SUBBA JANUKA v. DIRECTOR OF IMMIGRATION

HCAL 2628/2025

[2026] HKCFI 1950

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2628 OF 2025

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D E C I S I O N

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A. Introduction

1.  By Form 86 dated 28 November 2025, the Applicant seeks leave to apply for judicial review so as to challenge the decision of the Director of Immigration dated 19 November 2025 (“Reconsideration Refusal”), rejecting her request for reconsideration of his decision dated 16 May 2025 for her application for extension of stay and change of status.

2.  I gave directions permitting the Director to file an Initial Response, and for the Applicant to file a Reply.  Following extensions to my originally set timetable, both documents were filed.  The Initial Response was signed by Mr Felix Lee, Senior Government Counsel.  The Applicant, acting in person, also later filed a Further Reply.

3.  Having considered the application materials, it seems to me that the application can appropriately be dealt with on paper.

4.  This is my Decision.

B.     Background of Application

5.  The Form 86 states that the grounds on which relief is sought and other information in support of the application for leave to apply for judicial review are to be found in the Applicant’s affirmation.  The following is a summary of that material, supplemented by matters shown in the Initial Response and Reply.

6.  The Applicant is an Indian national, born in 1990.  She came to Hong Kong to work as a foreign domestic helper (“FDH”), with her last limit of stay until 27 March 2025.

7.  During her stay in Hong Kong, she met and developed a relationship with Mr Neupane Rakesh, the man who later became her husband (“Husband”).  They were married on 29 September 2024.  There is no child of the marriage.

8.  Before they met, the Husband had sustained an injury at work in around July 2021, leaving him with severe residual disability.  Hence, from the beginning of the relationship, the Applicant has been the sole person responsible for his care, and the residual disability hampers the Husband’s ability to take up highly paid work.

9.  After the marriage, the Applicant applied on 12 November 2024 for extension of stay and change of status, to take up residence in Hong Kong as a dependant of the Husband as sponsor.  On 19 December 2024, the Director refused the application.  The refusal was on the stated basis that, having carefully considered all the information available on the circumstances of the case, the Director was not satisfied that the Husband was financially capable of supporting the Applicant’s living in Hong Kong at a standard well above the subsistence level (“Financial Capability Requirement”).

10.  Following advice of an Immigration Consultant, the Husband moved to a smaller flat with lower rent and later terminated the employment of a FDH.

11.  The Applicant then made a second application to the Director on 18 March 2025, together with documents advanced in support of that application.  Those documents included proof of the Husband’s employment since July 2020 earning HK$19,000, a rental agreement in the sum of $5,500 and utility bills receipts in the sum of about HK$500.

12.  On 16 May 2025, the Director refused that second application.  The reason given was again that the Director was not satisfied that the Financial Capability Requirement was met.

13.  The reasons for refusal of that second application can be found in an Immigration Department (“ImmD”) internal minute “M.1”.  In gist, the following relevant matters were taken into account and considered:

(1)     The husband was working as a security guard on a full-time basis, with average monthly salary from November 2024 to April 2025 of HK$15,465.

(2)     The Husband’s bank account balance was HK$17,679.54.

(3)     The Husband’s credit score fell below the I Category as at 10 April 2025.  He had outstanding loans totalling HK$368,831, which were written off.  Upon being questioned as to the plan to repay the loan, the Husband responded that the loans had been written off and he did not have any repayment plan.

(4)     On the Husband’s major expenses, he paid HK$5,500 rental and HK$4,900 for employing a FDH.

(5)     Therefore, after deducting monthly expenditure, the Husband had a disposable income of around HK$5,065 for a family of two. Taking that and the considerable outstanding loan into account, it was considered that the Financial Capability Requirement was not met.

14.  On 23 May 2025, the Applicant filed a first reconsideration request (“1^st RR”).  The Applicant stated that, in addition to existing full-time employment, the Husband had secured part-time employment as a clerk at a human resources company (“LRB”), so that his total monthly income could demonstrate meeting the Financial Capability Requirement.  A copy of the part-time employment contract with LRB was submitted.

15.  For comprehensive assessment, ImmD conducted field visits at the reported workplace address of LRB on 26 June 2025 and 15 July 2025.  Suspicions were raised about the genuineness of the Husband’s part-time employment as claimed by the Applicant.

16.  By letters dated 1 and 26 September 2025, ImmD requested the Applicant (amongst other things) to furnish specified documents and to provide explanations going to ImmD’s suspicions about the genuineness of the Husband’s part-time employment.  The Applicant provided some documents, but none of them were thought to address the issue of the genuineness of the employment.

17.  On 19 November 2025, the Director rejected the 1^st RR on the basis that after careful consideration of all the information made available and circumstances of the case, he could find no reason or justification for reversing the earlier decision, i.e. the Reconsideration Refusal.  The reasons for the Reconsideration Refusal of the 1^st RR are found in another ImmD internal minute.  In gist, ImmD took into account the relevant matters and considered that:

(1)     The field visits raised suspicions about the genuineness of the Husband’s part-time employment as claimed by the Applicant. Although opportunities were given to address those suspicions, the Applicant did not do so.  ImmD was not convinced that there existed a genuine employment relationship between LRB and the Husband, so that his claim to earning extra income from part-time employment was not substantiated.

(2)     The Husband maintained a five-digit bank account balance according to the bank statement of July 2025.

(3)     The credit score situation remained the same.

(4)     It was noted that the Husband had terminated the employment of his FDH.

(5)     In conclusion, it was not accepted that the Husband had a new source of income since the refusal of the second dependant visa application.  Given the Husband maintained a low savings level but a significant amount of outstanding loan, there was no improvement to the Husband’s financial situation.  The Financial Capability Requirement remained unsatisfied, and there was no fresh ground for justifying a reversal of the refusal of the second dependant visa application.

18.  The Applicant filed a second reconsideration request (“2^nd RR”) on 25 November 2025, which is currently being assessed by the Director.

19.  On 28 November 2025, the Applicant brought these proceedings.

C.     Intended Grounds of Review

20.  The Applicant advances two intended grounds of review:

(1)     Ground 1: The Reconsideration Refusal was wrong in principle and reached through procedural unfairness.

On this Ground, the Applicant argues that the disposable income available after deducting the family expenses from the Husband’s salary is HK$13,000, which she believes is enough to support her living in Hong Kong at a level well above the subsistence level.  Hence, the Director failed to follow proper procedures in calculating the disposable income resulting in the rejection of the applications.

(2)     Ground 2: Unreasonableness and procedural unfairness by the Director when considering extenuating grounds which warrant exceptional consideration.

On this Ground, the Applicant argues that there are exceptional, humanitarian and compassionate grounds to justify the extension of stay and change of status because she is the sole person responsible for the care of her husband in Hong Kong owing to his disability, so that she should be allowed to reside in Hong Kong to take care of his health.  She also argues that there would be hardship if she were forced to return to India, and that the rejection of her application is unfair and should have been approved.

21.  I can consider each of these Grounds in turn.  I can then consider the point arising from the Director’s submission that the Applicant has failed to exhaust all alternative remedies, and the matters arising from the Further Reply.

D.     Ground 1

22.  The following principles relating to visa applications and extensions of stay are well-established, against the well-known context that Hong Kong appropriately adopts restrictive immigration policies and practices:

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

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

(3)     If the Director fails to take into account 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.

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

(5)     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.

(6)     Hence, 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.

(7)     Another way of putting it is that the Court exercising its judicial review jurisdiction does not reach its own conclusion on the primary facts, and should accept apparently tenable conclusions (including conclusions as to credibility).

(8)     It is the burden of the person seeking permission to reside in Hong Kong to show such facts as might persuade an immigration officer that his circumstances are such as to fall within a policy adopted by the Director.  It is not for the Director to have to show that an applicant or an application falls outside the policy.

(9)     It can be added that, though it may be that the Director from time to time seeks further information than is originally provided in support of an application, that does not create some ongoing obligation on the Director to continue to seek materials or to identify for, or to teach, the applicant what might provide sufficient evidence to satisfy the relevant requirements.

(10)     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.

23.  As to the Financial Capability Requirement specifically, it is one eligibility criterion which an applicant must satisfy before he can come within the Dependant Visa Policy.  The Director is entitled to look at all regular and reasonable expenses that the sponsor is required to pay in order to see whether he could financially support the applicant at “a living standard well above the subsistence level”.  That term means a level significantly or appreciably above the subsistence level of the bare necessities of life sustaining.

24.  On the materials relevant to the 1^st RR, I do not think it is reasonably arguable that the Director erred in the application of the Financial Capability Requirement.  The Director took into account matters all supported by the evidence, that (1) the Husband maintained a five-digit personal bank account balance, with low level of savings, (2) there was a significant outstanding loan with no repayment plan, (3) the sole source of income was from full-time employment, where the claimed income from part-time employment should be disregarded, and (4) the Husband had now stopped expenses of employing a FDH.

25.  I note that the Applicant does not now contend that the income from claimed part-time employment should be taken into account.  However, in her Reply, she maintains that the total disposable income remains about HK$13,000, which she says permits a standard well above the subsistence level.

26.  I accept Mr Lee’s submission that the gist of the Applicant’s case on this aspect turns on her disagreement as to the method of assessing the Financial Capability Requirement.  The Applicant treats it as involving a simple calculation of disposable income, whereas the Director approaches the assessment by reference to the overall financial position, including levels of savings and indebtedness.  I accept that the Director’s approach is reasonably one open to him, and that the conclusions reached on the material were also reasonably reached as a matter of public law.

27.  I do not think the Applicant’s case is assisted by the offered explanation as to why the Husband maintained low savings (namely that he had to travel to Nepal twice to visit his sick mother and perform the necessary rituals after her death).

28.  As to the weight to be given to the outstanding loans, the Applicant emphasises that the credit report shows no active loans payable, because they are written off under “Closed Credit Accounts”, implying that lending institutes would not commence legal proceedings to recover the loans, or else they would have done by now.  I see some force in that submission, but I do not think it is not open to the Director to place some weight on the fact that there is a large outstanding loan amount, even if no recovery proceedings in relation to the loans have so far been commenced, and may not be commenced.

29.  I will return below to the matter of the accepted Sanctioned Payment made in the Husband’s personal injury claim, but that material was not before the Director – and is therefore irrelevant to consideration of the Director – at the time of the 1^st RR.

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

E.     Ground 2

31.  On behalf of the Director, Mr Lee submits that the factual basis underpinning Ground 2 – namely the Husband’s disabilities and the Applicant being his sole carer – was not provided or substantiated by evidence before the Director at the time of the second dependant visa and 1^st RR applications.  Whilst I accept that judicial review proceedings are not intended to provide an avenue for revisiting the decision-maker’s assessment in the hope that the Court may consider the matter afresh absent any legal error, I do not think this factual basis was substantially a reason for reaching the impugned Decision.

32.  However, even leaving that aside, it is trite that the Director is under no legal obligation to take into account humanitarian or compassionate factors, when deciding whether to grant or refuse a dependant visa.

33.  Therefore, there can be no public law ground of criticism based upon an allegation that the Director failed to take into account such factors.

34.  Though it may not be applicable in this case, it can also be borne in mind that if the Director voluntarily takes humanitarian or compassionate factors into account, the weight to be given to those factors is a matter for the Director, and not the Court, subject only to potential judicial review on the integrity of the decision-making process.

35.  Lastly, it is also trite that the policy underpinning the possible grant of a dependant visa does not include any intention or right to family union.

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

F.     Alternative Remedies and Further Reply

37.  It is trite that judicial review is an exceptional remedy, where the grant of judicial review relief is a last resort in the discretion of the Court.  The existence of an available alternative remedy will likely, if not always, make an application for leave to apply for judicial review inappropriate or premature.

38.  In this case, Mr Lee submits that the Applicant has – and is pursuing – an available alternative remedy in the making of the 2^nd RR.  He says that, in deciding the 2^nd RR, the Director will take into account the latest circumstances and new information that the Applicant did not provide in making the 1^st RR.  Hence, a challenge to the Decision on the 1^st RR is premature, and the challenge should be rejected as a result of the failure to exhaust all alternative remedies.

39.  In her Reply, the Applicant suggested that the Director’s stance does not make sense when the Director not only rejected the 1^st RR by the Reconsideration Refusal, but issued a notice requiring her to depart from Hong Kong on or before 3 December 2025.  Even after making the 2^nd RR on 25 November 2025, the Applicant was told that she was still required to leave Hong Kong on or before 3 December 2025.  Nevertheless, since the present proceedings began, the Director has permitted the Applicant to stay in Hong Kong pending the determination of this application for leave to apply for judicial review and the 2^nd RR.

40.  It seems to me that this point needs to be considered against the usual and trite requirement that applications for leave to apply for judicial review must be brought promptly, and in any event within the long stop three-month period (absent good reason for the grant of an extension of time).  It is equally trite that the mere request for reconsideration of a decision does not extend the time for making a judicial review challenge.

41.  Hence, it seems to me that it was not inappropriate for the Applicant to bring the present proceedings to challenge the Decision made on the 1^st RR, notwithstanding the making of the 2^nd RR.  Indeed, I am not sure that the making of a further reconsideration request provides the kind of available alternative remedy of the sort usually in mind in the context of judicial review proceedings.

42.  On the other hand, in light of the further material available – deployed by the Applicant in the context of the 2^nd RR and by her Further Reply in these proceedings – it does seem to me that the continuation of these proceedings has likely become unnecessary.

43.  At this point in time, in addition to any other further information provided for the 2^nd RR which was not provided for the 1^st RR, the Applicant seeks specifically to point to the fact that the Husband has decided to accept a Sanctioned Payment or Offer made by the defendants to his personal injury claim.  The sum offered and accepted is HK$1.5 million.  In light of that fact, the Applicant now submits that the Husband will receive that sum in the near future, so that even if the loan amounts are treated as repayable, the Husband will be financially capable of providing the Applicant a living well above the subsistence levels in Hong Kong.

44.  But whether or not the Director agrees with that submission seems to me to be a matter for the Director to consider in the context of the 2^nd RR, and not for the Court to consider in the context of an intended challenge to the Reconsideration Refusal on the 1^st RR when that material was not previously available.  In short, this newly available material does not identify that there are reasonably arguable public law grounds of review justifying the grant of leave to apply for judicial review of the Reconsideration Refusal on the 1^st RR.

G.     Result

45.  In the circumstances, the Applicant’s application made in these proceedings for leave to apply for judicial review is dismissed.

46.  In the exercise of my broad discretion as to costs, I make no order as to costs.