MANI KUMAR PHIYAK LIMBU v. DIRECTOR OF IMMIGRATION

HCAL 102/2025

[2025] HKCFI 779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 102 OF 2025

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D E C I S I O N

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A.  Introduction

1.  By his Form 86 dated 8 January 2025, the Applicant seeks leave to apply for judicial review so as to challenge decisions of the Director of Immigration (“Director”) dated 15 March 2024 and 8 May 2024, refusing to grant a dependant visa to his mother and 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 8 May 2024 was actually the last in a string of decisions made by the Director relating to the same applications for dependant visas.

5.  Indeed, the Applicant’s affirmation says (sic):

The Director of Immigration Department has refused my mother and son’s entry application(s) as my dependent on 11/09/2019, 08/07/2020, 27/02/2023 & 15/03/2024, respectively. The Director of Immigration failed to take relevant factors into account in relation to my mother & son’s dependent visa applications. For the above facts, I would request for review the Director of Immigration’s stated decision made on 15/03/2024 and 8^th May 2024.

6.  In fact, the first of those dates listed referred to correspondence from the Director/Immigration Department which does not actually contain any decision, but was a request for further information (something repeated later).

7.  However, there was certainly a decision on 8 July 2020 (“1^st Decision”), when the Director notified the Applicant that the dependant visa applications were refused, because the Director was not satisfied that the applicants were the Applicant’s dependant and that the applicants were coming to the HKSAR to join as his dependant. The letter also notified that there were no strong compassionate or humanitarian reasons or other special extenuating grounds warranting a departure from the prevailing policy.

8.  There seems to have been either a request for reconsideration of the 1^st Decision or a renewed application. This led to further requests for information during 2022.

9.  On 27 February 2023, the Director wrote (“2^nd Decision”) to inform the Applicant that the visa applications were refused, as the Director was not satisfied that the applicants were genuine dependants of the Applicant, physically emotionally and financially depending on him, and there existed no strong compassionate or humanitarian reasons or other special extenuating grounds warranting a departure from the prevailing policy.

10.  There seems to have been either another request for reconsideration or a further renewed application. This also led to requests for further information. The Director’s letter dated 15 March 2024 (“3^rd Decision”) informed the Applicant that his further request and representation did not form any fresh ground pertinent to the refusal, so that the decision dated 27 February 2023 (i.e. the 2^nd Decision) still stood.

11.  There then appeared to be either another request for reconsideration or a renewed application in respect of the Applicant’s mother. That led to further requests for information. Eventually, on 8 May 2024, the Director informed the Applicant that the application for dependant visa was refused (“4^th Decision”), as the Director was not satisfied that the mother is a dependant and coming to the HKSAR to join the Applicant as his dependant. The letter also pointed out that there were no strong compassionate or humanitarian reasons or other special extenuating grounds warranting a departure from the prevailing policy.

C.  Significant Delay

12.  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.

13.  That may be an attempt at an explanation for the delay in bringing the application, which is obviously out of time. (In passing, I also note that this wording is the same – verbatim – as on another Form 86, issued at nearly the same time, by another applicant who also previously used the same solicitors in dealings with the Director.)

14.  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.

15.  The 2^nd Decision (apparently relating to the son) was given on 27 February 2023. The long stop 3-month period for seeking to challenge that later decision expired on 26 May 2023. It is also settled that the time within which to challenge a decision is not extended merely by asking for a reconsideration of that decision. But even the reconsideration 3^rd Decision was made as long ago as 15 March 2024. The 4^th Decision (apparently relating to the mother) was given on 8 May 2024. The long stop 3-month period for seeking to challenge even that later decision expired on 7 August 2024.

16.  These proceedings were commenced on 8 January 2025. There was therefore a significant delay of around 20 and 5 months after the dates of the impugned decisions.

17.  I do not think the apparently offered explanation – speaking to friends and solicitors and gathering documents – justifies the grant of an extension of time. That is particularly so where, in his dealings with the Director, the Applicant had assistance from a firm of solicitors or ‘litigation and immigration consultants’ acting for him (and who practice from the address given by the Applicant as his own address on the Form 86).

18.  In any event, if time was spent gathering documents which are relevant to the underlying dependant visa applications, those are unlikely to be of particular assistance in an intended judicial review challenge. In such a case, the Court does not act in any appellate capacity, nor does it focus on the merits of the impugned decision. Rather, the Court looks at the integrity of the decision-making process. None of the documents now produced, even with the benefit of the delay, appeared to be of any materiality as regards the decision-making process.

19.  I also take into account the context that the 1^st Decision, from which the rest flowed, was made as long ago as July 2020.

20.  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

21.  In reaching that conclusion, I have of course also taken into account the apparent merits or otherwise of the intended application. Actually, there are no merits.

22.  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.

23.  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 except the unparticularized suggestion of “improper procedure”. The affirmation merely makes another unparticularized suggestion that the Director “failed to take relevant factors into account”. These do not identify any proper public law ground of review.

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

E.  Result

25.  The intended challenge to the impugned decisions is significantly out of time, with no explanation for the delay which would justify the grant of any extension of time.

26.  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.

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