SO TSZ MAN, A MINOR, BY HIS NEXT FRIEND AND MOTHER, NURHAYATI v. DIRECTOR OF IMMIGRATION

HCAL 2549/2024

[2025] HKCFI 5815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2549 OF 2024

________________________

________________________

___________________

J U D G M E N T

___________________

A.  Introduction

1.  The issue in this case is whether the impugned decision is the result of an error of public law, or an example of the old maxim dura lex sed lex – the law may be harsh, but it is the law – which reflects that the legal system must operate on principle rather than emotion, even when individual outcomes may seem to many to be unfortunate.

2.  The Applicant is a 12-year-old Hong Kong Permanent Resident (“HKPR”), born and raised in Hong Kong.  Because he is a minor, he acts by his next friend who is his mother (“Mother”).

3.  The Mother is an Indonesian national who has been on recognizance in Hong Kong since lodging a non-refoulement claim in March 2014, which was unsuccessful despite many appeals.  In fact, the Mother is the subject of a Restricted Proceedings Order (“RPO”) dated 3 March 2023.  In making the RPO, the Court found that, “if unrestrained, it is likely that [the Mother] would proceed with this and other legal proceedings for the sole purpose of remaining in Hong Kong only”.

4.  The Applicant’s father, Mr So Chak Sum (“Mr So”), was a HKPR.  But he passed away in March 2018.

5.  The Applicant, as a HKPR, has never been refused entry to Hong Kong.  Instead, it was the Mother who applied to the Director of Immigration (“Director”) on 17 April 2024 for entry for residence as a “dependant” in order to take care of the Applicant (“Without Sponsorship Application”).  The application failed.

6.  By his Form 86, the Applicant seeks leave to apply for judicial review so as to challenge the decision of the Director dated 19 September 2024 (“Decision”) refusing to grant the Mother permission to reside in Hong Kong as the Applicant’s dependant, or on any other basis.

7.  I directed a rolled-up hearing, originally fixed for 20 March 2025.  But that hearing and subsequent hearing dates were vacated and re-fixed pending determination of the Applicant’s application for legal aid and then a legal aid appeal, which was allowed by Notice of Decision dated 24 June 2025.  Solicitors and counsel were assigned on 4 July 2025.  By directions dated 15 July 2025 the parties’ agreed timetable was ordered in terms, and among other things the Applicant was to apply for leave to amend by 24 July 2025 and the rolled-up hearing was re-fixed for 10 November 2025.  The hearing proceeded on the basis of the amended Form 86 (“AF86”).

8.  At the rolled-up hearing, the Applicant was represented by Mr Josh Baker of Counsel, and the Director was represented by Ms Leona Cheung, Principal Government Counsel (assisted in the written skeleton argument by Mr Andrew Tong, Government Counsel).

9.  At the end of the hearing, I reserved my decision to be handed down later.  This is my Judgment.

B.  Background

10.  The Applicant was born on 29 July 2013, in the Princess Margaret Hospital.  As stated above, he is a HKPR born to the since deceased HKPR Mr So and his Indonesian recognizance-holder Mother.  He is now 12 years old studying in a public government school.  His first language is Cantonese.

11.  Since Primary 2, the Applicant has been diagnosed with Specific Learning Difficulties, receiving regular speech therapy at the school.  Recently he has been referred by the Student Health Service for a medical appointment at the Paediatrics Unit of Kwong Wah Hospital for obesity.

12.  The Mother was formerly a foreign domestic helper.  She says that, by taking up employment in Hong Kong, she escaped from her Indonesian family who forced her to marry at a young age.  She met the late Mr So in around 2009 and developed a romantic relationship.

13.  She last came to Hong Kong on 3 September 2012 on the strength of a domestic helper visa.  She became pregnant with Mr So’s child and gave birth on 29 July 2013.  Because of her pregnancy, her employment contract was terminated prematurely in April 2013.  She was nevertheless permitted to stay as a visitor until 9 September 2013.

14.  Fearing separation from her son and the risk of harm by her Muslim family and community upon returning to Indonesia, the Mother overstayed her visa.

15.  On 18 March 2014, the Mother lodged a non-refoulement claim, on the basis that (1) her sister had threatened her with social isolation if she returned to Indonesia with the Applicant on account of his being a non-Muslim born out of wedlock, and (2) she and the Applicant faced ostracism and destitution on return / relocation to Indonesia.

16.  The non-refoulement claim and a subsequent claim request were refused.  There is now the RPO in respect of the Mother’s non-refoulement claim.  I note that claim did not directly concern the Applicant’s relocation to Indonesia, but the possibility of relocation was part – perhaps the main plank – of argument on the Mother’s claim.

17.  In March 2018, when the Applicant was 4 years old, Mr So, aged 53, died of heart disease.  As the sole parent and caregiver of the Applicant, the Mother provides emotional and daily care, including schooling and medical appointments for the Applicant.  The Applicant receives Comprehensive Social Security Assistance which covers the family’s daily expenses.

18.  Without a valid visa, the Mother is subject to removal from Hong Kong.  As Mr So passed away before he could marry the Mother, the Mother is not eligible to apply for a dependant visa as a spouse.

19.  In October 2018, a Removal Order was issued.  The Director has not gainsaid representations that the Mother has been “threatened” with removal by the Director’s office.  But, in any event, the Removal Order evidences the intention that the Mother be removed.

20.  Worrying that the Applicant would be left alone in Hong Kong, the Mother applied for residence in Hong Kong as a dependant of the Applicant, appealing to the Director on humanitarian and compassionate grounds.  By way of letter dated 5 April 2024, the Applicant’s solicitors wrote a supporting letter for the visa application, highlighting the following aspects:

(1)  Notwithstanding that the Mother does not fulfil the prevailing eligibility criteria for a dependant visa, the Director was invited to exercise his discretion to grant permission and impose conditions of stay on humanitarian grounds.

(2)  If the visa application was refused, the Removal Order would be executed and the Mother would be removed from Hong Kong to Indonesia.

(3)  In that case, the Applicant, a HKPR, would or may be ‘de facto’ removed from Hong Kong to Indonesia.

(4)  The Applicant has vulnerability owing to (a) the loss of his father at the age of 4; (b) the threat of removal and detention of his Mother; (c) the fact that he had never been to Indonesia and did not know the language, (d) the non-recognition by his Mother’s family in Indonesia, because he was born out of wedlock and is a non-Muslim Chinese; and (e) his medical condition which requires ongoing medical treatment and care.

(5)  As the Mother is the sole parent and caregiver of the Applicant, if she is not allowed to stay in Hong Kong, her removal would effectively lead to either (a) separation of the son from his mother or (b) removal of the son from Hong Kong. The former would cause tremendous emotional hardships on the young child’s wellbeing and development, while the latter would deprive him of his rights and entitlements to education and social welfare as a HKPR. Either way would interrupt his status quo which is contrary to the best interest of the child.

21.  On 29 May 2024, the Director replied that as the Mother does not fall within any identified categories of dependants, the application does not meet the eligibility criteria and therefore falls outside the existing immigration policy.

22.  On 11 June 2024, the Applicant’s solicitors, inter alia, cited authority for the Director’s exercise of his discretion in granting permission for the Mother to stay on humanitarian or compassionate grounds and urged the Director to engage in that exercise.

C.  The Decision

23.  On 19 September 2024, the Director refused the application (i.e. the Decision). The Decision letter reiterated that the Mother’s dependant visa application fell outside the existing immigration policy categories, and concluded that:

After careful consideration of all available information and the circumstances of the application, I regret to inform you that the application is refused as the Applicant is considered unable to meet the above-mentioned eligibility criteria.  Furthermore, there are no strong compassionate or humanitarian grounds or extenuating circumstances in this application which warrant exceptional consideration.

24.  Disclosure has been given of the Director’s internal memorandum (“Memorandum M.2”), dated 24 August 2024, endorsed on 29 August 2025, which evidences the consideration of and reasons for the Decision. As there was some argument in this case as to what is shown by the Memorandum M.2, it is convenient to set out the material majority of it, as follows – noting that there is embedded frequent reference to the documents annexed to the memorandum shown by the numbers in square brackets:

2.  In gist, AP [i.e. the Mother] requested for residence in Hong Kong so that she can stay in Hong Kong to take care of her 10-year-old son who acquired right of abode in Hong Kong since birth.

…

 

5.  Applicant’s Background

5.1  AP surrendered to GIS with SP [i.e. the Applicant] for having overstayed in Hong Kong on 26-09-2013.  Records check revealed that AP last arrived Hong Kong on 05-05-2012 as a foreign domestic helper with L/S until 06-10-2013. Yet, her contract was prematurely terminated on 02-04-2013.  AP applied for several extensions of stay and was last permitted to remain in Hong Kong as a visitor until 09-09-2013.  However, she did not depart and had overstayed since 10-09-2013.  On 08-11-2013, AP was convicted of the offence of BOC (O/S) and was sentenced to two weeks’ imprisonment suspended for 18 months.  A removal order was made against AP on 12-10-2018.

5.2  AP was arrested by Police on 13-08-2021 for conspiracy to defraud.  On 28-09-2022, AP was convicted of the said offence and was sentenced to 10 days’ imprisonment.  On 07-10-2022, AP was discharged from prison and was transferred to CIC.  AP was released on recognizance on the same day.

5.3.  AP lodged a non-refoulement claim in June 2014 which was refused on 07-04-2017.  She then lodged an appeal against the refusal of her non-refoulement claim on 18-04-2017 which was dismissed on 10-09-2018.  AP applied for leave to lodge JR against the refusal decision of her non-refoulement claim under reference of HCAL 1488/2022 on 14-12-2022 which was refused on 03-03-2023.  She subsequently filed a summons on 26-03-2023 which is still under processing.

6.  Grounds of Request

6.1  In support of the application, AP and SP’s legal representative (“L/R”) had submitted letters dated 05-04-2024 [6] and 11-06-2024 [14].  The grounds put forth by AP and SP are, in essence, as follows:

(a)  AP was the 41-year-old mother of SP, who was currently 11 years old;

(b)  SP was born out of the wedlock of AP and SP’s late ROA father.  He acquired Hong Kong permanent resident since birth.  He was born and raised in Hong Kong;

(c)  SP’s father passed away when SP was four years old.  SP’s sole financial support and care relied on AP since then;

(d)  SP was diagnosed with Specific Learning Difficulties and had been receiving speech therapy.  Due to his learning difficulty, SP was very much bonded to AP as his sole caregiver and required her constant care;

(e)  AP worked as a foreign domestic helper in Hong Kong between 2003 to 2013.  AP acquainted with SP’s father in 2009 and cohabited in 2012.  SP was born out of the wedlock of AP and SP’s late father on 29-07-2013;

(f)  AP’s family would not accept SP since he was not a Muslin and was born illegitimately.  She was advised to lodge a non-refoulement claim in order to stay in Hong Kong for a longer period of time.  SP applied for non-refoulement claim in 2014 which was rejected on 07-04-2017.  She lodged an appeal against the refusal of her non-refoulement claim to Torture Claims Appeal Board/Non-refoulement Claims Petition Office and applied for leave to lodge JR against the refusal decision of her non-refoulement claim which were refused on 31-07-2020 and 14-07-2021 respectively.  AP lodged a subsequent claim on 16-08-2022 which was refused on 01-11-2022;

(g)  Detention and repatriation of AP would severely affect the fundamental identity and basic right of SP.  AP applied for dependent visa to seek to remain in Hong Kong with SP;

(h)  It was acknowledged that AP and SP did not readily fall into any of the existing categories for those who could be sponsors or those who could apply for a dependant visa.  However, the categories listed in the Guidebook were not meant to be exhaustive.  The Director might exercise discretion if there were exceptional humanitarian or compassionate circumstances to justify a departure from the existing dependant policy.  The Director should not fetter his discretion by adopting an inflexible policy and neglecting the individuality of each case;

(i)  The genuineness of AP and SP’s relationship was not in doubt.  SP was not subject to any limit of stay since he was a Hong Kong permanent resident.  Although AP was convicted of the offences of “Breach of condition of stay’ and “Conspiracy to defraud”, the former offence was spent and 10 days’ imprisonment was imposed due to the conviction of the latter offence.  Neither of those convictions could be regarded as a serious crime and revealed AP as a security risk;

(j)  AP was a former foreign domestic helper which demonstrated her ability and desire to support herself financially.  If AP was unable to stay in Hong Kong to take care of SP, the financial reliance on the authorities would become far heavier than it already was.  If AP was granted HKID or permission to stay and work, AP could better, financially support SP and SP would be less financially reliant on the authority;

(k)  AP and SP’s late father were a de facto married couple.  Despite the lack of official legal recognition, AP was in essence a widow;

(l)  The ImmD should give considerable weight to the LegCo Brief’s guidance for exercising discretion on humanitarian grounds;

(m)  SP was born and raised in Hong Kong with limited familiarity of Indonesia culture. Removing AP would be highly adverse to the interest of SP who was financially and emotionally relied on AP and might lead to his de facto removal to Indonesia and placed in the education system there.  It was highly unlikely for SP to receive comparable special care in Indonesia than in Hong Kong.  SP’s relocation to Indonesia would result in the discontinuation of speech therapy and was detrimental to the education development to SP;

(n)  As a result of AP’s separation from her Indonesia family, both AP and SP were likely to be subject to destitution once arriving to Indonesia due to lack of financial support;

(o)  If AP did not make her application within the correct category or within the correct immigration policy, it was the duty of the immigration officer receiving the application to respond to it and to categorize it properly so that the appropriate principle or rule was applied; and

(p)  L/R urged the ImmD to exercise the discretion, consider and assess AP’s case on its own merits, grant permission of stay to AP under humanitarian and compassionate ground and categorize AP’s application legally under other applicable categories and assess her application under the correct category.

7.  Financial status of the SP

7.1  SP is a student and is studying in a primary school [6].  AP on behalf of SP declared on the ID997 that SP had no monthly income [1].  L/R stated in the representations that SP relied on the authorities for financial support [6].

 

8.  Consideration and Recommendation

8.1  ... AP does not fall within the above categories and her dependant visa application falls outside the existing immigration policy.

8.2  Apart from the above consideration, other relevant factors and circumstances of an individual case would be examined and considered to see if there existed strong compassionate or humanitarian reasons or other special extenuating circumstances warranting exceptional consideration.  To support an exceptional consideration for a departure from the existing policy, however, there must be sufficiently exceptional grounds given the need to maintain a restrictive and stringent immigration control in light of Hong Kong’s unique circumstances, viz. its small geographical size, huge population, its relatively high per capita income and living standards, particularly, its local living and job market conditions.

8.3  It is noted that AP had resided in Hong Kong since 2003.  However, AP, being an able-bodied adult who was brought up in Indonesia, should not encounter undue hardship in re-establishing herself in her home country where she is a national.

8.4  Regarding the health condition of SP, according to the supplementary documents submitted, SP was receiving speech therapy and SP’s latest appointment was on 06-11(2023). There is no reason that SP will discontinue to receive speech therapy, if necessary.

8.5  It is also necessary to point out that the dependant policy is not a general open-ended family reunion policy.  The applicant of dependant visa should fulfil various eligibility criteria and normal immigration requirements before he/ she may be considered given a dependant visa.

8.6  Even taking the case to its highest that strong compassionate ground may exist to justify a departure from the policy, it remains a clear fact that SP (currently a full-time student) is far from financially capable to support AP’s living at a standard well above the subsistence level.

8.7  Having regard to all information and relevant circumstances of this case including but not limited to all of AP’s representations and the interests of SP, it is considered that there existed no strong compassionate nor humanitarian reasons nor other special extenuating grounds warranting an exceptional consideration for departure from the existing dependant policy.  It is therefore recommended that AP’s dependant visa application be refused.  The draft refusal letter is prepared at float for your perusal, please.

25.  The recommendation was endorsed in the following terms:

All available information and circumstance in this case had been carefully considered.  Please refuse this application as recommended.

D.  Intended Grounds of Review

26.  By his Amended Form 86, the Applicant advances two grounds of review against the Decision:

(1)  Ground 1: the Decision was Wednesbury unreasonable in substance.  In particular, the Director:

(a)  failed to consider material facts (“Problem 1”);

(b)  formed a “flatly wrong” view as to the continuation of the Applicant’s speech therapy (“Problem 2”);

(c)  wrongly applied the Dependant Visa Policy to this “outside policy application” (“Problem 3”); and

(d)  reached a “flatly wrong” conclusion of “no strong compassionate or humanitarian grounds or extenuating circumstances ... which warrant exceptional consideration” (“Problem 4”).

(2)  Ground 2: The Director failed to consider whether, should the Mother’s visa application be rejected, the Applicant would face inhuman and degrading treatment (“IDT”) in Indonesia, namely social ostracism and destitution, which is prohibited by Article 3 of the Hong Kong Bill of Rights (“BOR 3”) and at common law.

27.  Before turning to consider each Ground in turn, it is helpful to look at applicable legal principles, and then to consider a case which Mr Baker said was analogous to this one, and on which he placed great reliance.

E.  The Law

28.  It is trite that Hong Kong maintains a strict and well-established immigration policy, under which a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission.

29.  Within this overarching policy, the Government has formulated various specific immigration policies to be given effect by the Director to allow a limited number of persons in specified categories to come to Hong Kong, such as for the purposes of working, studying, as dependants, as visitors, etc.  What is consciously and consistently absent is any category of “family union”.  Indeed, the Dependant Policy, on which the Applicant / Mother in part relied, is expressly not a policy for family reunion.

30.  The Immigration Department has published the ‘Guidebook for Entry for Residence as Dependants in Hong Kong’ (“Guidebook”).  The Guidebook has set out, amongst other things, the relevant ‘Eligibility Criteria’ at §§3 and 5.  Only a person who is the spouse, the unmarried child under the age of 18, or the parent above the age 60 of the Hong Kong sponsor is eligible to apply for a dependant visa to come to Hong Kong.  Further, even if the applicant falls within these eligible categories, he or she must also satisfy the three eligibility requirements set out before the application would be favourably considered.

31.  If the application does not meet these eligibility criteria, the Director may, in the exercise of his residual discretion under the overall immigration policy, consider whether there are exceptional humanitarian or compassionate circumstances to justify a departure from the policy to grant a dependant visa to an applicant.  Since the exercise of discretion in favour of a person who has no right of abode or right to land in Hong Kong will result in departure from overall immigration control policy and the different guidelines or policies, there must be very strong justifications before the Director would do so.

32.  However, the Director is not bound to take account of humanitarian or compassionate considerations. Hence, any judicial review grounds contending that the Director “failed” to take into account such considerations, without more, will fail.

33.  Further, where however the Director does (voluntarily) go on to consider whether humanitarian or compassionate circumstances exist, what factors to take into account and what weight to give them is a matter for the Director – subject only to review on conventional administrative law grounds.

34.  The principles concerning the Court’s approach in dealing with judicial reviews in the immigration context are well-established.  I recently summarized them in Lilik-Sunarsih v Director of Immigration [2025] HKCFI 2664 at §§52-57.  Of particular relevance to the present challenge are that:

(1)  It is appropriate and necessary for the maintenance of its suitability for Hong Kong to adopt restrictive immigration policies and practices.

(2)  The Court is not equipped with the necessary information or tasked by the law to carry out the responsibility of the Director.

(3)  Nevertheless, the Court retains a supervisory jurisdiction over the Director’s exercise of the power of immigration control.

(4)  If the Director fails to take relevant considerations that are legally required to be taken into account, or takes into account irrelevant considerations which he legally should not take into account, the decision would not be valid.

(5)  The Court can also intervene where the Director does not act fairly in the decision-making process.

(6)  The Court may also intervene where the decision is found to be Wednesbury unreasonable or irrational.  But this is a high hurdle for an applicant to overcome.

(7)  The burden remains on the applicant to establish such facts as might persuade the Director that the grant of the permission sought by the application is appropriate - and the Director is entitled to form a view, and to make his decision, on the materials provided.

(8)  Decisions are to be made by the decision-maker to whom the legislature has entrusted that function, including any relevant fact finding function.  It is the duty of the Court to leave decisions of fact to the decision-maker, unless it is obvious that the public body has acted perversely, or in breach of some other public law requirement.

(9)  The reservation in section 11 of the Hong Kong Bill of Rights Ordinance provides that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong.

35.  The last point means that there is no “right” to have a child’s best interests or the sundering of family ties considered by the Director.

36.  That said, the rights to which the section 11 reservation has no application – i.e. those absolute and non-derogable rights such as the prohibition against cruel, IDT or punishment contrary to BOR 3 – must be respected: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.

F.  Suggested Analogous Case

37.  Mr Baker emphasised that the case of SS v Director of Immigration [2018] 6 HKC 282 (CFI) was analogous to the present case, and in that case the application for judicial review was allowed.

38.  The case concerned the Director’s refusal of a dependant visa to the sister of the HKPR sponsor, but at the same time as allowing a dependant visa to the sponsor’s father.

39.  The JR applicant was the HKPR sponsor, while the visa applicant was her non-resident sister who suffered from psychiatric problems and required constant family care.  Although the sister was capable of working, she required “constant care and supervision” to stay on medication and maintain personal hygiene, failing which there was a risk of relapse.  Thus the sister was “not capable of independent living” (§§19-22).  Following their mother’s death, their elderly father struggled to provide care alone in India.  The sponsor intended to bring both family members to Hong Kong.  The Director granted the father’s dependant visa application but refused the sister’s, deeming her case “outside policy” with insufficient humanitarian or compassionate circumstances to warrant an exception.

40.  The first ground which turned on the content and meaning of the Dependant Policy was rejected by the Court. The third unfair procedure ground succeeded since the visa sponsor was not given a fair opportunity to put in material that (i) showed that she would have greater difficulty remaining in India than in Hong Kong and (ii) explained what private care would be like / whether it would be inhuman or uncompassionate.  Au J (as he then was) added that the Director’s suggestion that the sister could be placed in a private care centre or with a hired caregiver in India was also procedurally unfair.  This fundamentally ignored the medical evidence that her “entire emotional and physical wellbeing” depended significantly on family care, and that she had been regularly in the care of her family.

41.  But Mr Baker placed most reliance on the second ground, which was also accepted.  Notwithstanding the careful and restrictive approach of the Court to a Wednesbury challenge of the Director’s exercise of discretion in relation to humanitarian or compassionate considerations, the Court found the Director’s decision was Wednesbury unreasonable for failing to take into account relevant considerations.  Au J (as he then was) explained why at §§56-72.  In summary:

(1)  The Director’s decision rested on three key underlying premises (guided by medical opinion): (i) given the sister’s psychiatric conditions, she would struggle with complex and unfamiliar places (i.e. Hong Kong), (ii) medical treatments in India and Hong Kong are likely the same, and (iii) it is entirely a family choice as to whether the applicant and her family would like to return to India to look after the sister, or for the sister to come to visit Hong Kong regularly or on an extended basis.

(2)  In relation to the first and second underlying premises, it is clear from medical opinion that the sister was dependent on care by her family, and in any event it was a fact that she had been under the care of the family in India over the years.

(3)  However, given that the Director’s premises were based on that medical opinion, it was unreasonable that the Director only took into account part of the medical opinion (i.e. that the sister had limited capacity to handle complex social situations and cannot cope with demanding tasks), without considering the related part of the opinion (i.e. she was dependent upon family care).

(4)  At the same time, it is clear in all three premises that the Director had not taken into account the fact that the father was going to be physically unable to continue to take care of the sister, and would in any event on the dependent visa as granted come to stay in Hong Kong with the applicant.

(5)  In relation to the third underlying premise, in suggesting that the sister could visit Hong Kong periodically, it was implicit that she would have to return to India from time to time, even with extensions of her visitor visa.  In these circumstances, it must be a relevant factor to consider whether this was realistic, given that she would be effectively left alone in India without family care when she was not travelling to Hong Kong.

(6)  Further, the Dependent Policy’s purpose is to attract and retain sponsors in Hong Kong.  Therefore, suggesting a HKPR should leave Hong Kong effectively undermines this purpose and renders humanitarian exceptions meaningless in practice.

42.  Mr Baker therefore submitted that the case demonstrated that where the Director does consider humanitarian and compassionate circumstances, and where they include potential relocation of the HKPR to their country of nationality, then what would happen there must be relevant.  By analogy, Mr Baker submitted that in the present case, what would happen to the HKPR Applicant if he were to be relocated to Indonesia must also be a relevant factor to consider.

43.  Mr Baker also relied on the decision in SS to show that the Court will engage with the Director’s reasoning process in the exercise of the humanitarian and compassionate consideration, and where appropriate the Court will see if the admittedly high Wednesbury burden is satisfied in the particular case.

44.  In her submissions, Ms Cheung sought to distinguish the case of SS from the present case, concluding that it is not always helpful to draw reference from other cases.  In particular, she said:

(1)  In SS, the Director omitted a material factor – namely, that the sister would remain alone in India without family care.  In the present case, no factor was omitted.

(2)  In SS, the sister’s psychiatric condition was supported by medical evidence that the Director failed to consider.  In the present case, the evidence contains only a representation (a note from the speech therapist to parents to inform them of the session time and location) that the Applicant has learning difficulties.  Additionally, that representation shows that his most recent speech therapy session was held 5 months beforehand – suggesting that each session is at least 5 months apart.  Ms Cheung described this evidence as “flimsy” – to which Mr Baker objected on the ground that this contention had not been previously raised.

45.  I take these submissions into account in my analysis of the Grounds, though I do not think the case as helpful as Mr Baker suggested.

46.  But I should state that I accept in broad terms that (1) what is or is not a relevant factor to bring into the consideration will vary on the particular facts of the case, and that (2) in an appropriate case, the Court will engage with the Director’s reasoning potentially to assess its reasonableness in the public law sense (but keeping in mind throughout the high burden of establishing unreasonableness).

G.  Ground 1: Wednesbury Unreasonableness

47.  It is trite law that a decision is Wednesbury unreasonable where it is so unreasonable that no reasonable authority could ever have come to it.  As already stated, the threshold for establishing such unreasonableness in the public law sense is high.

48.  The Applicant contends that the Decision was Wednesbury unreasonable both in substance and procedurally.  Mr Baker identified four specific errors or problems in the Director’s reasoning as set out in the Memorandum M.2, the material parts of which I have set out above.  I will address each of these alleged errors in turn, as did Mr Baker and Ms Cheung, whilst recognising some degree of overlap between them.

G.1  Problem 1: Failed to Consider Consequences of Removal

49.  The Memorandum M.2 at §8.3 states:

It is noted that [the Mother] had resided in Hong Kong since 2003.  However, [the Mother], being an able-bodied adult who was brought up in Indonesia, should not encounter undue hardship in re-establishing herself in her home country where she is a national.

50.  In relation to that paragraph, Mr Baker argued that there were representations made in the 5 April 2024 letter that the removal of the Mother would constitute a de facto removal of the Applicant, as well as representations on the Applicant’s reliance on the Mother, impact on the Applicant’s education and learning difficulty.  Since none of these representations were dismissed in the Memorandum M.2 as being implausible or incredible, the Director should have considered that for the Applicant, a HKPR, the visa refusal would mean having to leave Hong Kong for a place and culture he has never experienced, facing risks of ostracism and destitution.  These are matters of “family care” that, according to Mr Baker, must have been relevant – in the same way that the prospect of “family care” for the sister was relevant in the SS case.

51.  However, looking at the Memorandum M.2 and the Director’s evidence, Mr Baker submitted that the Director had actually failed to consider the consequences of the Mother’s visa refusal on the Applicant.  He argued that there was no evidence that any consideration was given to the prospect of the Applicant relocating to Indonesia.  He submitted that this factor was merely recited in the summary of facts at §6.1(m) in the Memorandum M.2, but was given no weight.  In the hearing, Mr Baker emphasised that where a factor ought to be considered, it ought to be given weight.  A mere recital of the factor was therefore insufficient.

52.  On the other hand, Ms Cheung submitted that this argument should fail in limine, because the potential consequences of the Mother’s removal as provided to the Director were in fact fully spelled out and taken into consideration in the Memorandum M.2.  This included:

(1)  the purpose of the Without Sponsorship Application was for the Mother to take care of her minor son who is a permanent resident in Hong Kong (§2).

(2)  the Applicant’s circumstances as put forward in the Letters, including: his age (§§2, 6.1(a)); that he was born out of wedlock (§§3, 6.1 (b), 6.1(e)); that his father had passed away in 2018 (§§3, 4, 6.1(b), 6.1(e)); that he was diagnosed with specific learning difficulties and had been receiving speech therapy (§6.1(d)); that due to his learning difficulty he was very much bonded to the Mother as his sole caregiver and required her constant care (§6.1(d)); that the Applicant was born and raised in Hong Kong with limited familiarity of Indonesian culture (§6.1 (m)).

(3)  the Mother’s circumstances, including her claim that her family would not accept the Applicant since he was not a Muslim and was born illegitimately (§6.1(f)).

(4)  the claimed consequences to the Applicant of the removal of the Mother, including: the claim that it would “severely affect the fundamental identity and [claimed] basic right of the Applicant”; that it might lead to “de facto removal” of the Applicant to Indonesia and place him in the education system there; that it was highly unlikely for the Applicant to receive comparable special care in Indonesia as compared with that he received in Hong Kong (§6.1(m)); the assertion that relocation to Indonesia would result in discontinuation of speech therapy and would be detrimental to the educational development of the Applicant (§6.1(m)); the claim that, as a result of the separation from the Mother’s Indonesian family, the Mother and the Applicant were likely to be subject to destitution upon arriving in Indonesia due to lack of financial support (§6.1(n)).

(5)  the statement in the 5 April 2024 Letter at §15 that the Mother was a former FDH which demonstrated her ability and desire to support herself financially (§6.1(j)).

53.  Ms Cheung added that the Applicant’s approach of singling out certain paragraphs while ignoring the rest of the minutes is misleading and untenable.  She argued that it is unrealistic to suggest that the Director, having set out the history and grounds for request (with clear reference to the supporting letters and the submissions made in them) in the minutes, did not have the Applicant’s submissions in mind when making a decision.  Nor does an adverse decision imply that those considerations were not taken into account.

54.  I agree.  Indeed, in Kamran Javid v Permanent Secretary for Security [2023] HKCFI 1944 at §§52-55, I considered a submission similar to that made by Mr Baker:

52.  The first preliminary matter is as to whether the compassionate or humanitarian considerations put forward by the Applicant were as a matter of fact taken into consideration at all.  In my view, plainly they were.  First, Mr Parker’s attempt to bifurcate memorandum M.1 into two separate and distinct “descriptive” and “operative/analytical” parts is untenable.  His argument is that §§1-29 of M.1 merely describe the various matters there [set out], but that the analysis is limited to §30-34.  With respect, this makes little sense in context.

53.  First, it is unclear why – and unlikely that – the various considerations which had been squarely placed before the PS for S in the form of a summary of the Applicant’s representations in the file minute, with annexes of his and Ms Mak’s and the solicitors’ letters, culminating in the SB officer’s recommendation on how the case may be decided, the PS for S would not have taken those matters stated in the summary in the body of the minute into account.  Secondly, there was something of a history to the case, since 2012, some of which is rehearsed in the earlier part of M.1.  Thirdly, it is to my mind simply unrealistic to suggest that the PS for S setting out the history and updates (with the supporting documents) did not have the points in mind, when he turned to consider what decision to make.  There is neither cogent factual nor legal basis to segregate the memorandum M.1 into the two separate elements suggested.

54.  Indeed, where (see below) the decision-maker is not legally bound to, but does give regard to and references at some length, the humanitarian considerations, it would also be extremely unlikely that he did not then take those relevant considerations into account.  It also does not follow that the decision-maker has failed to take those considerations into account simply because the decision made is adverse to such considerations (though the Applicant’s argument has this flavour).

55.  Further, the specific matters to which it is said the PS for S failed to have regard – such as (1) the Applicant’s strong family ties in Hong Kong, (2) his close relationship with Ms Mak, (3) the children are young and have been living with the Applicant and Ms Mak since birth, and (4) the Applicant has not committed any crime since 2004 – were plainly adequately set out and referenced in M.1: see, in particular, paragraphs 9, 19, 21, 24, 30, 33 and 34, as set out in full above.  Even if the PS for S did not expressly mention them again, I do not think he can be taken to have overlooked them.  Rather, it seems to me that the various points, including the key submissions made by the Applicant on those points, would have been firmly in the mind of the PS for S when making the 1^st Decision.

55.  I reject Mr Baker’s suggestion that a supposed “mere recital” (itself a loaded phrase) of a fact shows that it was not actually considered unless later given specific weight, for the same reasons I gave in Kamran Javid.  The location of a consideration within a document does not necessarily indicate the weight attributed to it.  Nor do all factors to be considered need expressly to be given any particular weight in the overall balancing exercise.  The fact that the Director ultimately reached a conclusion unfavourable to the Applicant does not indicate the relevant considerations were ignored.  Rather, it reflects the Director’s assessment, within his wide discretionary powers, that these circumstances did not as a whole amount to exceptional humanitarian or compassionate grounds necessary to justify departure from established immigration policy.

56.  On the materials, it seems to me to be clear the Director had not failed to consider the potential consequences to the Applicant of the removal of the Mother.  This is to be distinguished from the position in the SS case, where the Director had clearly omitted a relevant factor.  The summary of facts in the Memorandum M.2 demonstrates that the Director was aware of and considered the various circumstances and potential consequences raised in the application.  As correctly pointed out by Ms Cheung, it specifically acknowledged the Applicant’s status as HKPR, his upbringing in Hong Kong, his limited familiarity with Indonesian culture, and the potential difficulties he might face upon a relocation.

57.  Further, and in any event, Ms Cheung submitted that even if (which is not accepted) there had been no consideration by the Director of such humanitarian or compassionate grounds, it would not constitute a failure to take into account relevant considerations in law, as they are not mandatory considerations to start with.  As Ms Cheung submitted, humanitarian and compassionate grounds are not mandatory considerations that the Director must take into account in every case.  However, I think that point of law is less relevant here, because the Director plainly did take those considerations into account.

58.  As already stated, the law is clear that the Director has a broad discretion in immigration matters, and the Court will not lightly interfere with his assessment of what factors are relevant to a particular decision, or what weight each factor should be given in the final assessment.

59.  For these reasons, I find that Problem 1 was not an error on the Director’s part.

G.2  Problem 2: Speech therapy

60.  Memorandum M.2 at §8.4 states:

Regarding the health condition of [the Applicant], according to the supplementary documents submitted, [the Applicant] was receiving speech therapy and [the Applicant’s] latest appointment, was on 06-11(2023).  There is no reason that [the Applicant] will discontinue to receive speech therapy, if necessary.

61.  Reading this paragraph, Mr Baker submitted that the Director had wrongly thought that the Applicant would remain in Hong Kong, and thus failed to consider the real effects of the Mother’s Removal Order on the Applicant (i.e. a relocation to Indonesia).  As a result, he said, the Director wrongly concluded that there was no reason that speech therapy would be discontinued.  In his evidence, the endorsing officer stated that he concurred with the immigration officer’s view that “the Applicant was also receiving necessary treatment in Hong Kong and there was no indication that this treatment would be discontinued”.  Yet in the 5 April 2024 Letter at §24, it was clearly represented that “the removal of [the Mother] may result in the de facto removal [of the Applicant] [whose] relocation to Indonesia would result in the discontinuation of … speech therapy”.  It follows, Mr Baker submitted, that the Director proceeded on a factual basis unsustainable in light of the material before him.

62.  Mr Baker acknowledged the alternative that the Director considered that speech therapy would be available in Indonesia.  However, he argued that this was nonetheless wholly speculative and without evidential basis, and thus reviewable under Wednesbury.

63.  Conversely, Ms Cheung submitted that it is common ground that the Director did take into account the prospects of the Applicant’s continuation of speech therapy.  She argued that the Applicant’s case ignores the fact that the statement in the 5 April 2024 Letter was a “one-liner bare assertion”.  It was open to the Director reasonably to consider that the Mother’s removal would not necessarily result in a “de facto removal” of the Applicant – its first appearance being in the 5 April 2024 letter, despite it being subsequently repeated about four times in that same letter.  She submitted that it was not Wednesbury unreasonable to consider that the Applicant, as a HKPR and with access to social welfare and educational support, could remain in Hong Kong.

64.  Ms Cheung therefore submitted that it was entirely within the realm of reasonable conclusions for the Director to conclude, on the materials provided before him, that “[t]here is no reason that the Applicant will discontinue to receive speech therapy, if necessary”, or that the Applicant’s relocation to Indonesia “would” result in the discontinuation of speech therapy.

65.  I accept Mr Baker’s submission that there may be legitimate concerns about the availability of comparable speech therapy services in Indonesia, particularly considering the language barrier (the Applicant perhaps likely requiring speech therapy in both Cantonese and Bahasa).  However, I agree with Ms Cheung’s submission that the Applicant will continue to have access to speech therapy if he remains in Hong Kong – which is a viable option in the present case.

66.  This goes to Ms Cheung’s broader argument that it was within the reasonable realm for the Director to consider that the Applicant may well remain in Hong Kong and consequently that speech therapy would continue to be available.  The Director cannot be expected to take into account all possible paths that might be proposed by the Mother and the Applicant.  It was thus reasonable for the Director to base his considerations on the viable option and status quo that the Applicant, as a HKPR, could remain in Hong Kong.  The suggestion that the Applicant would necessarily relocate to Indonesia presumes an entitlement of family unity – whereas there is in fact no legal entitlement to family unity in Hong Kong’s immigration policy.

67.  Further, I note that even the solicitors’ letter seems to me fairly to have recognized the correct position when it was said (my emphasis) that removing the Mother “may lead to his de facto removal to Indonesia despite being a Hong Kong permanent resident who is entitled to live in Hong Kong” and that it is “highly unlikely for [the Applicant] to receive the level of special care addressing his educational needs in Indonesia that is comparable to that provided in Hong Kong”.

68.  Where immigration policy is well-established, despite the understandable desire for mother and son to stay together, no presumption of family unity exists.  The Director was therefore not required to assess the availability of “comparable” speech therapy in Indonesia on the assumption that the Applicant would necessarily relocate there, where there exists the perfectly viable option of the Applicant remaining in Hong Kong, as a HKPR, with access to increased social services and speech therapy sessions if required.

69.  I do not think the analysis in the SS case changes the above analysis.  In that case, the sister’s psychiatric illness was both severe and medically proven.  But, regardless of whether the evidence of speech therapy in the present case is “flimsy” or not (and I think there was at least a proper basis for the points made to the Director, and in submission in these proceedings), the nature of hardship in the two cases is different.  As stated in the SS case at §§69-71, the sister’s “best interests” were relevant because her care (being a person suffering from psychiatric illness, requiring the regular family care) would be so adversely affected by not granting her a dependant visa.  Conversely, in the present case, the Applicant’s condition (requiring speech therapy sessions) would not be adversely affected by the grant or refusal of the Mother’s visa.  Whether or not the Mother is granted the visa, the Applicant would continue to have his speech therapy sessions.  This is because the refusal of the Mother’s visa does not compel the Applicant’s removal, nor would the Mother, an able-bodied Indonesian citizen capable of re-establishing herself, face IDT risk if relocating back to Indonesia.

70.  Moreover, the nature of choice in SS was fundamentally different.  There, no viable or realistic option existed.  The sister either had to be abandoned alone in India without care, despite evidence that she was not capable of independent living, or the sponsor had to relinquish her HKPR status and return to India, which goes against the rationale of the Dependant Visa Policy to keep the sponsor in Hong Kong, as iterated in SS. In the present case, the Applicant is himself a HKPR, who is already residing in Hong Kong and receiving care here.  He can be under no threat of removal, and therefore has the viable option to remain in Hong Kong.

71.  I do not think Problem 2 identifies that the Director acted in a way which was Wednesbury unreasonable.

G.3  Problem 3: “Outside policy application”

72.  Memorandum M.2 at §8.5 states:

It is also necessary to point out that the dependant policy is not a general open-ended family reunion policy.  The applicant of dependant visa should fulfil various eligibility criteria and normal immigration requirements before he/she may be considered given a dependant visa.

73.  Memorandum M.2 at §8.6 further states:

Even taking the case to its highest that strong compassionate ground may exist to justify a departure from the policy, it remains a clear fact that [the Applicant] (currently a full-time student) is far from financially capable to support [the Mother’s] living at a standard well above the subsistence level.

74.  Looking at this, Mr Baker submitted that the Director had wrongly applied dependant visa policy material and considerations to an outside policy application.  Instead of asking “notwithstanding that certain criteria of the Dependant Policy had not been met, would the application warrant exceptional consideration in light of humanitarian and compassionate circumstances?”, the Director asked the question of “is the policy criteria met?”, thereby setting the application up to failure.

75.  Relying on the principles in C v Director of Immigration (2013) 16 HKFCAR 280 at §74 and Aita Limbu v Director of Immigration (unreported, HCAL 133/1999, 10.12.1999) at §3, Mr Baker submitted that, in exceptional outside policy applications, the criteria of the policy should not be rigidly imposed to the applicant’s detriment.  This would include, for example, reference to the fact that the Applicant, a student, is not currently able to demonstrate an income level sufficient to support the Mother.  To do so would be to leave the “exceptional” nature of the consideration an empty fiction.  He again pointed to the SS case, at §73(3):

As submitted by Mr Dykes, the main purpose of the Dependant Policy (with the residual discretion based on humanitarian or compassionate grounds) is to attract and keep the sponsor in Hong Kong.  When considered in this context, in order to have a genuine consideration of the exercise of discretion under humanitarian or compassionate grounds, the option for the sponsor to leave Hong Kong should be considered as a whole together with all the other factors and matters in each case to see whether it is humanitarian or compassionate to require the sponsor and the dependant visa applicant to do so.  This I think is particularly so if and when the sponsor is already a Hong Kong permanent resident, where she has established a right to be in Hong Kong.  Otherwise, as pointed out by Mr Dykes, this reason would theoretically always be an answer to exceptional humanitarian or compassionate considerations. There are thus effectively no humanitarian or compassionate consideration exceptions.

76.  In response, Ms Cheung emphasised the importance of viewing the Decision in context.  The Without Sponsorship Application was initiated and presented by the Mother’s solicitors as a dependant visa application.  It was thus natural and reasonable that the Director consider the eligibility criteria under the Dependant Policy.

77.  Further, Ms Cheung suggested that the approach taken by the Director was a “textbook” approach.  This two-fold/bifurcated approach involves: (1) first to consider whether an applicant’s situation falls within the policy by reference to the eligibility criteria, and if not (2) to consider whether there are grounds for granting permission to stay on exceptional humanitarian and compassionate basis.  The personal circumstances of an applicant would fall to be taken into account under the Director’s residual discretionary considerations under the exceptional compassionate and humanitarian basis.

78.  Ms Cheung summarised that the Director’s approach in the present case was as follows:

(1)  It started with an observation that the Mother did not fall within any of the categories under the existing immigration policy and thus her application fell outside the existing immigration policy.  (§8.1 of M.2)

(2)  It was then expressly recognised that apart from the consideration of whether she fell within the existing immigration policy, other relevant factors and circumstances of an individual case would be examined and considered to see if there existed strong compassionate or humanitarian reasons or other special extenuating circumstances warranting exceptional consideration (§8.2).  Eventually, at §8.7, the conclusion reached was that there existed no strong compassionate nor humanitarian reasons nor other special extenuating grounds warranting an exceptional departure from the policy.

(3)  This was followed by the decision letter of 19 September 2024 which gave a two-step reason for the refusal, namely: (a) the Mother was unable to meet the eligibility criteria – not, it can be noted, that the Applicant failed to meet the financial eligibility criteria – and (b) there were no strong compassionate or humanitarian grounds to warrant exceptional consideration.

79.  Ms Cheung therefore submitted that, despite the wording at §8.6 of M2, the Without Sponsorship Application was not refused because the Applicant did not meet the financial eligibility criteria, but because the humanitarian and compassionate circumstances were considered insufficient to warrant departure from the existing Dependant Policy.  §8.6 was simply an additional point – an obiter point, as she put it – that did not affect the overall reasoning and decision.

80.  Mr Baker, in his oral submissions, disagreed that this was a textbook approach.  He contended that the Director’s approach actually involved three steps rather than two – first considering the Dependant Visa Policy criteria, secondly humanitarian grounds, and then thirdly incorrectly returning to the Dependant Visa Policy criteria.

81.  I agree with Mr Baker’s observation that the Director’s approach did not strictly follow the two-step bifurcated approach as suggested by Ms Cheung.  There appears to be a problematic third step where, after considering humanitarian and compassionate grounds, the Director unnecessarily returned to the financial criteria of the Dependant Visa Policy.  This approach risks undermining the very purpose of considering exceptional circumstances outside the normal policy framework.

82.  However, reviewing the Decision as a whole, I am not persuaded that this constitutes a Wednesbury unreasonable approach.  The Director clearly acknowledged that the application fell outside the existing immigration policy and proceeded to consider whether there were humanitarian or compassionate grounds warranting exceptional consideration – which he considered there were not.  Although the reference to the financial criteria in §8.6 was unnecessary and perhaps confusing, the overall reasoning indicates that the Director did engage in the appropriate assessment of whether exceptional circumstances existed, and it seems the financial criteria would not have changed the reasoning.

83.  I also note that part of the confusion may stem from the continued use of terminology like “sponsor” and “applicant” when – at least once it is recognized that the visa applicant is not eligible as a dependant – the Applicant is not truly functioning as a sponsor in the conventional sense under the Dependant Visa Policy.

84.  For these reasons, despite an element of infelicity of phrasing in Memorandum M.2, I do not think there was Wednesbury unreasonableness in the Decision on Problem 3 that would justify this Court’s intervention.

G.4  Problem 4: “No” Humanitarian or Compassionate Circumstances

85.  Memorandum M.2 at §8.7 states:

Having regard to all information and relevant circumstances of this case (including but not limited to all of [the Mother’s] representations and the interests of [the Applicant], it is considered that there existed no strong compassionate nor humanitarian reasons nor other special extenuating grounds warranting an exceptional consideration for departure from the existing dependant policy.  It is therefore recommended that [the Mother’s] dependant visa application be refused.  The draft refusal letter is prepared at float for your perusal, please.

86.  Mr Baker submitted that this conclusion was flatly and plainly wrong in light of the 5 April 2024 Letter.  He argued that in the letter, the facts clearly establish grounds capable of constituting “humanitarian” and “compassionate” grounds and “extenuating circumstances” within the ordinary meaning of those words.  In particular, he referred to the facts that the Mother was the Applicant’s sole caregiver following the death of Mr So, the Applicant received speech therapy in Hong Kong, he has only ever known Hong Kong and has no ties to Indonesia, and that they both face social isolation and destitution if returned to Indonesia.

87.  Alternatively, Mr Baker criticised the evidence filed for the Director which suggests that the issue was whether those facts were “sufficiently” exceptional to justify departure from the Dependant Policy, consistent with the wording at §8.2 of Memorandum M.2.  Following this wording, Mr Baker argued that the Director’s finding of insufficiency was unsustainable and unreasonable.  He submitted that one can hardly think of a more deserving set of circumstances than to permit a HKPR child of 12 years old to remain here being cared for by his Mother, his father having died suddenly when he was 4, so as to avoid orphanage / social care in Hong Kong or social ostracism / destitution in Indonesia. Mr Baker argued that if the present circumstances are not “sufficient” to warrant departure, the scope for grant is vanishingly if not impossibly thin.

88.  Mr Baker further submitted that the Director’s assessment of “sufficiency” must be sustainable on the material before him.  Otherwise, the Court would be permitting the Director to rely on a mere statement that he weighed matters to avoid review of even the most absurd conclusions, effectively ousting Wednesbury grounds of review, an approach explicitly rejected in earlier decisions of the Courts.

89.  Conversely, Ms Cheung submitted that, when all contemporaneous records are considered in context, it cannot be credibly suggested that the Director considered there were “no” strong grounds, but merely that the grounds advanced were not sufficient to warrant a departure from the policy.  She submitted that meant the Applicant was really extending a blatant invitation to the Court to revisit the Director’s judgment call made in the Director’s wide discretion on the weight to be given to the compassionate or humanitarian considerations.  But the weight to be given to compassionate or humanitarian considerations is a matter for the Director, and the role played by the Court remains only supervisory in nature: see, for example, Waseem Ghousia v Director of Immigration [2025] HKCFI 3524 at §26; and Kamran Javid at §56.  In the present case, what the Applicant is essentially arguing is that a different view should be taken that the personal circumstances relied upon by the Applicant and his Mother were of such weight as to warrant departure from the overall stringent immigration policy designed, which deliberately does not include any category of residence for “family unity” purposes.  However one may sympathise with the Applicant, Ms Cheung submitted that it cannot be said that the Decision was perverse or so far outside the range of reasonably possible decisions as would lead to a conclusion that it was irrational or Wednesbury unreasonable.

90.  Ms Cheung also reminded that, in relation to any reliance on the Applicant’s status as a HKPR in Hong Kong, it bears reiteration that contentions on a right to remain in Hong Kong so as to take care of a child who is a Hong Kong permanent resident have been carefully considered and rejected: see Comilang v Director of Immigration (2019) 22 HKCFAR 59.  Even though the Applicant is a HKPR, that does not confer rights in the immigration context on the Mother.

91.  First, having read §8.7 of the Memorandum M.2 in the context of the entire decision-making process, I am satisfied that what the Director meant was that the humanitarian and compassionate circumstances present in this case were not sufficiently compelling to warrant a departure from the established immigration policy.  This is consistent with the Director’s approach as outlined in §8.2, which acknowledges that such circumstances would be “examined and considered”.

92.  Secondly, there is certainly room for a different opinion on whether the Mother’s and Applicant’s circumstances warrant exceptional consideration as should lead to the grant of a visa, but I do not think it can be said that the Director’s conclusion falls outside the range of reasonable decisions open to him.

93.  The Court’s role is supervisory in nature and not to substitute its own judgment for that of the Director on matters of weight.  The circumstances of this case, while undoubtedly challenging for the Applicant and the Mother, do not compel a finding on Problem 4 that the Director’s decision was so perverse or irrational as to be Wednesbury unreasonable.

G.5  Conclusion on Ground 1

94.  While I accept that Ground 1 raised a reasonably arguable ground of review, Ground 1 is not made out on substantive review.

H.  Ground 2: Failure to Consider IDT

H.1  BOR 3

95.  BOR 3 prohibits IDT absolutely.  Mr Baker argued that BOR 3 questions are relevant in the present case because the Applicant had made representations claiming that if the visa application was refused, the Applicant (a HKPR) would be taken by the Mother to Indonesia, where they would “face circumstances amounting to inhuman and degrading circumstances”.

96.  Mr Baker relied on these legal principles:

(1)  BOR 3 is engaged where there exist “substantial grounds” for believing there is a sufficient risk of IDT occurring.  Actual or existing suffering is not required.  In Ilias and Ahmed v Hungary (2020) 71 EHRR (GC), ECHR 3 was violated since the question of risk was overlooked, despite the absence of ill-treatment in reality.

(2)  BOR 3 (which prohibits IDT absolutely) applies even in “foreign cases” – meaning that statutory discretion cannot be exercised to remove or deport an individual from Hong Kong if that would lead to IDT on foreign soil.

(3)  BOR 3 can require a positive action in that person’s favour, e.g. granting a person to take up employment in Hong Kong, where there is otherwise a “substantial and imminent risk” of that person facing IDT.  In GA v Director of Immigration (2014) 17 HKCFAR 60, Ma CJ said at §45:

... I agree with the Applicants’ submission that where, as a consequence of the prohibition against working, IDT (for we are not concerned with torture, cruelty or any form of punishment) can be shown to exist or where the individuals concerned can be shown to be facing a substantial and imminent risk of IDT, the discretion on the part of the DOI must be exercised in favour of the Applicants or persons like them. Put simply: where IDT or a substantial and imminent risk of IDT can be shown, the DOI must exercise his discretion to give permission to work. It is put in this imperative way because the Article 3 right is an absolute one.

97.  Applying these principles, Mr Baker submitted that when exercising a statutory discretion that is constrained by a constitutional limit – here BOR 3 – the Director ought to have considered whether that constitutional limit has been exceeded on the available materials.  It follows that in this case, the Director would have been legally required by BOR 3 to grant the visa if, as a result of his not granting it, the Applicant or the Mother faced a “substantial and imminent” risk of IDT in Hong Kong, or a “real risk” on “substantial grounds” of IDT in Indonesia.  In the premises, it was ultra vires for the Director to refuse the visa application.

98.  Mr Baker submitted that the remaining questions are therefore (1) what amounts to IDT and (2) whether it was credibly alleged in this visa application.

99.  As to what amounts to IDT, Mr Baker relied on Lord Bingham’s speech in the leading case of R (Limbuela) v SSHD [2006] 1 AC 396 (HL), §§7-8, which was applied in Ubamaka at §173:

7.  ... Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being.  As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one.  A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3.  But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life.  It is not necessary that treatment, to engage article 3, should merit the description used, in an immigration context, by Shakespeare and others in Sir Thomas More when they referred to "your mountainish inhumanity".

8.  When does the Secretary of State's duty ... arise?  The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life.  Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.

100.  Specifically, he highlighted that discrimination and social ostracism in Indonesia are recognised grounds of non-refoulement protection in Hong Kong, capable of amounting to IDT.  He pointed to Re Liana Risdianti [2022] HKCA 1058, at §22:

...the Board failed to consider, and indeed made no mention of, whether there could be a risk of harm ... from others (e.g. members of the mother’s ethnic group) or from Indonesian society at large, in terms of ill-treatment or discrimination, due to ... being a mixed-race (Sundanese-Pakistani) child born out of wedlock to a Muslim woman ... this may be a relevant factor ...

101.  As to the remaining question of whether there was, in fact, a substantial and imminent risk or a real risk on substantial grounds, of the Applicant suffering IDT on relocation to Indonesia, Mr Baker submitted that the material put to the Director suggested there was:

(1)  The 5 April 2024 Letter explained that (a) the Applicant would be disowned and expelled from the Mother’s village having been born out of wedlock, (b) his education would be drastically interrupted and his Speech therapy discontinued, and (c) both faced destitution.  According to Mr Baker, these circumstances meet the “basic needs” threshold for IDT identified in GA at §49(2), applying Limbuela.

(2)  Mr Baker submitted that none of these circumstances were doubted or questioned by the Director, who ought to be taken to have accepted them as grounding the visa application.  The evidence filed confirmed that the Director “had regard to all information and ... circumstances of the Mother’s case” and “considered all relevant facts and circumstances ... including those ... advanced by the Mother via PHA”.  Also, it confirmed that the compassionate and humanitarian grounds were considered (and there is no suggestion it was doubted).  The facts were also summarised in the Memorandum M.2.

(3)  The COI obtained by the Director in the 2017 Notice of Decision was in part consistent with the Mother’s fears of ostracism and discrimination.  At §17(c) and §18(c):

... The importance of marriage in Indonesia has negative consequences for the six million single mothers in Indonesia. ... being a divorced mother or a single mother carries a social stigma.  The ideal type of woman, as encouraged by the Indonesian state, is the who is married, and preferably a housewife ... this type is used to discriminate against and stigmatise women who fail to meet this criteria, including divorcees, single mothers and unmarried women ...  Single women are often pitied and ridiculed for being either unable to find a husband ...  Many people believe that unmarried women are incomplete, and that a single woman cannot be happy or satisfied ... community stigma remains a significant difficulty faced by unmarried women and single mothers ...  Single mothers in Indonesia have reported being rejected by friends and colleagues and having experienced cruel social judgment after falling pregnant out of wedlock

... Children of unmarried mothers are labelled as illegitimate and experience social discrimination ...

102.  I note that in the Notice of Decision regarding the Mother’s non-refoulement decision dated 7 April 2017, the Director laid out reasons for refusing her non-refoulement claim.  In summary:

(1)  There were no substantial grounds to believe that the risk of the Mother’s life being in threat upon return to Indonesia is real and foreseeable.

(2)  The Mother’s problem with her family is private and personal in nature, there is no sign or indication to show that it would be incurring strong pain or influence of any sort, nor would it involve the state.

(3)  Assertion that the police in Indonesia would not assist the Mother as her village is far away and they do not interrupt such family matters is a mere speculation without evidence in support.  There is objective COI showing the availability of state protection in Indonesia – this was extensively laid out in the Notice of Decision.

(4)  There is no indication that the Mother had encountered any problems in her previous passport applications and upon her arrival and departure from Indonesia.  Nor is there any indication that her family or the state has targeted her.

(5)  Reasonable internal relocation alternatives within Indonesia are available.  It would be difficult for family members or villagers to locate the Mother among such a large population and in such a large country to cause harm to her.

103.  These reasons have survived appeals.  Nonetheless, I keep in mind Mr Baker’s point that the Mother’s non-refoulement claim did not directly concern risk to the Applicant.  I accept that children’s claims are separate, and risk that does not meet the threshold in the case of an adult may do so in respect of a child: see Beagum Shufia v TCAB [2024] 5 HKC 593 (CA), at §17(1)-(2).

104.  I also note Mr Baker’s further submissions that:

(1)  As regards BOR 3, the Director’s power is constrained by law and is not discretionary.

(2)  It would be incorrect to think that the Director could properly consider that the Applicant had a choice, and that family separation is not itself IDT.  This is because it is the risk of IDT which engages BOR 3, and that threat or risk is imminent in this case because of the Mother facing the Removal Order.

(3)  Risk is extraneous to the exercise of power.  Therefore, while visa refusal does not directly contravene BOR 3 rights, the mere fact that the Applicant might relocate to Indonesia is sufficient linkage.

105.  In my summary of them, Ms Cheung first made the following submissions in opposition to Mr Baker’s BOR 3 submissions:

(1)  Nowhere in the lengthy letters written by solicitors did they (or Applicant or Mother) raise any issue regarding IDT risk or BOR 3 rights.  Instead, BOR 3 or IDT risk was only first raised by the Applicant much later, in the filing of the AF86 dated 10 September 2025, which happened significantly after the Decision had been made on 19 September 2024.

(2)  The burden lies on a visa applicant to establish why there are strong compassionate or humanitarian grounds or extenuating circumstances which warrant exceptional consideration by the Director (including whether any alleged hardship would constitute IDT).

(3)  Therefore, the Applicant cannot now legitimately complain that the Director failed to take into account BOR 3 when it was never even raised before the Director, bearing in mind that the Mother was legally represented at the material time.

(4)  Reference can be made to LK v Director of Immigration (unreported, HCAL 77/2014, 9 August 2016) at §§110-113, where Au J (as he then was) held that it would not be open to the applicants to challenge in judicial review that the Director failed to take IDT risk under BOR 3 (a matter which is also fact sensitive) into consideration when that was not even relied on by the applicants themselves in the dependant visa application.  This was reinforced in HW v Director of Immigration (unreported, HCAL 129/2014, 17 March 2017) at §§68-72, where it was held it was not open for the applicants to challenge the impugned decision on the basis that the Director should have properly inquired into the alleged BOR 3 concerns on his own motion.  

(5)  Hence, Ground 2 ought to be rejected on this basis alone.

106.  In response to this point, Mr Baker argued that despite the “magic words” of BOR 3 not being mentioned explicitly in the letters, the facts referred to clearly pointed to such risk.  Mr Baker also brought to my attention in the hearing that when the Applicant’s solicitors asked the Director if they could file another application that includes BOR 3, this was ignored.

107.  I accept that BOR 3 considerations do not need to be explicitly labelled as such to be properly raised before the Director (though that would, of course, be preferable).  The substance of the 5 April 2024 Letter, which detailed the potential hardships facing the Applicant in Indonesia, should have been sufficient to put the Director on notice that IDT issues might be engaged.

108.  But, Ms Cheung further submitted, again in my summary of them:

(1)  It is also untrue to suggest that the Director did not give any thought to the claimed consequences to the Applicant following the refusal of the Without Sponsorship Application.

(2)  All representations, including those listed in the AF86, were taken into account, as previously mentioned, and they included the Mother’s representation that she and the Applicant were likely to be subject to destitution once arriving Indonesia due to lack of financial support.  But the Director also noted that she was a former FDH which demonstrated her ability and desire to support herself financially, feeding in to the conclusion that the Mother should not encounter undue hardship in re-establishing herself in her home country, of which she is a national

(3)  The suggestion that the facts asserted in the solicitors’ letters were all accepted at face value is simply not true and without any basis.  Just because a particular point was recited in the memorandum and not flagged and rejected does not mean it was accepted as true.

(4)  The suggestion that the Director failed to consider the relevance or weight to be attached to the “reasonably stale” findings in respect of the Mother’s non-refoulement claim appears to be an attempt to re-litigate matters already determined in the non-refoulement claim through the back door, when all legal avenues in that process have been exhausted and the Court has already issued the RPO to avoid further abuse of process.

(5)  The proposition that BOR 3 risk would give rise to legal obligation to grant visa is plainly wrong.  Even for a substantiated non-refoulement case, there is no legal obligation to grant any visa or a stay to the claimant.

(6)  The present case differs from the Applicant’s case authorities, including Ubamaka, GA and Limbuela.

109.  On that last point, Ms Cheung submitted that there is no direct link between the refusal of the Mother’s visa and the Applicant’s removal from Hong Kong.  The Applicant is a HKPR with right of abode in Hong Kong and cannot be subject to removal or deportation.  The refusal of a dependant visa to, or the removal of, the Mother does not have the effect of the claimed “de facto removal” of the Applicant to Indonesia.  Rather, the effect on the Applicant is that he (and his Mother) will be faced with a choice whether the Applicant remains in Hong Kong under the care of social services in Hong Kong or the Applicant proceeds to Indonesia with the Mother.  While the choice is admittedly difficult (as with any hard immigration cases), Ms Cheung submitted that there is no legal basis to support a contention that being faced with the choice itself amounts to IDT.  In any event, no such contention has been made by the Applicant, and no authority has been cited to suggest that the separation of a child from his parent, in circumstances where the child is taken care of by the social welfare services (and with no reason to think there will be discontinuation of education and speech therapy), would contravene BOR 3.

110.  I accept that submission.  There is a crucial distinction between this case and the authorities relied on by Mr Baker.  Unlike in those cases, the Applicant here is not subject to removal or deportation by the Hong Kong authorities.  I acknowledge that the refusal of the Mother’s visa creates a difficult choice for the family, but it does not amount to a “de facto removal” of the Applicant.  This distinction is significant.  In the cases relied upon by Mr Baker, the state action directly led to the risk of IDT.  Here, any risk of IDT to the Applicant in Indonesia would result from a voluntary decision by the Mother to take him there, rather than leaving him in Hong Kong under the continuing care of social services.  While this is undoubtedly a painful choice for any parent and child to make, I am not persuaded that facing such a choice itself constitutes IDT.

111.  I also do not think being faced with the difficult choice creates the relevant risk as would trigger BOR 3.  In any event, I also agree that the risk of IDT, even if established, would not create a legal obligation on the Director to grant the Mother’s visa application.

H.2  At Common Law

112.  Further and/or alternatively, Mr Baker submitted that these grounds run as common law principles that circumscribe the exercise of statutory discretion in circumstances where destitution or starvation is foreseeable.  The premise is that, properly construed, statutory powers to grant visas are not so broad as to permit destitution.

113.  Mr Baker relied on R (W) v SSHD [2020] 1 WLR 4420, §§60-61, where the Divisional Court held that a “no recourse to public funds” condition imposable under statute could not be used / would have to be lifted by dint of ECHR 3 where, otherwise, the person in question risked destitution – before adding that the same result would follow at common law.  The Court offered the following analysis:

60.  The analysis begins with three propositions of law, which, as we understand it, are not in dispute in these proceedings: (a) There are some cases in which the Secretary of State is not only entitled, but legally obliged, not to impose a condition of NRPF or to lift such a condition.  (b) These include cases where the applicant is suffering inhuman and degrading treatment by reason of lack of resources.  (c) They also include cases where the applicant is not yet suffering, but will imminently suffer, such ill-treatment without recourse to public funds.

61.  All these propositions flow from the Secretary of State’s concession ... that, in the light of the analysis in Limbuela [2006] 1 AC 396, paragraph GEN 1.11A [a provision of the immigration rules] would be unlawful if it required applicants to become destitute before they could apply for the NRPF condition not to be imposed, or to be lifted.  Although the Secretary of State’s concession was made on the basis of the reasoning in Limbuela, which was itself based on the obligation imposed by article 3 of the Convention, in our judgment, the propositions set out at para 60 above would also follow at common law even in the absence of [ECHR] article 3. Section 3(1)(c)(ii) of the 1971 Act expressly empowers the Secretary of State to impose an NRPF condition.  But it imposes no duty to do so and it is silent as to when the condition should be imposed and when it should be lifted.  In the light of the case law set out at paras 34-36 above [on the law of humanity and the principle of legality], clear words in primary legislation would be required to authorise the imposition or maintenance of a condition of NRPF where the effect would be (as Lord Bingham put it in Limbuela) “by the deliberate action of the state, [to deny] shelter, food or the most basic necessities of life”.  There are no such clear words.  In the absence of them, we would hold that section 3(1)(c)(ii) of the 1971 Act does not authorise the imposition or maintenance of a condition of NRPF where the applicant is suffering inhuman and degrading treatment by reason of lack of resources or will imminently suffer such treatment without recourse to public funds.

114.  Mr Baker submitted that the same reasoning applies here. The principle of legality is a canon of statutory interpretation in Hong Kong and means that “fundamental principles of law” cannot be overridden except by express words or necessary implication: see A v Commissioner of the Independent Commission Against Corruption (2012) 15 HKCFAR 362, at §24.

115.  The statutory provision empowering the Director to grant, refuse and impose conditions on visa applications, namely section 11 of the Immigration Ordinance Cap 115 (“IO”), does not expressly authorise exercise where the result risks destitution.  Referring to the R (W) case at §§34-36, Mr Baker suggested that section 11 was enacted against the backdrop of this fundamental “anterior law of humanity” and the Court will, by the principle of legality, interpret it as intended to respect that prohibition – since no express words say otherwise.

116.  Mr Baker considered and rejected the contention that the common law protection against causing destitution is overridden by “necessary implication” in the immigration context (i.e. immigration law would not override the common law protection).  Referring to A v Commissioner at §§31-32, Mr Baker argued that this requires examining the statutory context.  While the Director had argued that section 11 is enacted for strict immigration control, and would therefore necessarily imply a power to cause individuals to be returned to destitution, Mr Baker argues “this is unlikely in the extreme”.  This is, he suggested, exactly what the constitution says cannot be done, referring to Ma CJ’s comment in Ubamaka, at §2, in response to a similar submission, that it was “deeply unattractive”.

117.  Therefore, Mr Baker submitted:

(1)  The four corners of the power to grant visas do not extend to refusing them where destitution will follow, and the Director is obliged to consider destitution in the exercise of such power where it is credibly raised – mutatis mutandis the same restraint imposed by BOR 3 and discussed above.

(2)  The Director was obliged to do so in this instance but did not, and the visa refusal decision is vulnerable to review on that ground at common law.

118.  However, while I accept that the principle of legality is an important canon of statutory interpretation in Hong Kong, I do not find that it constrains the Director’s discretion in the way Mr Baker suggests.  Section 11 of the IO grants the Director broad discretionary powers in immigration matters, and these powers must be exercised in accordance with Hong Kong’s stringent immigration policy.

119.  In any event, there is also the same factual problem of linkage.  Firstly, the Mother’s own claim to destitution in Indonesia has been rejected, and I see no reason to permit her to run the same argument again in her own respect in these proceedings.  Therefore, on the basis that she could re-establish herself in work in Indonesia, there is no reason to think that she would be destitute (or that the Applicant would be destitute if he were to move with her).  Secondly, it is not the refusal of the visa to the Mother and her removal which is the risk of destitution or social ostracism for the Applicant.  He is a HKPR, with no possibility of involuntary removal, and he is entitled to the social welfare, education and health support available to him as a HKPR.  Quite simply there is no deliberate action of the state as would deny the Applicant shelter, food or the most basic necessities of life.

H.3  Conclusion on Ground 2

120.  For these reasons, I do not find that the Director erred in failing explicitly to consider BOR 3 implications.  Nor do I find that BOR 3 and the common law principles relied upon by Mr Baker constrained the Director’s discretion such that he was obliged to grant the Mother’s visa application.

121.  Ground 2 fails.

I.  Results

122.  Notwithstanding that some might think that this application is really brought by the Mother in the name of the Applicant child for her own vicarious reasons, I have tried to focus on the Applicant’s interests.  Nevertheless, it is to be remembered that the visa was refused to the Mother, and it is that refusal decision which is the subject matter of the judicial review.  Ultimately, with that focus, the problem with that challenge is that the decision to refuse the visa, and the remaining potential for the removal of the Mother, does not actually necessarily cause the relocation of the Applicant.  This is, as I have said, very different from some of the other cases to which reference has been made.

123.  Therefore, whilst I am sympathetic to the Applicant himself, and recognize hard choices may face the Mother, it seems to me that neither ground of review succeeds.

124.  In the circumstances, the application is dismissed.

125.  I see no reason why costs should not follow the event, and in the exercise of my discretion I order the Director’s costs to be paid by the Applicant, to be taxed if not agreed.  The Applicant’s own costs will be taxed in accordance with the legal aid regulations.