight between them.

(2)     However, they sat down and resolve matters between themselves.

(3)     Then the Wife went to the ImmD on 14 May 2026.

(4)     The Wife went first, and he went later, and they had not gone together on 14 May 2026.

(5)     The Wife said that the ImmD told her that although the application for an extension of stay had been made late it ought not to be a problem.

(6)     The Applicant also went to the ImmD on 11 May 2026, and was also told that the application had been made late so that the result would be given later as well.

(7)     Then the Wife also had an interview with the ImmD and again told them that she and the Applicant had a fight, but had reconciled and were living together.

(8)     The Applicant and the Wife were living together all along and did not separate, though they had a fight or misunderstanding.

(9)     The Applicant and the Wife are happy with each other, and for her monetary and reasons the Applicant wishes them to stay together.

(10)     The Applicant wishes to be given permission to stay, so that the couple can live together, that he can work and support the Wife, and they can have a good life.

30.  In passing, I note that much of this repeats what was said by the Applicant in the reconsideration process.  But the suggestion that the Applicant and the Wife did not separate differs from what the Applicant said in his letter dated 29 May 2026, where he said that they had separated (but later reconciled). It is also inconsistent with the both the original Petition filed in the divorce proceedings, which was based on separation, and the Amended Petition, which simply amended the period of separation.  I also note that the chronology of the reconciliation given by the Applicant in oral submissions differs from that previously offered to the ImmD, in that he said that matters had been resolved between himself and the Wife before she went to the ImmD on 14 May 2026, but the previous version explained to the ImmD was that they had reconciled after the Wife went to the ImmD on 14 May 2026. Indeed, I have already noted that at that visit, the Wife actually confirmed that (1) she had filed for divorce from the Applicant, (2) she would not continue to sponsor the Applicant, (3) she did not sign, prepare, or submit any documents for the Applicant’s extension of stay application, and (4) did not sign, prepare or submit the “Declaration of Sponsor” form dated 4 May 2026.

31.  Of course, I need not be too concerned with these possible inconsistencies.  The Court’s role on this application is not to decide whether the Applicant should be granted a visa extension.  That is a matter for the Director.  The Court’s role is to examine the integrity of the decision-making process, and to see whether there are any reasonably arguable public law grounds for judicial review.

D.     Ground 1

32.  This ground is based upon the suggestion that the ImmD failed to conduct further investigations or to request further information/documents, which ought to have happened if there was any concerns about the sponsorship.  The Applicant submitted that the application was refused when it was obvious that there was a substantial change in the circumstances even before the Original Decision was made.

33.  However, I agree with Ms Ngai that this intended ground is untenable.

34.  It is trite, and has frequently been referenced in previous decisions of the Court – see, for example, my recent decision in Shahid Iqbal v Director of Immigration [2025] HKCFI 434 at §33 – that the burden is on an applicant seeking permission to reside in Hong Kong to persuade an immigration officer that his circumstances fall within a policy adopted by the Director.  That burden requires the applicant to provide the Director with all relevant information that he should objectively and reasonably contemplate may be taken into account by the Director.  The Director has no duty to keep requesting documents or information, or to test through inquiry with the applicant the information and documents already provided.

35.  There is no proper basis to criticise the Original Decision made on 21 May 2026, when the claimed reconciliation on 14 May 2026 – on the same day the Wife had reconfirmed that she did not want to sponsor the Applicant – had not even been notified to the Director.  At the time of the Original Decision, the Director knew that the Wife had sought to withdraw her sponsorship in July 2025, and had confirmed that intention on numerous occasions in May 2026.

36.  Further, the Reconsideration Decision was made after considering all of the information available to the Director at the time it was made.  That information included the assertion of reconciliation, and all the representations made by or for the Applicant.

37.  In so far as the Applicant sought to raise orally any point about humanitarian considerations, it is trite that the Director is not obliged to take humanitarian or compassionate factors into account when deciding immigration permissions.

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

E.     Ground 2

39.  This ground is based upon the suggestion that the Reconsideration Decision was totally unreasonable, wrong in principle and procedurally unfair because it was based only upon the fact that the Wife had withdrawn her sponsorship and was not willing to sponsor the extension of stay, when she had actually filed a declaration informing the ImmD that they had reconciled on 14 May 2026, and she wanted to continue as sponsor.  Hence, the Applicant submitted that there was no basis for ImmD to refuse his reconsideration request.

40.  As pointed out by Ms Ngai, the dependant visa policy identifies amongst the eligibility criteria that an application for admission of a dependant may be favourably considered if there is reasonable proof of a genuine relationship between the applicant and the sponsor.  This is well-settled.  Hence, the Applicant needed to demonstrate to the Director the necessary genuine relationship and existence of dependency.

41.  The Director took into consideration all the available information and documents submitted by the Applicant and the Wife.  Those included the various declarations made by the Wife in July 2025 and May 2026, as well as the Applicant’s letter dated 29 May 2026, the Notice of Discontinuance dated 29 May 2026, the Wife’s interview on 1 June 2026, and the Wife’s declaration of 1 June 2026 and her letter of 3 June 2026.

42.  In so far as this ground suggests unreasonableness in the public law sense, it is not reasonably arguable. Indeed, it seems to me to be perfectly reasonable for the Director to have reached the view that there was significant doubt as to the genuineness of the relationship and sponsorship – including for the reasons identified above.  In any event, the Director has a broad discretion in considering what weight is to be placed on the various factors relevant to the assessment of the application, and it is not for the Court to interfere with that assessment unless it is Wednesbury unreasonable or irrational.  It is not.

43.  Nor is there any arguable basis to complain of any procedural unfairness.  The Applicant had numerous opportunities to put forward materials in support of his application for extension of stay, and they were taken into account by the Director.

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

F.     Ground 3

45.  The Applicant submitted that the Director’s decision asking him to depart from Hong Kong on or before 4 June 2026 effectively deprived him of making representations, at a time when he was not fully aware of the reasons for rejection of his application for extension of stay.

46.  The Applicant submitted that to require him to leave Hong Kong within a day after the Reconsideration Decision could achieve only the purpose of depriving him of the possibility of challenging that decision.  He pointed to the circumstances that he had stayed in Hong Kong for over four years, is a person of clear criminal record, and not a threat to society.  He also pointed to the adverse implications for his potential application for right of abode, if he is required to leave Hong Kong and that causes a gap in his ordinary residence.

47.  However, I accept Ms Ngai’s submission that the Applicant cannot remain in Hong Kong without the Director’s permission, following the expiry on 17 May 2026 of the permission to stay as a dependant.  The Director’s requirement for the Applicant to leave Hong Kong is simply the reassertion of the consequences of the continued absence of permission to remain, and a reminder that without permission to remain the Applicant was required to leave, or face the potential consequences of not doing so.  Further, the asserted potential claim to right of abode is not a consideration relevant to either the Original Decision or the Reconsideration Decision, which focused instead on whether the Applicant had satisfied the Director that he should be given permission to remain in Hong Kong as a dependant of the Wife.

48.  In so far as this ground is intended to suggest that the Applicant was deprived of a proper opportunity to make representations regarding his extension of stay application or the reconsideration request, I have already found that to be unarguable.  Insofar as this ground is intended to be directed at some unfairness in the requirement for him to leave Hong Kong, that is also unarguable.

49.  The point is also moot, where the Applicant has in fact remained in Hong Kong and has been able to pursue his intended judicial review challenge in these proceedings – including at the oral hearing fixed at his request.

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

G.     Result

51.  The Applicant has failed to raise any public law ground of review which is reasonably arguable with a realistic prospect of success.  In those circumstances, his application for leave to apply for judicial review is dismissed.

52.  I make no order as to costs.