GURUNG SAPANA v. DIRECTOR OF IMMIGRATION

HCAL 1490/2026

[2026] HKCFI 5021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1490 OF 2026

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D E C I S I O N

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A. Introduction

1.  By Form 86 dated 25 August 2026, the Applicant seeks leave to apply for judicial review so as to challenge the decision of the Director of Immigration made on 13 August 2026 (“Refusal Decision”), refusing the Applicant’s application for an extension of stay, and directing her to leave Hong Kong.

2.  The application is supported by an affirmation which essentially just exhibits the Refusal Decision, together with various factual underlying material which she had apparently provided for the Director’s consideration on her application for an extension of stay.

3.  Having considered the materials, I am satisfied that it is appropriate to deal with this application on paper.  This is my Decision.

B.  Background

4.  The Applicant has set out the relevant background broadly as follows.

5.  The Applicant is a citizen of Nepal.  She first entered Hong Kong in July 2022, as the dependant of her husband.  The husband, unfortunately, later died.

6.  The Applicant is the mother and sole caregiver of her son, who was born in Hong Kong on 28 February 2024.  The son enjoys right of abode in Hong Kong, and is a Hong Kong Permanent Resident (“HKPR”).

7.  The Applicant also has continuing family support in Hong Kong through her late husband’s brother and his family.

8.  Since her arrival, the Applicant has established and maintained substantial personal and family ties in Hong Kong.  Following the death of her husband, the Applicant continued to reside in Hong Kong and, before her permitted stay expired, duly applied for an extension of stay on her own merits.

9.  However, her application for extension of stay was refused by the Refusal Decision.

10.  The letter containing the Refusal Decision pointed out that the Applicant was previously approved to remain in the HKSAR as a dependant of her husband, but since there had been a substantial change in circumstances his sponsorship had been lost, meaning that the Applicant was no longer eligible to remain on dependant status.  Further, based on the available information, the Director did not find strong extenuating grounds justifying exceptional consideration in the Applicant’s case.

C.  Intended Grounds of Review

11.  Though not set out on the body of the Form 86, the exhibit to her affirmation identifies the Applicant’s intended grounds of review.  With her headings, and my summary of the grounds, they are as follows:

(1)  Ground 1: Failure to Consider Relevant Considerations

The Director failed to give proper and sufficient weight to (a) the highly material considerations arising from the Applicant’s family circumstances, (b) the best interests of her son, (c) her established family ties in Hong Kong, which are relevant to her ability to remain supported, integrated, and settled in Hong Kong while caring for her son, and (d) the seriousness of foreseeable harm that will be caused by separating her young child from herself.

(2)  Ground 2: Procedural Unfairness

The Refusal Decision letter did not provide sufficient reasons to help understand why the application was rejected, particularly given the humanitarian and family circumstances.  Nor was the Applicant given a fair opportunity to address any specific concerns before the Refusal Decision was made.

(3)  Ground 3: Irrationality/Wednesbury Unreasonableness

The Refusal Decision has the practical effect of separating a very young HKPR from his sole surviving parent and primary caregiver, which no reasonable decision-maker, properly directing itself to the relevant facts and consequences, could have made.  The Refusal Decision also fails to reflect the exceptional nature of the son’s circumstances, and fails to strike a rational balance between immigration control and the humanitarian and family factors present in the case.

D.  The Merits

12.  It is trite that, for an applicant to be granted leave to apply for judicial review, it is incumbent on the applicant to identify reasonably arguable ground or grounds of review with a realistic prospect of success.

13.  Some sympathy can be extended to the Applicant who finds herself in circumstances that her husband has died, leaving her to look after their young son.  However, none of the intended grounds of review has sufficient merit for the grant of leave to apply for judicial review.

14.  As to Ground 1, a challenge based on the weight given to circumstances is rarely strong, and in this case there is no reasonably arguable basis to suggest that the Director failed to take relevant considerations into account.  The Applicant’s application for an extension of time was expressly on her own merits, in the circumstances where her sponsor for a dependant visa had died.  It is settled law that the Director is not obliged to take humanitarian or compassionate factors into account.  Further, if the Director does do so, the weight to be given to those factors is a matter for the Director – and not for the Court, absent a public law basis for interference, such as irrationality.  In this case, the Applicant’s complaint is essentially that the Director should have reached a different decision on the application in light of the circumstances presented to him.

15.  As to Ground 2, it seems to me that the letter providing the Refusal Decision did provide sufficient reasons.  It pointed out that the Applicant could no longer remain on dependant status – which is, of course, why she made the application on her own merits – and that the information provided by the Applicant with her application did not establish strong extenuating grounds to justify exceptional consideration.  I reject the suggestion that the Applicant was thereby prevented from meaningful understanding of the basis of refusal.  Further, it is incumbent on an applicant to provide to the Director whatever materials the applicant considers is necessary and appropriate to seek to persuade the Director to grant the visa applied for.  There is no duty on the Director to seek further information, or to continue to do so if any request for information is made.  Therefore, insofar as the Applicant complains that she was not given a fair opportunity to address any specific concerns before the Refusal Decision was made, the complaint is misplaced.

16.  As to Ground 3, it is settled that an applicant seeking leave to apply on the basis of irrationality or Wednesbury unreasonableness faces a high threshold.  In this case, I see no reasonably arguable basis of crossing that threshold.  Insofar as this ground, or any of the others, is based upon the suggestion that the Refusal Decision necessarily separates the Applicant from her son, that is incorrect.  There is no reason why such a separation must take place, because the son is free to travel with and to remain cared for by the Applicant.

E.  Result

17.  The Applicant has failed to identify any reasonably arguable ground of review with any realistic prospect of success.  In the circumstances, I dismiss her application for leave.  I make no order as to costs.