GURUNG SHANTI v. DIRECTOR OF IMMIGRATION

HCAL 170/2025

[2025] HKCFI 368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 170 OF 2025

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D E C I S I O N

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A.  Introduction

1.  By her Form 86 dated 13 January 2025, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Director of Immigration (“Director”)  dated 1 July 2024, refusing to grant a dependant visa to her son. 

2.  Having considered the materials provided, I am satisfied that it is appropriate to deal with this application on paper. 

3.  This is my Decision. 

B.  The Intended Challenge

4.  As the Applicant’s supporting affirmation and exhibits reveal, the decision dated 1 July 2024 (“2^nd Reconsideration Decision”)  was actually made by the Director on the second occasion that the Applicant sought reconsideration of an original decision to refuse the application for a dependant visa made on 14 November 2023 (“Original Decision”). 

5.  The Original Decision notified that the Director was not satisfied that the dependant visa applicant was a genuine dependant, and in addition there existed no strong compassionate or humanitarian reasons or other extenuating circumstances warranting departure from the prevailing policy. 

6.  There seems to have been a request for reconsideration of the Original Decision made by letter from or on behalf of the Applicant dated 27 November 2023.  On 9 February 2024, the Director wrote (“1^st Reconsideration Decision”)  to inform the Applicant that the request for reconsideration was refused, as the information provided and representation made did not serve to form any fresh ground pertinent to the refusal in the Original Decision, which therefore still stood. 

7.  There seems to have been the second request for reconsideration made by letter dated 22 April 2024, which was dealt with by the 2^nd Reconsideration Decision. 

8.  In her supporting affirmation, the Applicant simply suggests that the Director failed to take relevant factors into account in relation to her son’s dependant visa applications (plural).  However, there is no identification of what factors are said to be relevant and which were not taken into account.  Though the affirmation includes certain documentary materials and photographs, there is no identification as to which of those materials or photographs are said to have been provided to the Director and as to the relevant factors which were allegedly not taken into account and/or why it is said they were not taken into account. 

C.  Significant Delay

9.  At the foot of the Form 86, in the place where there ought to have been identified the grounds on which relief is sought, the Applicant wrote (sic):

I was taking advise from the friends and solicitors and gathering materials i.e. All the correspondence and family photos. 

10.  That may be an attempted explanation for the delay in bringing the application, which on its face is an intended challenge to the 2^nd Reconsideration Decision.  

11.  It is trite that an application for leave to apply for judicial review must be made promptly and in any event within 3 months of the date when the grounds for the application first arose, usually by reference to the date of the impugned decision.  If the leave application is not made promptly or within that long stop period, there needs to be an application for an extension of time within which the leave application can be made, identifying the circumstances as might justify the grant of an extension. 

12.  The 2^nd Reconsideration Decision was given on 1 July 2024.  The long stop 3-month period for seeking to challenge that decision expired on 30 September 2024. These proceedings were commenced on 13 January 2025, therefore 3½ months after that date.  That is not an insignificant delay.  But, I do not think the apparently offered explanation – speaking to friends and solicitors and gathering documents – justifies the grant of an extension of time, not least where in her dealings with the Director the Applicant has previously had the assistance from a firm of solicitors or ‘litigation and immigration consultants’ (who practice from the address given by the Applicant as her own address on the Form 86). 

13.  In any event, there is a more fundamental timing problem.  That is because the Original Decision was made on 14 November 2023, a date 14 months before the commencement of these proceedings, and 11 months after the expiry of the long stop period within which any intended challenge to the Original Decision should have been made. 

14.  It is settled that the time within which to challenge a decision is not extended merely by asking for a reconsideration of that decision. That is particularly so in this case, where it seems that the request for reconsideration did not provide further information representations which formed any fresh ground pertinent to the refusal in the Original Decision. 

15.  Further still, the 1^st Reconsideration Decision was made on 9 February 2024, a date more than 11 months before the commencement of these proceedings, and more than 8 months after the expiry of the long stop period within which any intended challenge to the 1^st Reconsideration Decision should have been made. 

16.  There has been delay throughout.  Quite simply, there are no materials which persuade me that the circumstances of this case justify an extension of time for bringing the intended challenge.  That, of itself, is fatal to the application. 

D.  No Merit

17.  In reaching that conclusion, I have of course also taken into account the apparent merits or otherwise of the intended application. 

18.  There are no merits.

19.  It is trite that pursuant to the mandatory requirements set out in the Rules of High Court Order 53 rule 3(2), an application for leave to apply for judicial review must be in the Form 86 which should include a statement of (amongst other things)  the grounds for the relief sought.  There must also be an affidavit verifying the facts on which the application is based. 

20.  I do not think the Form 86 and the affirmation in this case satisfy those mandatory requirements.  No ground at all is set out on the Form 86, and the affirmation merely makes the entirely unparticularized suggestion that the Director failed to take relevant factors into account. 

21.  That is a further reason for dismissing the application. 

E.  Result

22.  The intended challenge to the impugned decision is significantly out of time, with no explanation for the delay which would justify the grant of any extension of time.  Further, the impugned decision identified in the Form 86 is the result of a request for a second reconsideration of an original decision, where that original decision and the decision on the first request for reconsideration were significantly earlier in time. 

23.  In any event, the Applicant has failed to identify any public law grounds of review which are reasonably arguable with any realistic prospect of success. 

24.  For those reasons, the Applicant’s application for leave to apply for judicial review is dismissed.  I make no order as to costs.