GAO JIE acting by her next friend QU MENGPING v. DIRECTOR OF IMMIGRATION

CACV 315/2024 & CACV 316/2024, [2026] HKCA 523

On Appeal From [2024] HKCFI 1750

(Heard together)

CACV 315/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 315 OF 2024

(ON APPEAL FROM HCAL NO. 817 OF 2019)

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CACV 316/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 316 OF 2024

(ON APPEAL FROM HCAL NO. 2723 OF 2018)

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JUDGMENT

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Hon Anthony Chan JA (giving the Judgment of the Court) :

1.  By a Judgment dated 15 December 2025 ([2025] HKCA 1082) (“Judgment”), this Court dismissed the Applicant’s appeal against the dismissal by Coleman J of her applications for leave to apply for judicial review after a rolled-up hearing. These are the Applicant’s Notices of Motion filed on 12 January 2026 for leave to appeal to the Court of Final Appeal (“CFA”).

2.  There are two questions put forward by the Applicant and said to be of great general or public importance (“GGPI”) which ought to be submitted to the CFA for determination, namely :

(1)     In the context of the Capital Investment Entrant Scheme (“CIES”), whether “normal immigration requirements” include holding a valid travel document with adequate returnability to an applicant’s country of residence or citizenship (“VTD Requirement”)? (“Question (1)”);

(2)     What is the status of the “Immigration Guidelines for Entry to the Hong Kong Special Administrative Region of the People’s Republic of China” (“Guidelines”) published on the website of the Immigration Department?  In particular, whether it constitutes an administrative policy or an information leaflet setting out the Immigration Department’s understanding of its published policies, or otherwise? (“Question (2)”)

3.  This application is opposed by the Respondent (“Director”) as not reasonably arguable and involving no issue of GGPI.

4.  The Applicant is represented by Mr Pun SC, Mr Wong and Mr Chan.  The Director is represented by Ms Tong SC and Mr Sik.

5.  We agree with Ms Tong that Question (1) is largely a re-run of the main argument of the Applicant in the appeal before this Court (see Judgment, [46]-[54]). 

6.  Fundamentally, the Applicant’s submissions under Question (1) are premised on a conflation between the categories of persons who could apply under the CIES (governed by §3.1 of the “Rules for the Capital Investment Entrant Scheme” (“Rules”)) and the requirements which had to be met by applicants to establish eligibility for approval under that Scheme, including “normal immigration and security requirements” (governed by §2.1 of the Rules): see Judgment, [48(1)].

7.  There is no reason to believe that any one of the categories of applicants would be exempted from meeting the requisite requirements. 

8.  We are unable to agree with Mr Pun that reading the Rules as a whole, “normal immigration requirements” in §2.1(e) thereof should not include the VTD Requirement.  Otherwise, the requirement of “proven re-entry facilities” in §3.1 of the Rules would be otiose.  The need for a stateless applicant to have “proven re-entry facilities” as provided under §3.1 served the purpose of identifying an important requirement for a stateless applicant the absence of which would disentitle him in applying under the CIES.

9.  Also, we do not agree with Mr Pun that after entry to Hong Kong under the CIES the VTD Requirement would not serve any discernible purpose.  A successful applicant under the CIES would only be allowed to stay in Hong Kong for 2 years.  Upon expiry, extension for his stay would have to be renewed biennially “on the same conditions and on the same basis” (§8.1 of the Rules).  Extension would not be a certainty, and meeting the VTD Requirement would enable the applicant to return to his place of residence or citizenship. 

10.  In the premises, we agree with Ms Tong that Question (1) is not reasonably arguable.

11.  As regards Question (2), §§1 and 2 of the Guidelines had been set out on pp 15 to 16 of the Judgment.  The former states that the Guidelines set out the visa/entry permit requirements for persons wishing to enter the HKSAR.  The latter makes clear that an applicant should meet both the normal immigration requirements (such as the VTD Requirement), as well as the relevant eligibility criteria for specific types of visas applied for.  The Guidelines also contains a summary of the eligibility requirements for CIES at §§58 to 61, as well as a hyperlink to the Rules. 

12.  We agree with Ms Tong that an objective reader of the Guidelines would understand them to be part of the Director’s policy on applications for entry into Hong Kong, and that the requirements set out in the Guidelines have to be met before any visa/entry permit would be granted.

13.  The submissions of the Applicant are based on various wordings of the Guidelines as being inconsistent with the nature of a published administrative policy but indicate that the document merely sets out the Immigration Department’s understanding of its published policies.  To begin with, it has not been made clear by Mr Pun what material difference there is in this case between published administrative policy (on immigration) and the Immigration Department’s understanding of its published policies. 

14.  Conceptually, the proper construction of an administrative policy is a matter of law (Judgment, [32]).  If it is contended that the Director had misunderstood its published policy, the matter falls within Question (1).  Question (2) adds nothing to the resolution of dispute between the parties.  See also para 18 below. 

15.  The Applicant relies on the following wordings in support of her argument under Question (2): (a) §1 of the Guidelines referred to the document as an “information leaflet” which “serves as reference only”; §2 provides that “the eligibility criteria may be subject to change from time to time without prior notice”; and (c) §70 of the Guidelines is a disclaimer: “The Immigration Department of the HKSARG is not responsible for any loss or damage whatsoever arising out of or in connection with any information in this leaflet.  The Immigration Department reserves the right to omit, suspend or edit any Information in this leaflet at any time in its absolute discretion without giving any reason or prior notice.”

16.  The submissions of the Applicant are not supported by any authority, save for the proposition that the proper construction of an administrative policy is one of law.

17.  In our view, whether the Guidelines are part of the immigration policies of Hong Kong is a matter of substance.  Apart from the provisions of §§1 and 2 of the Guidelines, for the reasons stated in [38] of the Judgment, it is clear that the Guidelines are part of the immigration policies of Hong Kong.  It follows that Questions (2) is not reasonably arguable.

18.  Ms Tong also submits that even if the Applicant succeeds in arguing that the Guidelines do not form part of the Director’s policy, this will not enable her to succeed in the judicial reviews to quash the decisions in question.  The Applicant still has to establish that the Director had acted in breach of its own policy by requiring her to satisfy the VTD Requirement, which is in effect Question (1).  Thus if Question (1) is unarguable, the dispute over the applicability of the Guidelines under Question (2) is purely academic. 

19.  No answer was offered to this submission in Mr Pun’s Reply Skeleton Submissions.

20.  There is certainly force in Ms Tong’s submission bearing in mind especially that (a) Mr Pun has made no submission on what “normal immigration requirements” would include or why the VTD Requirement would be outside such requirements; and (b) this Court had endorsed Coleman J’s observation that even if there was no statement on what “normal immigration requirements” might include, naturally and logically they would include a VTD as would permit returnability of the holder to his/her country of residence or citizenship (Judgment, [55]). 

21.  Finally, on the issue of GGPI, whilst it may be said that Questions (1) and (2) would potentially affect the rights and interests of all persons who are subject to the CIES, they are only relevant to case(s) where the applicant is unable to meet the VTD Requirement. There is no reason to believe that such case(s) would be anything other than uncommon.  Certainly, the facts of this case are highly uncommon.  We are not satisfied that there is any issue of GGPI in this case. 

22.  For these reasons, the Notices of Motion are dismissed.  We see no reason why costs should not follow the event, and award costs of these applications in favour of the Director.  No submissions have been made by the Applicant on the Statements of Costs submitted by the Director.  Such costs are summarily assessed at HK$75,000 for each Notice of Motion.

23.  We are grateful to counsel for their assistance.