THAPA TARA v. DIRECTOR OF IMMIGRATION

HCAL 347/2026

[2026] HKCFI 924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 347 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 6 February 2026, the Applicant – a female HKPR of Nepali nationality – seeks leave to apply for judicial review so as to challenge the decision of the Director of Immigration dated 10 December 2025 (“Impugned Decision”), by which the Director refused the request for reconsideration of his previous decisions refusing dependant visas to the Applicant’s two sons (“Sons”).

2.  The refusal was on the expressly stated basis that the information and representations provided in letters dated 16 June 2025, 26 September 2025, 16 October 2025 and 27 October 2025 did not serve to form any fresh ground pertinent to the previous refusal decisions, so that the decisions dated 12 January 2023 (“Original Decision”) previously conveyed still stand.

3.  I gave directions permitting the Director to file an Initial Response, and for the Applicant to file a Reply, on the basis that I would then consider how to deal with the application, potentially on paper.  The Initial Response was filed, signed by Ms Angel Zhi, Senior Government Counsel, and Mr Cliff Chan, Government Counsel.  The Applicant filed a short Reply and covering letter.

4.  Having considered the materials provided with the application, I am satisfied that it is appropriate to deal with it on paper.

5.  This is my Decision.

B.  The Application

6.  As identified on the Form 86, the intended challenge is to:

The refusal of my sons’ dependant visa applications as upheld by the reconsideration decision dated 10 December 2025.

7.  The relief sought is an order of certiorari to quash the Impugned Decision.

8.  However, the Form 86 itself does not identify any grounds on which that relief is sought.

9.  Further, the Applicant’s affirmation filed in support of the application for leave to apply for judicial review merely makes reference to attached Exhibits A and B – though it is fair to point out that Exhibit A appears to identify intended grounds of review being (1) Wednesbury unreasonableness/irrationality and (2) procedural unfairness.

10.  Exhibit A mostly comprises remittance records, but also has two typed pages which state:

(1)  Page 1

I have been the sole financial provider for my sons since 2015.  All their expenses, including education, housing, and daily needs, have been covered by me.  This is evidenced by the continuous remittance records from 2015 to 2025, which have already been submitted to the Respondent and are exhibited herein as Exhibit ‘A’, total page(s)-50

My decision to limit travel to Nepal was a direct and responsible result of my need to maintain my employment in Hong Kong and to conserve financial resources to ensure my sons’ present and future stability. The choice was between frequent visits and securing their long-term welfare; I chose the latter is what I believed to be my primary duty as a father [sic].

(2)  Page 2

1.  The Respondent’s decision was Wednesbury unreasonable and/or irrational in that he failed to give any or any adequate weight to the Applicant’s consistent financial support for the dependants (as evidenced by remittance records from 2015 to 2025), and disproportionately focused on physical absence, which was explained by the Applicant’s genuine employment commitments and prudent financial planning for the dependants’ long-term welfare.

2.  The Respondent acted procedurally unfair by failing to take into account relevant considerations, namely the substantive nature of the Applicant’s visits in 2019 and 2024, and effectively treating the prolonged processing period (2019-2024) as a reason for refusal.

11.  In addition to the 10 December 2025 letter giving the Impugned Decision, the Exhibit B contains a series of documents and photographs which were presumably those provided to the Director in support of the original dependant visa applications or reconsideration requests, together with representations.

12.  I also note from the materials that the Sons were born in Nepal on 8 March 2005 and 27 July 2009 respectively, so that they are now aged 21 and 17.

C.  The Background

13.  The Initial Response reveals significantly more background than was revealed by the Applicant in her application.

14.  The Applicant is a Nepalese national born in Nepal on 13 February 1982.  She married her first husband in Nepal on 10 March 2003, and the Sons were children of that marriage.  They are both Nepalese.

15.  The Applicant’s first marriage was dissolved on 20 March 2011.  She subsequently entered a second marriage in Nepal with a Hong Kong Permanent Resident (“HKPR”) husband on 26 May 2011.

16.  The Applicant was granted a dependant visa to join her second husband in Hong Kong on 7 July 2015, and subsequently acquired the right of abode herself to become a HKPR on 13 September 2022.  The Applicant claims to have separated from the second husband in October 2022.

17.  On 14 October 2022, the Immigration Department (“ImmD”) received applications for entry for residence in respect of the Sons as dependants of the Applicant.  The applications were refused on 12 January 2023, i.e. the Original Decision.  A summary of the reasons for refusal is that:

(1)  The mother/son relationship between the Applicant and the Sons was satisfied to be genuine. But, the dependant policy is not a policy for family reunion.

(2)  The Director was not satisfied that the Sons physically depended on the Applicant.  When the Applicant was granted dependant visa to join her second husband in Hong Kong on 7 July 2015, she let the Sons be taken care of by other family members in Nepal at a time when the Sons were about 10 and 6 years old.  Since arriving in Hong Kong in 2015, the Applicant travelled to Nepal only once, in 2019 for 27 days.  There was no evidence to support that the Applicant visited the Sons on that trip, as the photograph submitted did not support that.  No continuous and constant union was observed between the Applicant and the Sons, and it was not believed that their relationship was close.  Further, physical, emotional and financial needs will diminish over the course of time as the children get older, and it was the Applicant’s own choice to leave the Sons behind at that tender age.

(3)  The Director was not satisfied that the Sons emotionally depended on the Applicant.  There was insufficient proof of continuous and regular pattern of communications between them, whilst extracts of online communication records and screenshots of video calls submitted by the Applicant showed communication between the Applicant and her sibling, whilst chat between the Applicant and the Sons only first appeared in 2020.

(4)  The Director was not satisfied that the Sons financially depended on the Applicant, even though the Applicant would be able to support their living at a standard above subsistence level in Hong Kong.  None of the remittance slips submitted by the Applicant showed the Sons as beneficiaries, but instead showed the money remitted to the Applicant’s sibling.

(5)  The Sons were able-bodied adolescents, living with family members and taking Nepal as their habitual residence in the absence of the Applicant.

(6)  In conclusion, the Director was not satisfied that the Sons were physically, emotionally and financially dependent on the Applicant.  Further, no hardship would be caused to the Sons by the Original Decision.

18.  By letter dated 10 February 2023, the Applicant submitted a request for reconsideration (“1^st Reconsideration Request”).

19.  By letter dated 6 March 2023, the Applicant was informed that the 1^st Reconsideration Request was refused, and the Original Decision still stood because the information provided and representations made did not serve to form any fresh ground pertinent to the Original Decision.  A summary of the reasons for the refusal is that:

(1)  The communication proof submitted with the 1^st Reconsideration Request was similar in nature to that previously submitted and considered.  They were not self-evident or self-sufficient to establish a genuine dependency need between the Applicant and the Sons.

(2)  The other documents furnished were irrelevant to the ground of refusal.

(3)  The dependant policy is not a family reunion policy, and the Director was not satisfied that there was any strong compassionate, humanitarian or extenuating grounds to justify departure from the dependant policy.  No fresh ground pertinent to the Original Decision justified or warranted a reversal of the Original Decision.

20.  By solicitors’ letter dated 5 September 2023, the Applicant submitted a further request for reconsideration (“2^nd Reconsideration Request”).  The Applicant submitted that she did not apply for the Sons to join her earlier, because the second husband refused to sponsor the Sons in Hong Kong.  She also submitted further photos which showed that she visited the Sons once in 2019 and once in 2023.  Further, the Sons were said not to have been shown as beneficiaries in the remittance slips because they were not at the age to collect the money themselves.

21.  By letter dated 13 November 2023, the Applicant’s solicitors were informed that the 2^nd Reconsideration Request was refused and that the Original Decision still stood, because the information provided and representations made did not serve to form any fresh ground pertinent to the Original Decision.  A summary of the reasons for the refusal is that:

(1)  There was no sufficient physical dependency between the Applicant and the Sons.  According to the movement record, the Applicant only spent a maximum of 27 days and 2019 with the Sons after she first arrived in Hong Kong in 2015 up to the time of the first applications.  The second trip in 2023 was made only after the Original Decision.  The photos submitted were not sufficient to establish dependency need of the Sons on the Applicant, even if they demonstrated time together during the trip in 2023.

(2)  The remittance slips were not sufficient proof to demonstrate financial dependants.  There was no evidence to show that the money sent was used to support the Sons.  Even if it was, the Sons were considered not to be genuine dependants of the Applicant while their need could be financially resolved without the need to join the Applicant in Hong Kong.

(3)  The Applicant left the Sons come to Hong Kong in 2015 when they were aged 10 and 6.  There was insufficient proof of any dependency throughout the years before the first applications, and it was considered not irrational for the Sons to have become less dependant as they became older.  There was never any indication of any problem or dependency need from the Sons on the Applicant, whilst the Sons maintained their ordinary residence in their home country throughout the years.

(4)  The first applications were made only after a long stretch of time and shortly before the elder son reached the age of 18.

(5)  There was no fresh ground pertinent to the Original Decision, nor justification warranting a reversal of it.

22.  By solicitors’ letters dated 11 March 2024 and 9 April 2024, the Applicant made another request for reconsideration (“3^rd Reconsideration Request”).  The Applicant submitted that she did not return to Nepal before, because of her busywork, discouragement from her second husband and Covid-19.  She also submitted that it was hard to prove that monies remitted were spent on the Sons as no receipts were retained.

23.  Whilst that request was pending, the Sons were granted permission to come to Hong Kong as visitors on 6 August 2024, with permission to remain as visitors until 5 September 2024.

24.  By letter dated 16 August 2024, the Applicant’s solicitors were informed that the 3^rd Reconsideration Request was refused and that the Original Decision still stood, because the information provided and representations made did not serve to form any fresh ground pertinent to the Original Decision.  A summary of the reasons for the refusal is that:

(1)  At the time of the 3^rd Reconsideration Request, the elder son had already reached adulthood.  The Applicant left the Sons alone in Nepal at a young age, and it was not unreasonable to consider that any dependency needs of the Sons on the Applicant had diminished.

(2)  There was no fresh information provided in the 3^rd Reconsideration Request, and the representations made were all similar in nature and had already been carefully considered in the Original Decision and previous reconsideration requests.  It was not sufficient to establish the dependency need of the Sons on the Applicant.

(3)  There was no fresh ground pertinent to the Original Decision, nor justification warranting a reversal of it.

25.  By solicitors’ letter dated 2 January 2025, the Applicant submitted a further request for reconsideration (“4^th Reconsideration Request”).  The Applicant submitted remittance slips dated 2023 and photos taken during the Sons’ trip to Hong Kong in 2024.  She also submitted that the visit to the Sons in 2019 was a meaningful and quality one, and that the number of visits alone should not negate the connection between the Applicant and the Sons.

26.  By letter dated 29 May 2025, the Applicant’s solicitors were informed that the 4^th Reconsideration Request was refused and that the Original Decision still stood.  A summary of the reasons for refusal is that:

(1)  The 2023 remittance slips and the 2024 photos carried minimal weight, as they were materials after the Original Decision.  Other documents provided had already been previously submitted and considered.

(2)  The Applicant’s description of the 2019 visit was not considered sufficient in the circumstances to prove the Sons’ physical dependency on the Applicant, when she had left them at the ages of 10 and 6.  No dependant Visa application was made until 2022, and the Applicant only paid one visit to the Sons after leaving them.

(3)  Regarding emotional dependency, the documents and information submitted did not demonstrate regular contact between the Applicant and the Sons.  The earliest clear communication record between the Applicant and the elder son was in 2020.

(4)  Regarding financial dependency, the remittance slips submitted with the elder son as recipient dated 2023 was after the Original Decision, and carried little weight in demonstrating financial dependency on the Applicant.  There was no other evidence to support that previous remittance slips supplied were used to support the Sons when they were not the recipients.

(5)  Despite a genuine mother and son relationship, the Applicant had failed to demonstrate the dependency need of the Sons, when they had maintained their origin for many years without indication of any problem or dependency need required.

(6)  There was no fresh ground pertinent to the Original Decision, nor justification warranting a reversal of it.

27.  By consultants’ letters dated 16 June 2025 and 26 September 2025, and by letters from the Applicant herself dated 16 and 25 October 2025, the Applicant submitted yet another request for reconsideration (“5^th Reconsideration Request”), and submitted further supporting documents and submissions.  Amongst those documents was a newly furnished affidavit from the Applicant’s sister, declaring that the monies received from the Applicant were received on behalf of the Sons and were spent on study expense and daily maintenance of the Sons.

28.  By letter dated 10 December 2025, i.e. the Impugned Decision, the consultants were informed that the 5^th Reconsideration Request was refused and that the Original Decision still stood.  A summary of the reasons for refusal is that:

(1)  The trips made after the Original Decision failed to prove any physical dependency of the Sons on the Applicant at the time of the Original Decision, and it was not unreasonable to cast doubt on these trips as they could be made for various reasons.  Although it was claimed that the separation between the Applicant and the sons between 2019 and 2023 was due to Covid, the Applicant had left the Sons in 2015 and visited them only once in 2019.  Physical dependency was doubted.

(2)  Based on the communication records submitted, the Director was not satisfied that regular communication existed between the Applicant and the Sons over the years.

(3)  In light of the Applicant’s sister’s affidavit, it was considered that the previous remittance slips submitted might have proved the financial support from the Applicant to the Sons and the financial dependency of the Sons on the Applicant was not rebutted.

(4)  Nevertheless, having considered the whole of the circumstances of the case, it was not satisfied that there existed a genuine physical and emotional dependency.  The Applicant had left the Sons at their early age in 2015, and only submitted the first applications in 2022 when the Sons were 17 and 13 years old respectively.  It was not considered irrational that the older the sons became, the less dependent on the Applicant they might have been.  They had maintained their residence in Nepal for many years without indication of any problem or issue arising from a dependency need.  There was also no indication of any existing strong compassionate or humanitarian reasons or other special extenuating grounds that warrant exceptional consideration.

(5)  There was no fresh ground pertinent to the Original Decision justifying a reversal of it.

29.  Hence, the first applications were refused by the Original Decision in January 2023, and there have been five subsequent requests for reconsideration, each refused.  Now, by these proceedings and the Form 86 dated 6 February 2026, the Applicant seeks leave to challenge (only) the last of those decisions, i.e. the Impugned Decision.

C.  No Merits

30.  Lest the Applicant should think otherwise, the Court does not decide whether or not a dependent visa should be granted.  That is a decision for the Director.  Nor does the Court act in an appellate capacity from decisions of the Director.  Rather, the Court exercising its judicial review jurisdiction is concerned with the integrity of the decision-making process.

31.  Therefore, to obtain the grant of leave to apply for judicial review an applicant must identify reasonably arguable public law grounds of review with a reasonable prospect of success.  As a result, it is a mandatory requirement of the Rules of the High Court Order 53 rule 3(2) that an applicant seeking leave to apply for judicial review must identify on the Form 86 both the relief sought and the grounds upon which that relief is sought.

32.  The relevant grounds to be identified must be alleged public law errors made by the decision-maker in reaching the impugned decision.  Merely using labels such as “Wednesbury unreasonable” or “procedural unfairness” does not of itself identify public law grounds.  Something more specific is required.  As has been said frequently, it is not for the Court to seek to identify for itself potential public law errors made by a decision-maker.  In short, a failure to identify any proper intended public law grounds of review is fatal to the application.

33.  In any event, on the first stated intended ground of review, Wednesbury unreasonableness or irrationality, this is a high hurdle to surmount, not least where the burden was on the visa applicants (i.e. the Sons) and sponsor (i.e. the Applicant) to prove genuine dependency, and not for the Director to show that the application falls outside the policy.  I accept Ms Zhi’s summary submission that the Applicant simply failed to adduce sufficient and reliable evidence to persuade the Director that the Sons have a genuine physical and emotional dependency need on the Applicant (even if, late in the day, earlier financial dependency was probably established). Essentially, the Applicant makes a merits challenge to the decision, arguing that the Director ought to have given different weight to the considerations, that he gave inadequate weight to the Applicant’s consistent financial support to the Sons and disproportionately focused on the physical absence of the Applicant.  However, it is trite that the weighing exercise is a matter for the Director, not for the Court (unless the high hurdle of public law unreasonableness or irrationality can be established).

34.  In this case, there is no reasonably arguable Wednesbury unreasonableness or irrationality.

35.  As to the second stated intended ground of review, procedural unreasonableness, the Applicant suggests that there was unfairness in the Director failing to take into account the substantive nature of the Applicant’s visits to or with the Sons in 2019 or 2024, by treating the prolonged periods without visit as a reason for refusal.  However, this is again in essence a challenge to the weight given by the Director to the particular factors.  It is clear that the Applicant was given full opportunity to provide information and documents in support of the visa applications, and that the Director took all those matters into account in the weighing exercise.  On the overall or holistic review of the whole circumstances of the case, the Director was not satisfied as to the genuine dependency needs of the Sons on the Applicant.

36.  There is no reasonably arguable procedural unfairness which occurred in that decision-making process.

37.  In this case, there is also the clear problem with the timing of the application.  Applications for leave to apply for judicial review must be made promptly and in any event within three months of the grounds arising, unless good reason is shown for an extension of time.

38.  Though the Impugned Decision itself is dated 10 December 2025, it is clear from the decision itself that it relates to previous decisions dated as long ago as 12 January 2023, i.e. the Original Decision – more than 3 years before the Form 86 was issued in these proceedings.  Since then, as the background chronology identifies, there have been five further decisions, each of which upheld the Original Decision – but only the last of which was mentioned by the Applicant in materials filed for these proceedings.

39.  In this case, the Impugned Decision identifies that nothing was provided to serve any fresh ground pertinent to the previous refusal decisions, and it is settled that merely seeking reconsideration of a previously made decision does not of itself extend the time for any intended judicial review challenge.

40.  Indeed, it is trite that an applicant for judicial review cannot get around or avoid the time requirement by asking the decision-maker to reconsider the original decision, or by putting forward different arguments or providing additional information.  As this case identifies, the Director’s subsequent reconsiderations were by nature a review of the Original Decision.  I do not accept the Applicant’s suggestion that because a different reference number was assigned to each reconsideration request, that means that it can be considered a stand-alone reviewable decision.  (In passing, I also see no reason to grant the Applicant’s request for there to be any hearing or other form of determination on this point as a preliminary issue).

41.  Further on this point, it is worth keeping firmly in mind that the burden is on an applicant for a visa to provide whatever information and documents are necessary as are said to justify the grant of the visa under the applicable policy.  Applications for visas are not intended to be some form of rolling process, with partial then further provision of information or documents over one or a series of requests for reconsideration.

D.  Result

42.  In the absence of any reasonably arguable grounds of review with any realistic prospect of success, the Applicant’s application for leave to apply for judicial review is refused.  I would also dismiss the application on the basis that it is significantly out of time, with no good reason for an extension of time.

43.  I make no order as to costs.