GAUCHAN SURAT v. DIRECTOR OF IMMIGRATION

HCAL 662/2025

[2025] HKCFI 1167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 662 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 14 March 2025, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Director of Immigration dated 15 November 2024 (“Decision”). The Form 86 asks that the Decision “be quashed of Improper procedure”.

2.  The Decision related to applications for dependant visas for the Applicant’s son and daughter. In the Applicant’s affirmation filed in support of the Form 86, the Applicant stated (sic):

The Director of Immigration failed to consider our relationship despite our submission of the supporting materials and information in time to time. The Director’s decision is Wednesbury unreasonableness. Enclosed herewith available documents and information for your kind consideration. Therefore, I would request for review the Director’s decision. Please see the attached “Exhibit-A”. Total pages 62 only and attachment.

3.  The attached documents includes a document headed ‘Brief Facts’, which states (sic):

1.  It is submitted that I have been submitting My children’s dependant visa application since 2017.

2.  We have submitted all the required material and information for the consideration of Director of Immigration.

3.  The Director of Immigration failed to observe our relationship despite the submission of the supporting documents and information and subsequently The Director of Immigration refused my children’s dependant visa application on 22/11/2017, 12/04/2019, 06/11/2019 12/07/2023 and 15/11/2024. Enclosed herewith said refusal letters for your kind consideration.

4.  It is submitted that due to the fresh applications and Re-consideration request, I could not make the Judicial Review application within time bar.

5.  The Director of Immigration failed to consider our genuine relationship between me and my children.

6.  My children came to Hong Kong in 2023, and we have conducted DNA testing report, and we have submitted to the Director of Immigration.

7.  After submitting the DNA Testing report, the Director of Immigration again refused my children’s dependant visa applications by stating insufficient reasonable of genuine relationship between us.

8.  In light of the above The Director’s refusal Decision is Wednesbury unreasonableness, racial discrimination and bias. Therefore, I would pray to the Honourable Court for Justice.

4.  Also exhibited was an index listing the further attached documents, which included: the various letters from the Director; letters issued by the Applicant’s representative Lakshmi & Laxmi (“L&L”) dated 18 May 2023 and 8 June 2023; letter from the Applicant to the Director dated 18 July 2023; travel records of the Applicant and the children; birth certificate of the children; relation certificate between the Applicant and his children; remittance slips from 11 June 2021 to 15 August 2023; DNA testing report; employment contract of the Applicant dated 18 July 2016; family photos with children; and the Applicant’s latest three months bank statements.

5.  From those documents, it can be seen that the relevant two children are a son born on 25 June 2002 (“Son”), and a daughter born on 23 June 2005 (“Daughter”). Therefore, the Son is now approaching 23 years of age, and the Daughter is now approaching 20 years of age.

6.  Having considered the materials, I am satisfied that it is appropriate to deal with this case on the papers. This is my decision.

B.  Further Background

7.  As the above makes clear, the impugned Decision dated 15 November 2024 was actually the last in a long line of decisions beginning seven years earlier on 22 November 2017.

8.  The decision letter dated 22 November 2017 (“1^st Refusal”) was addressed to the Applicant as Sponsor, referred to the entry dependant applications of the Son and Daughter, and stated:

After careful consideration of all the available information and circumstances of the cases, we are not satisfied that there is reasonable proof of a genuine relationship between the applicants and you. We are also not satisfied that the applicants are your dependant and that they are coming to join you as your dependants. In addition, there exist no strong compassionate or humanitarian reasons or other special extenuating grounds warranting a departure from the prevailing policy. The above applications for entry for residence are therefore refused.

9.  The decision letter dated 12 April 2019 (“2^nd Refusal”) was addressed to a Ms Gurung Roshni as Sponsor, and referred to applications of the Son and Daughter for entry to take up residence as Ms Gurung’s dependants. The decision was to refuse the applications on the basis that the Director was not satisfied that there was reasonable proof of genuine relationship between the applicants and the sponsor, nor that the applicants were her dependants coming to Hong Kong to join her as her dependants.

10.  No explanation is offered in the materials filed by the Applicant for the present leave application to explain why Ms Gurung might have had a particular relationship with the Son and Daughter, or why they might have been her dependants. She is not the person apparently named as the mother on the birth certification documents of the Son and Daughter produced by the Applicant in the materials for these proceedings.

11.  The decision letter dated 6 November 2020 (“3^rd Refusal”) was addressed to the Applicant as Sponsor, and identified refusal of the applications for the reasons that there was insufficient reasonable proof of genuine relationship between the Applicant and the Son and Daughter, and that the Director was not satisfied that they were genuine dependants of the Applicant.

12.  The decision letter dated 12 July 2023 (“4^th Refusal”) was addressed to the Applicant as Sponsor, and again refused dependant visa applications on the basis that, having considered all relevant circumstances and available information, the applications were outside the prevailing policy and there existed no strong compassionate or humanitarian reasons or other special extenuating grounds warranting a departure from the prevailing policy.

13.  The decision letter dated 9 April 2024 (“5^th Refusal”) was addressed to the Applicant as Sponsor, again refused an entry dependant visa application – but this time apparently only in relation to the Daughter. There is no indication from the papers that a similar renewed application was made in relation to the Son. The basis of refusal was the same, namely that there was insufficient reasonable proof of a genuine relationship between the Applicant and the Daughter, and that the Daughter is a genuine dependant of the Applicant who is physically and emotionally depending on him.

14.  The decision letter dated 15 November 2024 (i.e. the impugned Decision) (“6^th Refusal”) was addressed to the Applicant as Sponsor, and was actually the decision made in relation to the request for reconsideration of the decision made as regards the Daughter only on 9 April 2024. The letter stated that the request was refused as the information provided and representation made by the Applicant did not serve to form any fresh ground for reconsideration of the prior refusal, which still stood.

15.  The DNA Testing Report, obtained from a company in Hong Kong, is dated 16 May 2023. In summary it states that the probabilities of the Applicant’s paternity of the Son and the Daughter are 99.9998% and 99.9999% respectively. I note that, as at the date of the report, the Son and the Daughter were aged roughly one month shy of 21 and 18 respectively.

16.  Though it is not clear from the way in which the papers have been presented with this application, I assume that the DNA Testing Report was made available to the Director prior to the making of the 4^th Refusal on 12 July 2023. That would seem to fit with the letter from L&L to the Chief Immigration Officer dated 8 June 2023, stating that they were still in the course of adducing relevant documents and information from their client (i.e. the Applicant) and seeking an extension of a further two weeks from the date of the letter for the submission of documents.

C.  The Son’s Position is Irrelevant

17.  On the basis of the materials presented in this application, and the impugned decision identified for challenge by the Applicant, it seems I am concerned only with the decision of the Director refusing to grant a dependant visa to the Daughter – in the 5^th Refusal and/or the 6^th Refusal.

18.  That may not be surprising, where by 2023 the Son was already 21 years of age. Even then, the Daughter was about to become 18.

D.  Delay

19.  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 date when the grounds for the application first arose, ordinarily identified by reference to the date of the impugned decision. It is also trite that the time for bringing such an application is not extended merely because the applicant has made a request for the decision-maker to reconsider the original decision. In so far as the Applicant has suggested otherwise, he is incorrect.

20.  If an application is out of time, the applicant needs to demonstrate a good reason for the Court to exercise its discretion to grant an extension of time. As part of a multi-faceted consideration, the Court will take into account matters including the length of the delay, the explanation for the delay, the merits of the application, any prejudice, and whether any point of general public importance is raised.

21.  In this case, the latest substantive decision refusing to grant a dependant visa to the Daughter was made on 12 April 2024 (i.e. the 5^th Refusal). Even ignoring the requirement to make an application promptly (i.e. within a period less than three months), the long stop three-month period for making an application to challenge the 5^th Refusal expired on 11 July 2024. These proceedings were commenced only on 14 March 2025, namely 11 months after the 5^th Refusal, and 8 months after the expiry of the long stop period within which any challenge to that decision ought to have been made. Not least against the chronology of previous applications, this was a significant delay. The offered explanation that the delay was caused by making fresh applications and reconsideration requests does not seem to me to justify the delay.

22.  Even if time is said to run from the 6^th Refusal/Decision on 15 November 2024 (though I disagree), the Application was made only on the last day of a three-month period starting from that date – but without clear reference to the fact that the 6^th Refusal/Decision was in reality only the decision made on the reconsideration request.

23.  In particular against the long history of refused applications for dependant visas, going back as long as seven years to 2017, I think there was prejudice to the good administration of justice caused by the delay. Obviously, this case turned on its own individual facts and no point of general public importance arises.

24.  As will be seen below, nor is there sufficient merit as might be a weighty contribution to the consideration of granting an extension of time.

25.  In conclusion, I see no basis upon which I would exercise my discretion to extend time for making this application.

26.  Of itself, that is fatal to the application.

E.  Whether Sufficient Merit

27.  In any event, I see no sufficient merit as would justify the grant of leave to apply for judicial review.

28.  First, it is trite that if leave is to be granted the applicant for leave to apply for judicial review is required to identify public law grounds of review which are reasonably arguable with a realistic prospect of success. The mere incantation of the phrases “Wednesbury unreasonableness” and “racial discrimination and bias”, without more, do not satisfy the requirement properly to identify public law grounds for review with verification of the underlying facts on affidavit. It is not for the Court to seek to devise potential public law grounds.

29.  Secondly, it is settled that the dependant visa policy is not a policy of family reunion. The applicant needs to demonstrate the necessary genuine relationship and the existence of the dependency. The Court exercising its judicial review jurisdiction does not sit as an appellate court, nor retake the decision on the merits of the underlying application. Rather, the Court is concerned with the integrity of the decision-making process.

30.  Thirdly, in any event, as already stated, the Sponsor and applicant of an application for a dependant visa bear the burden of satisfying the Director of more than just the fact that there is a genuine relationship between the Sponsor and the applicant for whom the visa is sought. This is so, even if by the time of the material impugned decisions the Director was properly satisfied as to the genuine relationship. It also has to be demonstrated that there is a relationship of dependency. Looking at the position of the Daughter, who was already aged almost 18 as at the date of the 5^th Refusal (and approaching 19 at the time of the impugned 6^th Refusal/Decision), I do not think it can be assumed or is reasonably arguable that there was any irrationality or Wednesbury unreasonableness in refusing to grant the dependant visa. Nor has the Applicant identified any proper basis for any reasonably arguable racial discrimination or bias.

F.  Result

31.  This application is brought out of time, and I see no good reason to exercise my discretion to extend time. In any event, the Applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success.

32.  Therefore, the Applicant’s application for leave to apply for judicial review is dismissed. I make no order as to costs.

G.  Postscript

33.  Lastly, I would point out that this is yet another case where an applicant has given as his address for service on the Form 86, and as his residential address on his affirmation, the office address of the ‘Litigation and Immigration Consultants’ L&L. Not least because the address given is an office address, and because disparate others have given that address, I do not think that address is the Applicant’s residential address. As such, the Applicant’s affirmation has been filed in breach of Rules of the High Court (“RHC”) Order 41 rule 1(4).

34.  Though I have not relied on this breach in my determination of the present application, it would be open to the Court to act on the view that a non-compliant affirmation cannot satisfy the mandatory requirement of RHC Order 53 rule 3(2)(b) that an application for leave to apply for judicial review must be made by filing, amongst other things, an affidavit or affirmation verifying the facts relied on.