ZAFAR, AYESHA v. DIRECTOR OF IMMIGRATION
[2026] HKCFI 573
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HCAL 2363/2025 [2026] HKCFI 573 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2363 OF 2025 ________________________
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__________________ D E C I S I O N __________________ A. Introduction 1. By her Form 86 dated 22 October 2025, the Applicant seeks leave to apply for judicial review so as to challenge two decisions of the putative respondent Director of Immigration (“Director”), being:
2. The Form 86 also requested an oral hearing of the application for leave, in the event that the Court was minded not to grant leave on the papers. I gave directions for such an oral hearing, including to permit the Director to file an Initial Response. The oral hearing was originally fixed for 11 December 2025. 3. The Initial Response was filed on 26 November 2025, signed by Ms Angel Zhi, Acting Senior Government Counsel, and intended to stand also as her skeleton submissions for the oral leave hearing. 4. As a result of the content of, and attachments to, the Initial Response, the Applicant’s solicitors asked for the hearing fixed for 11 December 2025 to be re-fixed to a later date, to permit the Applicant properly to consider her position, and for there to be a fair hearing. The letter also suggested that the Applicant might amend the Form 86 and file a supplemental affirmation. The letter sought the re-fixed hearing to be no earlier than 15 January 2026. I accepted the request, and I re-fixed the oral leave hearing for 23 January 2026. 5. At that hearing, the Director was represented by Ms Zhi, and the Applicant was represented by Mr Owen Tsoi of Counsel. 6. In his submissions, Mr Tsoi confirmed that there would be no application to amend the Form 86, and there would be no supplemental affirmation from Applicant. He also limited the intended challenge to just two grounds of review, namely:
7. At the conclusion of the hearing, I reserved my decision to be handed down later. This is my Decision. B. Background 8. Before turning to the intended grounds of judicial review, and the questions of the need for an extension of time and the possibility that the application is academic, I can usefully identify the material background which can be set out as follows. 9. The Applicant is a Pakistani national born in 1993. She has been married twice. She married her first husband, who was a Hong Kong permanent resident, in 2017. But they were divorced in 2021. She married her second husband in 2023. 10. The Applicant applied to the Immigration Department (“ImmD”) for, and was granted entry for, residence as the dependant of her first husband in January 2019, and her limit of stay under the sponsorship of her first husband was last extended until 2 September 2022 (which turned out to be after their divorce). 11. On 30 August 2022, the Applicant applied (via legal representatives) for extension of stay and change of status for employment as a professional under the GEP, which is an immigration scheme for persons who wish to enter/stay in Hong Kong for employment as professionals. 12. The GEP Guidebook sets out the eligibility criteria for applying for a visa under the GEP, and provides that an application may be favourably considered if:
13. The intended employment was for the post of General Manager under the sponsorship of Crispi Bun Kitchen Ltd (“S1”), with a monthly salary of HK$20,000 and accommodation allowance of HK$3,000. Amongst other documents, the Applicant furnished a copy of the certificate said to be a Bachelor of Arts degree certificate issued to her by the University of the Punjab. 14. The first application under GEP was approved, but on the express basis that the next application for extension of stay would be subject to business review, where the Applicant/S1 would be required to demonstrate business activities have been actively carried out and beneficial to the local economy, job opportunities have been created for local people and the local office had been properly set up. Permission to remain on employment status was granted until 16 November 2023. 15. Though perhaps not central to the current intended challenge, it can be noted that the Applicant’s second husband was also granted an extension of stay and change of status from foreign domestic helper to that of dependant of the Applicant. His permission to stay obviously stood or fell together with that of the Applicant, and his limit of stay was throughout in line with that of the Applicant as his sponsor. He left Hong Kong on 15 August 2025. 16. On 24 October 2023, the Applicant (again via legal representatives) applied for extension of stay under the continued sponsorship of S1. The application was granted, again on the same express basis that a further application for extension of stay would be subject to business review. The limit of stay was extended until 16 November 2024. 17. On 28 October 2024, the Applicant (again via legal representatives) applied for further extension of stay under the continued sponsorship of S1 (“Extension Application”). 18. On 25 November 2024, ImmD wrote to the Applicant’s legal representatives requesting additional information/documents, including S1’s annual return, audited financial report, bank statements, proof of business activities, business plans and proof of the Applicant’s latest academic qualifications. In these proceedings, the Applicant has laid some stress on the fact that the letter asked the Applicant to note that “personal attendance/interview at [ImmD] office is not necessary at this stage”. 19. On 21 December 2024, the Applicant’s legal representative submitted additional documents/information, including a copy of the certificate purporting to be the Bachelor of Arts degree certificate issued to the Applicant by the University of the Punjab. On 15 January 2025, ImmD wrote to seek further information/documents. That letter also asked the Applicant to note that personal attendance/interview was not necessary at that stage. On 13 February 2025, the Applicant’s legal representative submitted S1’s financial statement from April 2024, whilst awaiting audited financial reports under preparation. 20. On 7 November 2025, ImmD emailed the University of the Punjab seeking verification of the Applicant’s academic record. On 17 January 2025, the University of the Punjab replied to state that the Bachelor of Arts degree certificate submitted by the Applicant was confirmed as “bogus”. 21. By letter dated 30 April 2025, the Director refused the Extension Application (i.e. the 1st Decision). The letter referred to the relevant immigration policy, and stated that having considered all available information and circumstances of the case, the Director was not satisfied that the Applicant had met the criteria. 22. It is also now clear from the minutes of the 1st Decision that the reasons for refusal of the Extension Application included that (1) S1’s financial status was in doubt, where no audited financial report had been furnished since the first application under the GEP, only internal balance sheets and profit and loss accounts were submitted on the extension applications, and the latest bank account statement showed that S1 maintained a balance of low five-digit figure as at 30 November 2024, so that the liquidity and cash flow of S1 was in question; and (2) the qualification relied upon by the Applicant to justify her employment in Hong Kong was highly in doubt in light of the University’s confirmation that the degree certificate was bogus. 23. On 6 May 2025, the Applicant’s legal representatives made a personal data access request for the minutes of the 1st Decision, which were provided on 11 June 2025. The minutes provided were heavily redacted, and as later transpired some of the redaction was to black out references to the doubtful education qualification, the steps taken which gave rise to that doubt, and that the doubt was one of the grounds for the 1st Decision. 24. On 7 May 2025 the Applicant had submitted a request for reconsideration of the 1st Decision. The following day, ImmD requested any fresh information in relation to the reconsideration request. On 19 June 2025, further written submissions were made in relation to the reconsideration request, together with the audited financial report for the 2024/2025 fiscal year. The submissions addressed only the ground relating to the business of S1. 25. The Director considered that the new information provided did not constitute any fresh grounds raised which were relevant to the 1st Decision. Indeed, the Director in particular noted that the audited financial statement of S1 for the year ended 31 March 2025 contained the auditor’s note that “the Company’s current liabilities exceeded current assets and total assets by HKD 1.26M and HKD 1.25M respectively. This indicated that material uncertainty exists that may cast significant doubt on the Company’s ability to continue as a going concern”. 26. On 3 October 2025, the Director informed the Applicant that the reconsideration request was refused (i.e. the 2nd Decision). The letter stated that after careful consideration of all the information made available and circumstances of the case, no reason or justification could be found for reversing the previous decision, which still stood. 27. On 16 October 2025, the Applicant’s legal representatives made a personal data access request for the minutes of the 2nd Decision, which document was released on 4 November 2025. However, the version released again blacked out the reference to doubt as to qualification achievements in light of the confirmation that the degree certificate was bogus. 28. On 22 October 2025, the Applicant commenced these proceedings. As indicated, in compliance with my directions, the Director filed an Initial Response on 26 November 2025. Amongst the attachments were the unredacted minutes for both the 1st Decision and the 2nd Decision. 29. It is convenient to note here that the previously disclosed redacted versions of the minutes were redacted because (1) they were produced in response to personal data access requests and (2) in addition to a desire to avoid disclosure of third-party information, the view was apparently taken that disclosure of the matters relating to the bogus degree certificate was exempt pursuant to the provisions of section 58(1)(a) of the Personal Data (Privacy) Ordinance Cap 486 (“PDPO”), which provides that:
30. The unredacted minutes have now been provided in accordance with the Director’s duty of candour arising in these judicial review proceedings. C. Ground 1: Right to be Heard 31. There can be no dispute that the rule relating to procedural propriety encompasses the right of fairness. However, what fairness requires is dependent on the circumstances. 32. Mr Tsoi submitted that, in this case, fairness required the right to be heard, and he cited my decision in Lai Cheuk Yin v Cheung Wai Fong Margaret [2025] 4 HKLRD 497, in support of the propositions that (1) it would be rare that someone who is denied the opportunity to be heard would be held not to have been treated unfairly, but (2) there is no universal rule of natural justice, and what is fair depends on the particular case, where a procedure adopted can only be stigmatised as procedurally improper if there is a real risk of injustice. 33. Mr Tsoi submitted that the right to be heard was a valuable right, for the Applicant to know the “case against her” (his words) so that she might make meaningful representations on those points. 34. But, Mr Tsoi also fairly recognised that he had to grapple with another one of my decisions in Shahid Iqbal v Director of Immigration [2025] HKCFI 434 at §33, where I said:
35. Mr Tsoi sought to distinguish that case on the basis that it was not really concerned with, or focused on, the right to be heard. However, it seems to me that the alleged procedural impropriety in that case was a complaint amounting to a breach of some claimed right to be heard, flowing from something which it is said should have been but was not disclosed. That is the essence of the allegation of the Applicant in this case. The submission made for the Applicant was that had she known about the intended refusal of her application, and its basis, she could have requested to be heard before the refusal decision, and might have been able to provide further information to convince the Director. 36. But it can also be pointed out that, in the Shahid decision at §30, I stated that it is to be remembered – and it had been stated in numerous previous decisions – that 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 or her 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. Further, though the Director may from time to time seek further information than is originally provided in support of an application, the burden remains on the applicant to establish the relevant facts, and the Director is entitled to form a view, and to make his decision, on the materials provided. 37. Those various principles are equally apposite to this case. As I have canvassed above, the Applicant was legally represented, and she and her legal representatives were given ample opportunities to submit documents and information, to make representations, and to respond to requests for further information in support of the Extension Application. 38. Further, I agree with Ms Zhi’s submission that no benefit can be taken by the Applicant from the fact that the ImmD letters requesting further information also stated that no personal attendance or interview was required at that stage. Obviously, in proper context, those letters did not give rise to any proper expectation that there would ever need to be a personal attendance/interview, nor did the letters or anything else give rise to any requirement that an interview must be offered. 39. Ground 1 is not reasonably arguable with any realistic prospect of success. D. Ground 2: Failure to Give Reasons 40. It is trite that there is no general duty to give reasons for administrative decisions, but the nature or circumstances of an adjudication or decision might indicate the necessity for giving reasons. However, a reasons challenge will only succeed if the aggrieved party can satisfy the Court that he or she has genuinely been substantially prejudiced by the failure of the decision-maker to provide an adequately reasoned decision. 41. Adequacy of reasons will depend upon the particular circumstances of the case, but adequate reasons must address the substantial issues and show why the decision-maker has come to such a conclusion, and should not merely be a recitation of the statutory guidelines or framework. 42. Mr Tsoi submitted that the 1st Decision letter did not give any real reasons, but merely stated that consideration had been given to all available information and circumstances, as against the guidelines. I disagree. Not least with the benefit of legal assistance, and as against the history of the correspondence between the Applicant’s legal representatives and ImmD, the Applicant can have been under no illusion as to what matters were being considered, and that the view was taken that she failed to meet the necessary requirements for the extension of permission to stay. 43. In any event, the Applicant has been provided with the minutes leading to both the 1st Decision and the 2nd Decision – first in redacted form, but subsequently in unredacted form – and the Applicant has been able to formulate (and then refine) intended grounds of review arising from the circumstances of the case including those reasons. 44. With respect, I also reject Mr Tsoi’s suggestion that the case concerns “the personal right of the Applicant to remain in Hong Kong, which has an important human right at stake”. The Applicant does not have any right to remain in Hong Kong, unless and until granted permission to do so by the Director. Indeed, it was precisely to seek that permission that the Applicant made her applications under the GEP. 45. I see the argument that if the bogus certificate was a ground relied upon by the Director to support the 1st Decision, then it might have been expected to have been disclosed earlier than was the case. But the Applicant was informed of it later, and in any event was earlier told of a reason which in itself led to the refusal of her Extension Application. 46. In the circumstances, it is probably not necessary for me to resolve any dispute as to whether section 58(1)(a) of the PDPO was properly invoked in this case as a reason for originally redacting the references to the bogus certificate point. I would simply comment that I see some force in Mr Tsoi’s submission that the section is inapplicable, where it is perhaps difficult to see how disclosure of the bogus certificate point to the Applicant would be likely to prejudice either the prevention or detection of crime. If there was a crime, it had already been committed and had not been prevented, and it had been detected. 47. But I also see some force in Ms Zhi’s submission that the provision of the unredacted minutes cannot have been the first occasion on which the Applicant knew of the bogus certificate. Where she does not challenge the authenticity of the correspondence from the Controller of Examinations at the University of the Punjab confirming the certificate as bogus, and in the absence of any further material or argument adduced by her, I think she must be taken to have known that the certificate was bogus long before the Director informed her that he thought it was bogus and would act on that basis. It is also correct that the Applicant would unlikely be able to take any advantage from her own provision of the bogus certificate. 48. The hypothetical suggestion made in submission on behalf of the Applicant that she has been prejudiced because she might have made representations had she known of the allegation of the bogus certificate seems to me to go nowhere. At least by now, it is water under the bridge. At bottom, I see no prejudice to the Applicant even if there was any inadequacy in the reasoning given to her. 49. Ground 2 is not reasonably arguable with any realistic prospect of success. E. Delay / Extension of Time 50. It is trite that an application for leave to apply for judicial review must be made promptly and in any event within three months of the facts giving rise to the intended application, commonly the date of the impugned decision. 51. It is also trite that an applicant cannot get around or avoid the ordinary three-month long-stop period within which to bring an application for leave to apply for judicial review merely by asking the decision-maker to reconsider his decision. In this case, Mr Tsoi fairly acknowledged that the request for reconsideration and the 2nd Decision given on 3 October 2025 were not of a nature or substance as created a new decision, but rather merely led to confirmation of the 1st Decision. Therefore, he accepted that the Applicant’s application for leave to apply for judicial review was made out of time, and the delay should be counted from the date of the 1st Decision on 30 April 2025. Nevertheless, Mr Tsoi submitted that there was a proper basis for the grant of an extension of time. 52. It is settled that, in considering whether or not to grant an extension of time, the Court will take into account the circumstances including (1) the length of delay, (2) the explanation for the delay, (3) the merits of the application, and (4) potential prejudice to the proper administration if an extension of time is granted. It is also correct that the time limit does not have to be applied in a technical matter. Nevertheless, a disciplined approach to applications for judicial review out of time must be taken, so as to avoid the real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and should have been, or have been, acted upon. 53. In this case, Mr Tsoi submitted that application was made about six months after the impugned decision, so the length of delay was only approximately three months, and so not “the worst-case”, and it was explained in part by the application for reconsideration. But mostly, Mr Tsoi relied on what he said were the merits in the application, and the absence of any real prejudice were an extension of time to be granted. 54. Bearing in mind the nature of the impugned decision, I do not think the delay of a period roughly equivalent to the permitted long-stop period is insignificant, even if it is not the worst case. Further, I do not think the delay has been sufficiently explained, apart from by reference to the request for reconsideration which is accepted as not extending time. But, in light of my view that neither of the two intended grounds of review is reasonably arguable with any realistic prospect of success, this points strongly against there being good reason for an extension of time. In short, there is little point in extending time for an application which has insufficient merit to warrant the grant of leave. Further, it seems to me that there is some real prejudice in the potential for delay of decisions made in the immigration context, against the settled restrictive immigration policies and practices adopted in and appropriate to Hong Kong. I keep in mind that the Applicant’s limit of stay had expired on 16 November 2024. 55. Therefore, I would not grant the necessary extension of time. F. Application is Academic 56. As Mr Tsoi accepted during argument at the hearing that the question of whether the application for leave to apply for judicial review is academic is to an extent tied up with the intended grounds of review advanced. 57. The point arises from the bogus degree certificate, and is similar to one that I dealt with in the Shahid case at §39. There I accepted as an additional reason for dismissal of the application for leave to apply for judicial review that the application had become academic, in light of the results of the investigation conducted by the ImmD leading to the confirmation that the degree certificates originally relied upon by the applicant in that case were bogus. I saw no reason why the Director and this Court cannot – if necessary – place appropriate reliance on the letters received from the University of the Punjab in that regard. Indeed, I stated that there was no reason for the Director, nor for the Court, to cast any significant doubt on the authenticity of correspondence sent from the Controller of Examinations of the University of the Punjab direct to a senior officer of the ImmD in response to enquiries made. 58. The position is the same in this case, and I reject the attempt by Mr Tsoi to distinguish the case. He seeks to do so on the basis that in the Shahid case the applicants took the “far-fetched stance” that the letter from the University might not be real, whereas the Applicant does not limit her complaint to that stance but instead simply says that she ought to be afforded an opportunity to know about the issue and follow up on it. 59. However, I have already pointed out that the Applicant has known about the bogus certificate point for some time. She even sought and obtained the re-fixing of the oral leave application to permit her time to consider the various points (including that point) raised in the Initial Response. I accept Ms Zhi’s submission that the Applicant has had sufficient opportunity to make a meaningful response to the bogus certificate point in these proceedings. The suggestion was made that the Applicant would seek leave to file a supplemental affidavit, but in the end that was not pursued. The Applicant does not now actually suggest that the correspondence from the Control of Examinations might not be authentic. Nor does she assert any other basis upon which it would not be open to the Director to proceed on the basis that the certificate supplied by the Applicant in support of her application is in fact bogus. 60. Therefore, the application for leave to apply for judicial review is doomed to failure at least on the basis of the deception apparently exercised by the Applicant through her submission of a bogus educational document in support of the original GEP application and subsequent applications for extension of stay. G. Result 61. The application has been made out of time, and there is no good reason for an extension of time. The application is in any event academic. Further, the Applicant has failed to identify any reasonably arguable grounds of review with any realistic prospect of success. 62. In the circumstances, the Applicant’s application for leave to apply for judicial review is dismissed. 63. At the hearing, both Ms Zhi and Mr Tsoi accepted that the appropriate costs order to make would be for the costs to follow the event. In those circumstances, and in the exercise of my discretion as to costs, I order the Director’s costs to be paid by the Applicant, in an amount to be summarily assessed. I will conduct that summary assessment on the papers, permitting the Director to file a Statement of Costs for summary assessment by 6 February 2026, and the Applicant to file any List of Objections by 13 February 2026. Thereafter, I shall perform the summary assessment.
Mr Owen Tsoi, instructed by C.M. Chow & Company, for the applicant Ms Angel Zhi, Senior Government Counsel (Ag.), of the Department of Justice, for the putative respondent
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