JUMIATI v. THE HOSPITAL AUTHORITY

HCAL 1559/2024

[2025] HKCFI 481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1559 OF 2024

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DECISION

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A. Introduction

1.  The Applicant is an Indonesian national, who was formerly a foreign domestic helper in Hong Kong. She resigned from her employment on 28 April 2023, but failed to leave Hong Kong at the end of her permission to remain, and became an over-stayer. She is currently a non-refoulement claimant.

2.  On 5 June 2023, the Applicant gave birth to a child (her second) at the Queen Elizabeth Hospital (“Hospital”), a public hospital in Hong Kong managed by the Hospital Authority (“HA”). On 21 June 2023, the Applicant applied for a Medical Fee Waiver (“MFW”), that is an application to waive the medical fees (“Fees”) charged by the Hospital.

3.  The Fees stem from the Non-eligible Person (“NEP”) obstetric package during the Applicant’s admission from 5 to 9 June 2023. The MFW application was rejected on 25 September 2023 (“1^st Rejection”).

4.  On 20 October and 29 December 2023, the Applicant raised an appeal (“Appeal”) against the 1^st Rejection. On 11 June 2024, the Applicant’s Appeal was rejected (“Decision”). Both the 1^st Rejection and the Decision were based on the Applicant’s failure to demonstrate any “exceptional circumstances” justifying a waiver, under the HA’s general policy regarding this type of application.

5.  By Form 86 dated 10 September 2024, the Applicant seeks leave to apply for judicial review so as to challenge the Decision. The HA is named as the putative respondent. Though the Applicant acts in person, the Form 86 evidences the assistance provided to her both for the Appeal and in these judicial review proceedings by Equal Justice Ltd (“Equal Justice”), an NGO.

6.  By my directions dated 11 September 2024, I gave leave to the HA to file and serve an Initial Response to the application for leave to apply for judicial review, and for the Applicant to file and serve a Reply, in accordance with a timetable which I set, but which was subsequently extended. I also indicated that depending on the contents of those documents (if any), I would decide whether to deal with the application for leave to apply for judicial review on paper and, if so, to proceed to do so without further notice to the parties.

7.  An Initial Response was filed by the HA, drafted by Mr Abraham Chan SC and Mr John Cheung of Counsel. A Reply was filed by the Applicant, again apparently with some assistance.

8.  Having considered the materials, I am satisfied that it is appropriate to deal with this application for leave to apply for judicial review on paper.

B.  Further Background

9.  The Applicant came to Hong Kong in December 2013 to work as a foreign domestic helper, and she continued in similar employment until 28 April 2023.

10.  In 2015, the Applicant became acquainted with her boyfriend, a Form 8 holder and a non-refoulement claimant. In 2018, the Applicant gave birth to her first child with her boyfriend. At the time, she was an Eligible Person (“EP”), and the medical fees were affordable.

11.  In October 2022 the Applicant became aware of her second pregnancy.

12.  On 28 April 2023, the Applicant resigned from her employment upon the advice of her employment agency, because her then employer was under criminal investigation. The Applicant says she sought other employment, but was unsuccessful. At the time of her resignation, she was around 33 weeks pregnant.

13.  The Applicant’s permission to remain in Hong Kong expired 14 days after her resignation. But the Applicant did not leave, and has since then overstayed. The Applicant also became an NEP.

14.  On 16 May 2023, the Applicant surrendered to the Immigration Department (“ImmD”). She was issued a recognizance paper and requested to return on 19 May 2023 for an interview. On that date, the Applicant was detained regarding investigations related to work arrangements with her previous employers. She was not required to make a statement, but was put on bail and asked to return for a statement six weeks after her due date, i.e. on 31 July 2023.

15.  The original expected due date of confinement was 19 June 2023, but the Applicant was admitted to the Hospital and gave birth to her second child on 5 June 2023. The period of hospitalisation was from 5 to 9 June 2023, and the Fees payable were $100,200. The Applicant was required to pay those Fees as an NEP.

16.  On 21 June 2023, the Applicant made an MFW application in relation to the Fees. The Applicant was provided with an information leaflet relating to the waiving of medical charges (“Leaflet”), and signed an acknowledgement on the same day confirming its receipt.

17.  In the Applicant’s application form, the Applicant identified the receipt of financial contributions from other relatives/friends not living with her in the average monthly income of $10,000. The section for “Exceptional circumstances” was left blank – despite the fact that the form specifies that an MFW applicant who is an NEP must fill in the section and submit relevant documentary proof. On the other hand, the Applicant did file various self-declarations speaking to her position and the basis of her MFW application.

18.  The HA processed the Applicant’s MFW application in accordance with its established procedures (see further below). On 25 September 2023, the Applicant was notified of the 1^st Rejection.

19.  From the materials provided with the Initial Response, it can be seen that the MFW application had been considered jointly by the Medical Social Services Unit (“MSSU”) of the Hospital and the HA Head Office (“HAHO”). The MSSU recommended no waiver of the fees because: (1) the Applicant and the foetus were in stable condition without any unexpected emergency medical conditions endangering the lives of either of them; (2) the Applicant discovered her pregnancy in October 2022, and became an NEP after she resigned from her employment when she was nearly 7 months pregnant, but chose to stay in Hong Kong rather than return to Indonesia; (3) the medical officer had advised the Applicant that there was no abnormality in her pregnancy or the foetus, and that the expected date of confinement was 19 June 2023; (4) the Applicant was not restrained by law from leaving Hong Kong; (5) her alleged reason for not returning to Indonesia could not be verified, with no supporting evidence having been provided; (6) the Applicant’s assumption that the Fees would have been the same as those for her first child – born in 2018, when she was an EP – was based on her own speculation; and (7) the Applicant had a boyfriend, whose friend paid $9,000 to pay their rent, so that they were not in desperate social circumstances.

20.  The joint assessment also included that: (1) at the time of her resignation, the Applicant was around 33 weeks pregnant, but opted to give birth in Hong Kong; (2) there was no independent evidence that the Applicant’s brother would harm her upon her return to Indonesia, for example where she had not filed any non-refoulement claim after her resignation; (3) no claims have been pursued by the Applicant against her former employer; (4) the Applicant must have been aware that after her resignation she would be permitted to stay in Hong Kong for only 14 days; and (5) the Applicant had admitted in her self-declaration that (sic) “From the beginning, I has already planned to give birth in HK and confirmed not to return to Indonesia”.

21.  On 20 October 2023, the Applicant appealed against the 1^st Rejection (i.e. the Appeal). She claimed that not only did she not have the financial means to pay the Fees, she was also afraid of going back to Indonesia due to a genuine fear for her and her child’s safety. She also stated that she had submitted a data access request application to the ImmD in order to ascertain her non-refoulement status, reserving the right to submit further documents once the requested documents were received from the ImmD.

22.  On 29 December 2023, Equal Justice wrote a letter in support of the Appeal. The letter summarised the matters in the Appeal Form, and made further submissions for appealing against the 1^st Rejection. After also setting out a chronology of events, the letter concluded:

In conclusion, the reason that Ms. Jumiati remained in Hong Kong to give birth was because she was fearful for her and her child safety back in Indonesia and she had intended to submit a non-refoulement claim to the Hong Kong authorities. However, when she surrendered to Immigration Department, she was instead investigated for other immigration offences relating to her work arrangements with her previous employers. She was therefore prevented from raising a non-refoulement claim in time.

Having provided the above more accurate timeline of the events preceding the date of incurring the medical charges at QEH relating to the birth of her child, we ask that you allow Ms. Jumiati’s appeal and grant her medical fee waiver application.

23.  The HA made enquiries of the ImmD, which responded by stating that the Applicant had never been prevented from raising a non-refoulement claim during her investigation by the ImmD, and that no such claim was in fact raised until 15 September 2023.

24.  Following consideration of the matters relevant to the Appeal, the Applicant and Equal Justice were notified on 11 June 2024 that the Appeal was rejected (i.e. the Decision).

C.  The Decision

25.  As already indicated, the Decision was made on the Appeal from the 1^st Rejection. The terms of the 1^st Rejection noted receipt and review of the documents submitted by the Applicant for the MFW application, and also noted review of the relevant medical records. The material part of its conclusion was put as follows:

Having considered all the above documents, facts and circumstances, we write to inform you that your case did not constitute exceptional circumstance for granting NEP waiver and your application is therefore not successful.

26.  The Appeal from the 1^st Rejection was originally made by the Applicant’s ‘Medical Fee Assistance Appeal Form’ dated 20 October 2023. The Appeal was supplemented by the letter from Equal Justice dated 29 December 2023.

27.  As some of the intended challenge rests upon what was and what was not said in the Decision, it is appropriate to set out its terms in full:

We refer to your letter dated 29 December 2023 together with Ms Jumiati’s Medical Fee Assistance Appeal Form signed on 20 October 2023 against the decision of medical fee assistance in relation to Non-eligible Person (NEP) waiving application being notified on 25 September 2023 for the charges of NEP obstetric package in Queen Elizabeth Hospital (QEH) from 5 to 9 June 2023 totalling $100,200.

We note that in addition to the grounds and documents submitted in her medical fee assistance application (the “Original Application”), Ms Jumiati has supplemented, among others, the following for her appeal application (the “Appeal application”):

1.  3 pages of self-declarations signed by Ms Jumiati on 25 July 2023

2.  Recognizance with serial no. A0374513 issued by Immigration Department (ImmD) to Ms Jumiati on 16 May 2023

3.  “Detention under Section 26(a)” issued by ImmD to Ms Jumiati on 19 May 2023

4.  “Bail under Section 13A of the Immigration Service Ordinance” issued by ImmD to Ms Jumiati with serial no. of AL0184601 on 19 May 2023 and e-A0002347 on 1 December 2023

5.  “Record of Interview” of ImmD with Report No. RBMI/349/22 dated 15 September 2023

6.  ImmD Interview Report (Grounds for non-removal) signed by ImmD Interview Officer and Ms Jumiati on 15 September 2023

Besides, we have sought advice from the Immigration Department (ImmD) and checked with them for practice, procedures and factual account in relation to the investigation process of Ms Jumiati’s case.

According to the “Self-declarations” signed by Ms Jumiati on 25 July 2023 in the original application, we note that Ms Jumiati worked as a Foreign Domestic Helper from 2013 to 2023 in Hong Kong (HK). After her resignation on 28 April 2023, she had remained in HK.

Your letter dated 29 December 2023 supplemented that she gave birth in HK because she was fearful for her and her child’s safety if returning to Indonesia. As claimed, she surrendered to ImmD on 16 May 2023 with the intention of filing a non-refoulement claim. You letter stated that “she was instead investigated for other immigration offences relating to her work arrangements with her previous employers. She was therefore prevented from raising a non-refoulement claim in time” (“the Statement”). We have consulted the ImmD, which advised that the Statement was not factually correct and supplemented that Ms Jumiati has never been prevented from lodging a non-refoulement claim during her investigation by the ImmD while it was not until 15 September 2023 that Ms Jumiati raised a non-refoulement claim during her investigation by the Anti-Illegal Migration Agency of the ImmD.

It is noted from “Bail under Section 13A of the Immigration Service Ordinance” issued by ImmD to Ms Jumiati with serial no. of AL0184601 on 19 May 2023 that Ms Jumiati was released on bail on 19 May 2023 and required to report bail on 31 July 2023. Nonetheless, the above understanding given by ImmD could shed light on when Ms Jumiati had the opportunity to lodge a non-refoulement claim up to patient’s hospitalisation from 5 to 9 June 2023.

Having considered all the circumstances of the case, we write to inform you that the situation of Ms Jumiati case as a whole did not constitute exceptional circumstances for granting medical fee assistance totalling $100,200 and the appeal application is unsuccessful. Ms Jumiati has to settle the outstanding hospital charges $100,200 together with administrative charge $11,000 at Queen Elizabeth Hospital Shroff immediately.

28.  As can be seen, the Decision references the earlier materials provided with the original application, but it is fair to say that the focus is on addressing the additional point raised by Equal Justice, being the suggestion that the Applicant had been “prevented from raising a non-refoulement claim in time”.

D.  The HA’s Policy

29.  The basic principles as to the HA’s general policy regarding MFW applications of NEPs can be found described on the HA website as follows (bold in original):

The provision of public healthcare services in Hong Kong is primarily prioritised to meet the needs of Eligible Persons (EP). The Hospital Authority (HA) would only provide medical services for Non-eligible Persons (NEP) in emergency situations. In non-emergency situations, service provision for NEP is subject to HA’s capacity to provide such services without adversely affecting the services to EP on each episode. Medical services provided by HA for NEP are charged on cost recovery basis as per the Gazette. Before settlement of all outstanding fees, NEP would only be provided with medical services related to major public health threats or in emergency situations. Once the NEP patients are stabilised, they should be discharged or referred back to their own private doctors or their country of origin for continual care.

Therefore, for ensuring rational use of limited public resources, normally there is no waiving of medical charges of NEP unless there are exceptional circumstances with financial hardship. The term “exceptional circumstances” is general and what circumstances may constitute “exceptional circumstances” are not limited. For each application for waiving of medical charges, the HA will consider the circumstances of each patient and decide whether discretion shall be exercised in favour of waiving the medical charges and if discretion is exercised, whether it should be a full or partial waiver.

30.  In the Initial Response, Mr Chan has also referenced the HAHO Operations Circular No. 2/2021 ‘Waiving Arrangement for Non-eligible Persons’. As I understand it, this is not a published document but is issued by the Director (Cluster Services) for reading by all persons involved in processing medical fee waivers and appeal procedures. The basic principles set out in that circular reflect what is published on the website, with perhaps some slight expansion for internal operational purposes. The relevant paragraphs are as follows:

3. For ensuring rational use of limited public resources, HA shall follow the basic principles below for waving of medical charges of NEP patients:

(a) Normally there is no waiving of medical charges of NEP patients;

(b) Waiving of medical charges of NEP patients may be granted where there are exceptional circumstances together with financial hardship. The term “exceptional circumstances” is general and what circumstances may constitute “exceptional circumstances” are not limited; and

(c) NEP patients should be required to pay as much as possible the charges as stipulated in the Gazette and hence due consideration should also be given as to whether partial waiver, instead of full waiver, should be granted.

4. Discretion shall only be exercised in favour of waiving the medical charges of a NEP patient after careful and due assessment. In addition to the assessment on whether there is financial hardship, HA should also assess, on a case-by-case basis, whether the circumstances of a NEP patient, including clinical and social circumstances, constitute “exceptional circumstances”. The following are examples of “exceptional circumstances”:

(a) Emergency treatment of illness (unless the emergency can be avoided by planning such as in the case of childbirth) or injury is required;

(b) Non-emergency treatment of illness is necessary for the protection of the NEP patient or other persons (such as infectious diseases or psychiatric follow-up of the NEP patient) and the NEP patient has a genuine need and no alternative but to stay in Hong Kong;

(c) The NEP patient is restrained by law from leaving Hong Kong;

(d) A NEP pregnant woman cannot leave Hong Kong to give birth due to the development of an unexpected emergency medical condition which threatens the life of mother and/or foetus; and

(e) The social circumstances of the NEP patient are desperate.

5. In addition, for NEP waiver applications involving Obstetric (OBS) Package Charges and the related Accident & Emergency Department (AED) charges, and the inpatient charges for additional hospitalisation period (if any), they should be assessed as a whole and there should not be separate assessment for each of them. It is also necessary to review and consider the waiving for hospital charges incurred by the patient’s baby.

31.  There is also the HAHO Operations Circular No. 1/2023 ‘Waiving Arrangement for Refugees and Non-refoulement Claimants’ which sets out its purpose for refugees and non-refoulement claimants, with the following relevant definition:

Non-refoulement Claimant – a person who has lodged a non-refoulement claim with the Immigration Department (ImmD) on the grounds of (a) “torture” under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (b) “torture or cruel, inhuman, or degrading treatment or punishment” under Article 3 of the Hong Kong Bill of Rights, and/or “persecution”, drawing reference to the non-refoulement principle set out under Article 33 of the 1951 Convention relating to the Status of Refugees.

32.  But that definition is supplemented at §9 as follows:

If a NEP patient did not have a non-refoulement status at/during the period of provision of medical service, the waiving arrangement in this Circular is not applicable to the charge relating to such medical surfaces. Under such situation, the waiving arrangement for Non-eligible Persons under HAHO Operations Circular No. 2/2021 will apply. However, if there is evidence to suggest that such NEP patient had prior to the provision of such medical services approached the ImmD for the purpose of lodging a non-refoulement claim and his non-refoulement claimant status has been confirmed afterwards, the waiving arrangement in this Circular will still be applicable.

33.  Nevertheless, §8 provides that whilst generally non-HK residents are regarded as NEP and would be charged on cost recovery basis for the medical services provided at NEP rate, non-refoulement claimants who have financial difficulty in paying the charges at public hospitals and clinics could approach the various authorities for a waiving application. In addition to valid identity documents, they should produce financial proof and other necessary documents to support the medical fee waiver applications.

34.  That there is a different procedure and operational considerations relating to MFW applications by non-refoulement claimants (in context together with refugees) points to it being easier or more likely for an NEP to obtain a MFW if that NEP has lodged a non-refoulement claim or there is evidence to suggest that the NEP had prior to the provision of such medical services approached the ImmD for the purpose of lodging a non-refoulement claim which claimant status was afterwards confirmed.

35.  But, I think it is correct that despite the special procedure which might be applicable for non-refoulement claimants, the overall approach remains consistent for all NEPs. When making the decision whether waiver or partial waiver will be granted, evaluation is required for assessment of financial and social conditions on a case-by-case basis. Non-refoulement status does not of itself entitle an NEP to an automatic fee waiver.

36.  In any event, the HA’s prevailing (and unchallenged) overall policy is designed to safeguard the prudent allocation of limited public resources, and it is settled that this is a valid primary concern in public healthcare provision. The burden is on the MFW applicant as an NEP to establish the relevant circumstances as bring that NEP within the Policy.

E.  The Intended Grounds of Review

37.  The Applicant’s intended grounds of review are:

(1)  The HA misapplied the policy for MFW applications.

(2)  The HA failed to take into account relevant considerations and/or took into account irrelevant considerations.

(3)  The HA failed to give effect to a procedural legitimate expectation.

(4)  The HA failed to give adequate reasons refusing the Appeal.

(5)  The HA unlawfully delegated the decision-making powers.

(6)  The Decision was Wednesbury unreasonable.

38.  I can deal with each of them in turn below. However, it is worth noting at this point that the main contention underpinning most of the intended grounds of review is that, when making the Decision, the HA relied only on whether the Applicant had raised a non-refoulement claim before her admission to the Hospital.

39.  This seems to be part of the reason why Mr Chan has chosen to address the individual Grounds compendiously, rather than one by one. Mr Chan submits (in my summary):

(1)  The starting point is that the Applicant bore the burden of establishing exceptional circumstances together with financial hardship, which she failed to discharge.

(2)  The challenge proceeds on the erroneous premise that the HA considered only the timing of the Applicant’s non-refoulement claim in making the Decision, and nothing else.

(3)  Nothing prevented the Applicant from leaving Hong Kong and returning to her home country after her resignation from employment on 28 April 2023. But she decided to remain as an over stayer.

(4)  There was no medical reason preventing travel, or necessitating remaining in Hong Kong to give birth.

(5)  By the time of her MFW application, no evidence substantiating any concern about her return to Indonesia had been provided. If there was a true fear for safety, she could have filed a non-refoulement claim – not least in the context that her long-term boyfriend was himself such a complainant.

(6)  As revealed by the Applicant’s self-declaration, it appears that the Applicant did not file any non-refoulement claim because, from the beginning, she had already planned to give birth in Hong Kong and confirmed not to return to Indonesia.

(7)  Though the Applicant had filed a non-refoulement claim by the time of the Appeal, there remained no clear explanation as to why there was no such claim made from 28 April 2023 until 15 September 2023, when there was every opportunity to have done so.

(8)  There is no policy to reject automatically any waiver application made by a NEP who has not raised a non-refoulement claim before the provision of medical services.

40.  I think those matters are established on the documentation provided, and I take them into account in my approach to consideration of the individual grounds below.

F.  Ground 1: Misapplication of Policy

41.  It is trite that a decision-maker must understand his own policy, and what the policy means (if disputed) is ultimately a matter of interpretation for the Court.

42.  But, the way in which the Applicant seeks to pursue this Ground 1 is in essence to argue the merits of the underlying Decision. The Applicant asserts that her case did constitute “exceptional circumstances” as defined in the Policy because of certain facts which are rehearsed. Alternatively, the Applicant is pursuing a ‘boot straps’ point: she asserts that there must have been a misapplication of policy because the conclusion of the decision-maker does not accord with what she says ought to have been the conclusion on the particular facts relied upon.

43.  The Applicant has not put forward what interpretation of the Policy was relied upon by the HA, and any argument as to why it was incorrect. In reality, this Ground really amounts to no more than an irrationality challenge, separately made in any event under Ground 6 (see below).

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

G.  Ground 2: Relevant and/or Irrelevant Considerations

45.  The Applicant submits that the HA failed to take into account the factual matters which, she says, clearly support that there were “exceptional circumstances”. Instead, she says, the HA solely relied on the formal status of her non-refoulement claim at the time of her admission to the Hospital.

46.  However, with respect, this is not arguably borne out by what is stated on the face of the Decision itself. Whilst it is correct that the Decision letter focuses on dealing with the suggestion that the Applicant had somehow been prevented from making her non-refoulement claim earlier than she did, that focus was natural in response to the supplemental information provided by Equal Justice in its letter. Further, where the question whether the Applicant had, prior to the provision of medical services, approached the ImmD for the purpose of lodging a non-refoulement claim might be relevant to the approach, it was obviously a relevant point of focus.

47.  But, the Decision also makes plain that it took into account the other materials and that it was made following consideration of all the circumstances of the case. There is no proper basis for arguing that those circumstances were not taken into consideration, or that the timing of the non-refoulement claim was the only factor considered.

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

H.  Ground 3: Failure to Give Effect to Legitimate Expectation

49.  The Applicant argues that the published Policy of the HA gave rise to a legitimate procedural expectation that each application would be decided on an assessment of the “exceptional circumstances” criterion, and that the relevant bodies would consider the individual situation of each applicant, following a procedure ensuring that all relevant issues can be identified. But, the Applicant argues, the HA’s assessment did not meet this legitimate procedural expectation.

50.  But this is in essence the same circular or boots strap argument attempted to be raised by Ground 1. It presupposes that there was a failure to meet the alleged legitimate procedural expectation because the Decision was not the one which the Applicant says should have been made based upon all relevant considerations.

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

I.  Ground 4: Failure to Give Adequate Reasons

52.  The Applicant acknowledges that there is no absolute right to be provided reasons for a decision of a government body, but asserts that reasons may have to be provided where the right to appeal is granted, and those reasons must show why the decision-maker came to its decision and that it has made a proper assessment. The Applicant argues that the HA has failed to comply with the obligation as its reasoning focuses solely on the time when her non-refoulement claim was lodged, but failed to address all other relevant issues raised by her.

53.  However, as noted in the context of Ground 2 above, the Decision identifies that various factors (“all the circumstances”, and by reference to listed materials) were taken into account, and that it was the HA’s assessment of those factors which were the reason why it concluded that no “exceptional circumstances” had been established.

54.  It is trite that, even where there is a duty to give reasons which are adequate, what amounts to adequate reasons for a decision will depend upon the context in which the decision-maker is operating in the circumstances of the case. Whilst the reasons should show that the decision-maker has addressed the substantial question or issues before it, showing why it has come to its decision, there may not be any need to address each single point. The core requirement is that the reasons should show that the issues arising for serious consideration have been considered.

55.  The core question in this case was whether “exceptional circumstances” and financial hardship had been established. Both the 1^st Rejection and the Decision focused on that core question, by reference to the facts and circumstances identified in the documents provided in support of the MFW application and the Appeal. The Decision also focused on another aspect which might have had some imp[act on the approach.

56.  It may be right that further reasoning could have been provided, but that does not mean that the reasoning in context was inadequate. It can also be noted that the Initial Response has since provided further materials which assist the Applicant (and this Court) to understand the reasoned approach to the decision-making process.

57.  In context, Ground 4 is not reasonably arguable with any realistic prospect of success. In any event, even had the Ground been considered reasonably arguable, I would have declined to give leave on the basis that the underlying documents – which contain more detailed reference to the reasoning of the decision-makers – have now been provided.

J.  Ground 5: Unlawful Delegation

58.  The Applicant argues that, by relying solely on the formal status of the non-refoulement claim, the HA delegated its discretion to the ImmD. The Applicant also argues that only if the ImmD had processed her non-refoulement claim prior to her admission to the Hospital would the HA have granted the Applicant waiver of the Fees. It is also suggested that the HA at no point considered that the Applicant was not in a position to raise a non-refoulement claim to the ImmD before giving birth.

59.  With respect, that last suggestion is clearly without any basis (see above). Further, the main argument is again based on the erroneous suggestion that only the timing of the non-refoulement claim was taken into account.

60.  The Decision was plainly in fact taken by the HA, exercising its discretion under the Policy on the circumstances of the case. To suggest that there was an unlawful delegation is simply not arguable.

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

K.  Ground 6: Wednesbury Unreasonableness

62.  The Applicant argues that the Decision was irrational or Wednesbury unreasonable because: (a) she was de facto required to remain in Hong Kong in light of her need to report to the ImmD on bail by 31 July 2023, and the late stage of her pregnancy meant that she was not able to board a flight at any time after the termination of her employment; and (b) she has no means to pay the medical charges, and refusal of MFW contradicts the true purpose of the Policy to assist those in need, particularly those of a vulnerable group and desperate social circumstances.

63.  It is trite that establishing Wednesbury unreasonableness or irrationality is a high threshold to reach. After careful consideration, I do not think it is reasonably arguably reached in this case.

64.  First, the HA plainly did consider the Applicant’s financial means, including her statement that she had no income and no savings and relied upon (alternatively had the financial benefit of) the payment of her rent by a third party not living with her and her family. But, mere impecuniosity does not itself necessarily lead to MFW, even if it is correct (which it is) that part of the Policy is to assist those who are vulnerable and in desperate social circumstances. Importantly, another part of the Policy is to provide MFW only in exceptional circumstances – in addition to where there is financial hardship.

65.  In this case, it seems to me that the HA has considered the overall circumstances in a way which is not arguably irrational. It is to be remembered that, even by the time the Applicant surrendered to the ImmD on 16 May 2023, the 14-day permission to remain in Hong Kong following her resignation from employment on 28 April 2023 had expired several days beforehand.

66.  Though it can be said that some airlines are reluctant to permit, or may even refuse, pregnant women to travel towards the end of the term of pregnancy, there is no suggestion that the Applicant ever in fact tried to travel. The evidence is actually to the contrary, where (1) there was no medical reason requiring her to remain in Hong Kong as long as up to 16 May 2023, (2) the contemporaneous medical advice included the anticipated date of confinement as 19 June 2023 (still over a month after her surrender to ImmD, though it can also be acknowledged that ultimately she gave birth to the child earlier, on 5 June 2023), (3) the Applicant appears to have assumed, albeit erroneously, and she proceeded on the assumption, that the fees she would be charged would be similar to those incurred at the birth of her first child, and (4) from an early stage in the pregnancy, the Applicant had already determined to give birth in Hong Kong and not to return to Indonesia. Even the self-declarations advanced in support of the MFW application do not reference any concern as to any difficulty in obtaining clearance to board an aircraft for a flight to Indonesia. Rather, they support the other matters stated above.

67.  Nor do I think it was arguably irrational to have taken into account that, when she was not actually prevented from having raised a non-refoulement claim earlier, the Applicant did not do so until significantly after the birth of the child. It may be that she was distracted from doing so, but she was not prevented from doing so, and she must have been aware of the possibility of doing so when her boyfriend is himself such a claimant. Those matters are relevantly and rationally connected to the absence of materials advanced in support of the asserted fear of returning to Indonesia. The matters are also relevant to considering whether there was evidence to suggest that the Applicant, before the provision of medical services to her, had approached the ImmD for the purpose of lodging a non-refoulement claim. Though the debate raised in the correspondence related to whether there had been prevention, it is not irrational to think that where the Applicant was not prevented from making a non-refoulement claim, there was no evidence to suggest that she approached the ImmD in May for that purpose. In fact, she did not do so for another five months (though she expressed a fear of returning to Indonesia in her MFW application, only after the birth of the child).

68.  At the time of her resignation from employment on 28 April 2023, the Applicant was only 33 weeks pregnant, with no suggestion that there was any medical reason requiring her to remain in Hong Kong until the then expected confinement date of 19 June 2023. Despite some speculation that there might have been some difficulty in arranging a flight to Indonesia, there is no actual evidence of any attempt to fly which was thwarted. That seems almost certainly because the Applicant had already chosen not to leave Hong Kong prior to the birth of her second child. This was apparently at least significantly because of her assumption that the fees she would be charged on this occasion would be the same as on the previous occasion (when she was still an EP).

69.  On the materials, it is not unreasonable to think that the Applicant could have left Hong Kong prior to her surrender to the ImmD, such that any question of immigration bail – and any argument that she was de facto required to stay in Hong Kong – simply would not have arisen. She did not surrender and overstay because there was a medical reason for doing so – and she did not at the time lodge or suggest any non-refoulement claim, when she must have been aware of such a possibility and was not prevented from doing so. But, even when the question of bail arose, the bail return date was set for six weeks after the anticipated birth date (and turned out to be even longer after the actual birth date).

70.  Taking the overall circumstances into account, the conclusion reached by the HA cannot arguably be said to be Wednesbury unreasonable or irrational.

71.  Ground 6 is not reasonably arguable with any realistic prospect of success.

L.  Result

72.  However, where the Applicant has failed to identify any reasonably arguable grounds of review with any realistic prospect of success as might lead to the grant of relief, her application for leave to apply for judicial review falls to be dismissed.

73.  I make no order as to costs.