LILIK SUNARSIH v. DIRECTOR OF IMMIGRATION

HCAL 669/2025

[2025] HKCFI 2664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 669 OF 2025

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D E C I S I O N

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A.  Introduction

1.  Sometimes, sympathy and empathy point strongly in one direction, but the application of legal principle points another way. This is, in my view, one such case.

2.  By her Form 86 dated 14 March 2025 (filed on 17 March 2025), the Applicant seeks leave to apply for judicial review so as to challenge two decisions (together “Decisions”) made by the Director of Immigration (“Director”):

(1)  the Director’s decision dated 21 January 2025, refusing the Applicant’s application for extension of stay without sponsorship (“1^st Decision”); and

(2)  the Director’s decision dated 6 March 2025, refusing the Applicant’s application for reconsideration of the 1^st Decision (“2^nd Decision”).

3.  By my directions given on 19 March 2025, I gave leave to the Putative Respondent to file an Initial Response to the application, and leave to the Applicant to file a Reply to that Initial Response.

4.  The Initial Response dated 10 April 2025 was served by Ms Angie Liu, Government Counsel, of the Department of Justice, for the Director, arguing that leave should be refused on various bases. The Applicant filed her Reply to the Initial Response on 17 June 2025.

5.  The Applicant also requested an oral hearing of her application for leave to apply for judicial review, which was originally fixed for 8 May 2025. On 11 April 2025, the Applicant sent a letter to the Court to seek an adjournment of the hearing for a period of two months to allow sufficient time for her legal aid application to be processed and for her to secure proper legal representation. By my further directions dated 15 April 2025, I re-fixed the hearing for 19 June 2025.

6.  The Director of Legal Aid (“DLA”) refused the Applicant’s legal aid application on 20 May 2025. According to a letter dated 2 June 2025 from the DLA to the Applicant, the hearing of the Applicant’s appeal against the decision of DLA was fixed for 1 August 2025.

7.  By letter dated 2 June 2025, the Applicant requested a further adjournment of the hearing of her judicial review application for a period of four months. On 3 June 2025, I refused the Applicant’s application for adjournment and directed the hearing fixed for 19 June 2025 to go ahead.

8.  At the hearing, the Applicant appeared in person. She was content largely to rely on those matters already canvassed by her in writing, though she made brief oral submissions (through an interpreter). The Director was represented by Ms Liu, who also largely relied on those matters already canvassed by her writing, with additional oral submissions.

9.  At the end of the hearing, I reserved my decision to be considered in light of and with the benefit of the materials previously filed by the parties and the oral submissions made by the Applicant and Ms Liu.

10.  This is my Decision.

B.  Factual Background

B.1  The Applicant’s background, marriage and the dependant visa application in 2015

11.  I can set out the following background matters, much of which has been helpfully summarised in the Initial Response and the Applicant’s evidence.

12.  The Applicant is a national of Indonesia. She was born in June 1983. She has no children.

13.  In 2002 – at the age of 19 – she entered Hong Kong to take up employment as a foreign domestic helper (“FDH”). According to the retrievable record of the Immigration Department (“ImmD”), her applications for working as a FDH were approved in August 2012, November 2012 and October 2014.

14.  In the meantime, in about 2007, the Applicant met a Mr Mok Yuk Lun (“Husband”), who was a Hong Kong permanent resident (“HKPR”), in Hong Kong, and who she later married. The Applicant says that, despite the near 22-year age difference, she was captivated by his warmth, kindness and genuine love, providing her with a sense of safety and cherished companionship. I do not think it can be in any way disputed that this was a genuine ‘love match’. The relationship blossomed over nearly 8 years and, on 18 November 2015, they married.

15.  On 25 November 2015, the Applicant submitted to ImmD her application for entry for residence as the dependant of the Husband as sponsor in Hong Kong. On the same day, she submitted her application for an extension of stay in Hong Kong as the dependant of the Husband as her limit of stay as a FDH was only granted until 23 November 2015.

16.  Between 30 November 2015 and 17 February 2016, to further process the Applicant’s applications, ImmD requested supplementary documents from the Applicant, who provided part of the requested documents.

17.  The Applicant says that in early 2016, when she and the Husband attended ImmD, they were told by an immigration officer that – because the Husband was bankrupt – it would be better to wait and apply for dependant status after the expiration of the bankruptcy period in about four years’ time. Though ImmD has no record of any such advice being given by an immigration officer, it does not seem to me to be at all unlikely that such advice was given in light of the usual approach taken on dependant visa applications where it is expected that the sponsor will be able to demonstrate the ability to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in the HKSAR. I accept the Applicant’s description of why the dependant visa application was not pursued at that time, and why further documents were therefore not provided.

18.  Instead, on 3 March 2016, ImmD received a written representation from the Applicant, who explained that she had a new employer and would like to apply to work as a FDH again, for withdrawal of the applications. On the same day, ImmD issued a Notice of Cancellation of Application to the Applicant, who acknowledged receipt of it.

19.  The Applicant’s applications for visa/extension of stay for employment as a FDH were respectively approved in April 2016, April 2017 and April 2018. She was last permitted to remain in Hong Kong as a FDH until 25 April 2020, or two weeks after the termination of contract, whichever was earlier.

B.2  The Applicant’s dependant visa application in 2020

20.  By early 2020, the Husband had been discharged from bankruptcy. It seems that he had originally been made bankrupt because he had suffered cancer and had borrowed money from a finance company to pay for medical expenses. However, he had not recovered enough to resume his prior ordinary occupation as a golf coach, and was unable to repay the loan.

21.  It might be noted here that at least during the bankruptcy period and again later, when she could work having a dependant visa, the Applicant in effect financially supported the Husband, who was to a large extent dependant on her (less so the other way round). She contributed substantially on a financial basis, and by way of care and other emotional support (not least as a result of the Husband’s illness). I also accept that the Applicant had, and still maintains, a good relationship with both of the Husband’s sisters. Indeed, the Husband’s family members support the Applicant’s present position and her desire to stay in Hong Kong. The Applicant is fluent in Cantonese.

22.  On 31 March 2020, the Applicant submitted her application to ImmD for an extension of stay and change of immigration status as the dependant of the Husband as sponsor on the basis of her matrimonial relationship.

23.  Between 5 May 2020 and 5 June 2020, to further process the Applicant’s application, ImmD requested supplementary documents from the Applicant, who provided part of the requested documents.

24.  As shown in ImmD’s Internal Minute M.1 dated 30 June 2020, the Director was not satisfied that the Husband was able to support the Applicant’s maintenance in Hong Kong with a standard well above the subsistence level. The Director refused the application and informed the Applicant by letter on 3 July 2020. The Applicant was required to leave Hong Kong on or before 17 July 2020.

25.  ImmD then received a letter dated 9 July 2020 from Lau, Wong & Chan (“LWC”), the Applicant’s then solicitors, requesting ImmD to provide reasons for refusal of the application and extend the Applicant’s limit of stay in Hong Kong for a reasonable period for obtaining legal advice for making a request for reconsideration of the application.

26.  As shown in ImmD’s Internal Minute M.2 dated 10 July 2020, the Director noted that LWC requested for reasons why the Applicant and the Sponsor were considered unable to comply with the Dependant Policy in the future. The Director considered that future circumstances were not available information and circumstances. As the Director considered that there were no strong grounds justifying the continued presence of the Applicant in Hong Kong, the Director maintained the view that the Applicant should leave Hong Kong on or before 17 July 2020.

27.  On 10 July 2020, ImmD issued a reply to LWC elaborating the reasons for refusal, stating in particular that the Director considered that the Husband was unable to support the Applicant’s living standard well above the subsistence level.

B.3   Request for reconsideration and application for extension of stay

28.  On 16 July 2020, LWC submitted a request for reconsideration of the Director’s decision dated 3 July 2020.

29.  On 7 September 2020, ImmD sent a letter to LWC requesting, among other things, an explanation of the Husband’s coaching engagements, which was received on 21 September 2020 with supplementary documents provided.

30.  As shown in the Internal Minute M.1 dated 28 October 2020, after revisiting the case with all available information and the considerations (as set out in §8 of that minute), the Director considered that as there was a substantial change in circumstances of the Sponsor’s financial situation, the decision dated 3 July 2020 should be reversed to grant an extension of stay to the Applicant on dependant status for 12 months.

31.  By letter dated 2 November 2020, ImmD notified the Applicant of the reversal of the Director’s decision dated 3 July 2020. On 6 November 2020, the visa for change of status as dependant was issued to the Applicant, who was permitted to stay in Hong Kong as the dependant of the Husband with a limit of stay until 1 November 2021.

32.  On 20 October 2021, an extension of stay was granted to the Applicant on the same status with the sponsorship of the Husband with a limit of stay until 1 November 2024.

B.4  The applicant’s application for extension of stay without sponsorship

33.  Unfortunately, the Husband’s battle with cancer continued, and he became terminally ill. Throughout the period, he was cared for by the Applicant.

34.  On 15 May 2024, the Husband passed away.

35.  On 2 October 2024, the Applicant submitted to ImmD an application for an extension of stay in Hong Kong on her own merits without sponsorship (“Current Application”) by the letter dated 26 September 2024 from her then solicitors, K K Lai & Co. (“KKL”).

36.  On 9 October 2024, to further process the Current Application, ImmD issued a letter to KKL requesting the Applicant to provide supplementary documents, in particular, the Application for Extension of Stay and the Statement of the Applicant’s Family Background.

37.  Between 21 October 2024 and 8 November 2024, there were several rounds of KKL’s request for extension of time for provision of documents and extension of the Applicant’s limit of stay and ImmD’s follow-up on these matters.

38.  On 15 November 2024, ImmD received a letter dated 13 November 2024 from KKL, enclosing part of the requested documents and requesting an extension of the Applicant’s limit of stay for 3 months. KKL enquired if Mr Chiu Ka Kin (transliteration) (趙家健), the Applicant’s employer, could become the Applicant’s sponsor. In the Applicant’s written statement attached to KKL’s letter, the Applicant provided reasons why the Current Application should be approved, and mentioned the difficulties of returning to Indonesia.

39.  Between 21 November 2024 and 27 November 2024, there was correspondence between ImmD and KKL regarding the former’s request for provision of outstanding supplementary documents and the latter’s request for extension of time for provision of them.

40.  On 23 December 2024, KKL sent a letter dated 19 December 2024 to ImmD, enclosing the requested documents and naming the Husband’s nephew, Mr Law Yuk Wing (“Mr Law”), a HKPR, as the new sponsor of the Applicant.

41.  According to the Director’s Internal Minute M.1 dated 21 January 2025, regarding the 1^st Decision, the Director was not satisfied that the Applicant was able to meet the eligibility criteria under the Dependant Policy for the following reasons:

(1)  the absence of sponsorship after the death of the husband and without any other eligible sponsors provided has rendered the Current Application falling outside the prevailing Dependant Policy;

(2)  even though there are other local persons in Hong Kong who are willing to vouch support to the Applicant, they are not eligible sponsors;

(3)  the Applicant is an able-bodied person who could earn a living herself;

(4)  there are no extenuating grounds warranting an exceptional consideration for departure from the existing Dependant Policy;

(5)  no hardship would be put on the Applicant if she returns to her home country; and

(6)  even though the Applicant claimed that she needed to take of her elder mother-in-law, the latter was under intensive care at a care home, and there was no indication either that the Applicant was the only caregiver or that the Applicant was the sole responsible person to offer financial assistance.

42.  By letter dated 21 January 2025, ImmD informed the Applicant of the 1^st Decision, and required her to leave Hong Kong on or before 4 February 2025.

B.5  Request for reconsideration of the 1^st Decision (2^nd Decision)

43.  On 28 January 2025, LWC, acting for the Applicant, sent a letter to ImmD to request for reconsideration of the 1^st Decision (“Request”).

44.  Between 3 February 2025 and 26 February 2025, there was correspondence between ImmD and LWC regarding the former’s request for supporting documents and the latter’s submissions of written representations and the requested documents on behalf of the Applicant.

45.  The reasons for coming to the 2^nd Decision are set out in the Director’s Internal Minute M.1 dated 5 March 2025, in which the Director:

(1)  considered that there was no immigration policy to allow a former dependant to continue residence in Hong Kong after the loss of an eligible sponsorship, and the Request was outside the prevailing immigration policy;

(2)  observed that the Applicant had put forth self-sustainability and local connection in Hong Kong as extenuating grounds when making the Request, however, the Director considered that the information did not constitute new grounds warranting a decision departing from the prevailing immigration policy; and

(3)  was of the view that the Applicant did not present fresh information regarding her own situation that might stand as compassionate grounds, and her factual background and all relevant matters were considered in the previous assessment of the Current Application.

46.  By letter dated 6 March 2025, ImmD informed the Applicant that the 1^st Decision still stands, i.e. the 2^nd Decision, and required the Applicant to attend ImmD’s office on or before 13 March 2025 for departure arrangements.

47.  Between 10 March 2025 and 14 March 2025, LWC, on behalf of the Applicant, requested ImmD for deferral of the Applicant’s departure from Hong Kong and extension of stay on the ground of the Applicant’s application for legal aid.

48.  The current immigration status of the Applicant is that since 2 November 2024, she has no valid limit of stay in Hong Kong.

C.  Grounds of Review

49.  As set out in her affirmation dated 14 March 2025 (filed on 17 March 2025), the Applicant has raised three intended Grounds of review to challenge the Director’s Decisions. In a way with which I agree, Ms Liu has summarised the Grounds as follows:

(1)  Ground 1: Compassionate and Humanitarian Ground.

(2)  Ground 2: The Decisions were wrong in principle.

(3)  Ground 3: The Dependant Visa Policy was unreasonable / unlawful fettering of discretion.

50.  I can deal with each of the Grounds in turn, though there is some degree of overlap between them.

D.  Legal Context

51.  Before doing so, I can usefully set out some relevant legal principles relating to visa applications and extensions of stay, which were addressed as follows in my recent decisions in Faisal Muhammad v Director of Immigration [2024] HKCFI 2579 at §§41-46 and Yolmo Deechen Lamu v Director of Immigration [2024] HKCFI 3438 at §§40-45. Those principles are also applicable to the present case.

52.  It is settled – see, for example, BI v Director of Immigration [2016] HKCA 89 at §92 – that:

(1)  It is appropriate and necessary for the maintenance of its suitability for Hong Kong to adopt restrictive immigration policies and practices.

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

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

(4)  If the Director fails to take 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.

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

(6)  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.

(7)  An important consideration in the application of the principle of legality in the Hong Kong immigration context is the reservation in section 11 of the Hong Kong Bill of Rights Ordinance, providing that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong.

53.  It is also trite, and no authority is needed for the proposition, that 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.

54.  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). But the Court retains powers to intervene where there was unsatisfactory treatment of facts by the decision-maker, such as where the finding of fact was irrational or perverse, or unsupported by evidence, or was plainly untenable, or where irrelevant factors were taken into consideration or relevant factors were not considered or were misunderstood.

55.  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.

56.  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. 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.

57.  It is also settled that each application for such a visa must depend on its own facts. It is a wrong premise to assume that the previous grant of a visa creates some sort of precedent binding on the Director in relation to a subsequent application.

E.  Ground 1: Compassionate and Humanitarian Ground

58.  The gist of the Applicant’s complaint under Ground 1 is that there are exceptional, humanitarian and compassionate grounds to justify an extension of her stay in Hong Kong on her own merits because of the following personal circumstances (“Personal Circumstances”):

(1)  she had deep ties and commitment to Hong Kong;

(2)  she is a law-abiding resident;

(3)  she provided love and care to the sponsor Husband who was terminally ill;

(4)  she was bereaving the tragic loss of the Husband; and

(5)  she has strong ties with her sister-in-law.

59.  In the Reply, the Applicant further alleged that regarding the right to family, in her first application for a dependant visa in 2015, ImmD failed to consider the Applicant’s contribution to the Husband and the family, or at least in all fairness ImmD should allow her to stay in Hong Kong without requiring her to work only as a FDH so she would have made better contribution.

60.  In her oral submissions, the Applicant emphasised that she wishes to stay in Hong Kong, not just because she has been living here for a very long time and it is her home, but because she wishes to be able readily to visit the Husband’s home.

61.  Ms Liu submitted that the argument advanced by the Applicant is in effect the alleged failure of the Director in taking into account the relevant considerations, i.e. the Personal Circumstances of the Applicant, which must be rejected for the following reasons.

62.  First, it is misconceived that the Applicant’s Personal Circumstances are relevant considerations under the Dependant Policy. It is not reasonably arguable that the Decisions were Wednesbury unreasonable if the Personal Circumstances, which were at most compassionate and humanitarian considerations, had been taken into account.

63.  Secondly, in the immigration context in Hong Kong, in exercise of the Director’s wide discretion in relation to immigration matters, he is not obliged to take into account compassionate or humanitarian considerations: Lau Kong Yung and Others v Director of Immigration (1999) 2 HKCFAR 300 at 300 D-F. If the Director does take such considerations into account, it is up to him to decide how much weight is to be given to them: the BI case at §§104-105.

64.  Thirdly, in a Wednesbury challenge against a decision-maker’s assessment of the relevance of various matters and the weight to be attached to the same, a wide margin of appreciation will be given by the Court to the views of the decision-maker given the broad nature of the discretion, the high policy content on immigration matters, and the fact that the Court does not have the relevant expertise in immigration matters: PVQ and Others v Permanent Secretary for Security [2021] HKCA 444 at §59. The Director did take into account the Applicant’s Personal Circumstances and it is up to the Director to decide not to exercise any discretion to permit the Applicant to remain in Hong Kong upon failing in satisfaction of the eligibility criteria of the Dependant Policy.

65.  I accept Ms Liu’s submissions. On the facts of the present case and looking at the correspondence between the Applicant and the Director and the internal minutes of ImmD as a whole, there is no evidence suggesting that the Director erred in law, nor was there any procedural unfairness, in respect of the Director’s consideration of and assessment on the compassionate and humanitarian ground as raised by the Applicant.

66.  As addressed in my recent decision in Yolmo Deechen Lamu v Director of Immigration [2024] HKCFI 3438 at §51, I recognise that different persons might take a different view as to whether the Personal Circumstances relied upon by the Applicant could or should justify the grant of visa or permission to stay on an exceptional basis – perhaps particularly if those circumstances are considered in a vacuum. But, the Director is tasked with making individual decisions in light of the overall policies relating to immigration, and I do not think that it is reasonably arguable that the Decisions were so far outside the range of reasonably possible decisions as would lead to a conclusion that they were irrational or Wednesbury unreasonable.

67.  From the materials available, it seems that the Applicant has genuinely intended to reside in Hong Kong permanently on the basis of the marriage between her and the Husband and has made efforts in building connections with the local community and maintaining good relationship with the family members of the Husband locally.

68.  However, Ground 1 is not reasonably arguable with any realistic prospect of success.

F.  Ground 2: The Decisions were wrong in principle

69.  Under Ground 2, the complaints of the Applicant are in summary that:

(1)  The Director delayed granting her a dependant visa since she and the Husband were married on 18 November 2015, but the visa for change of status as a dependant was only granted to her on 6 November 2020, and such delay was due to the error of the Director in adopting the criteria of dependency when assessing the Applicant’s dependant visa application in 2015.

(2)  In her first application for a dependant visa in 2015, an immigration officer told her to make an application later when the Husband was discharged from bankruptcy and thus she did not pursue the application further (i.e. the withdrawal).

(3)  The Applicant enjoyed a right to family reunion and should be granted a dependant visa on the ground of her basic right to live with the Husband in Hong Kong.

70.  In response, Ms Liu submitted that:

(1)  There is no such “rule” that permission of stay would be granted to a person on the ground of her basic right to live with a sponsor as alleged by the Applicant. The Applicant, as an alien with no right of abode or right to land in Hong Kong, could not have any legitimate expectation that her visa or stay would be renewed upon expiry. A visa/permit is required by a person to take up residence in Hong Kong, unless a person has the right of abode or right to land in Hong Kong.

(2)  The immigration reservation provided in section 11 of the Hong Kong Bill of Rights Ordinance Cap 486 (“BOR”) precludes the Applicant from reliance on Article 37 of the Basic Law and Articles 14 and 19 of the BOR to enter and remain in Hong Kong: Comilang v Director of Immigration (2019) 22 HKCFAR 59 at §§38 to 41.

(3)  To apply for entry for residence as a dependant in Hong Kong, the burden is on the Applicant to show such facts that might persuade the Director that her circumstances are those that fall within the Dependant Policy – see Nisa Azizan v Director of Immigration (unreported, HCAL 203/2015, 15 April 2016) at §49(2) – or that the Director should exercise his discretion to depart from the Dependant Policy.

(4)  It was up to the Applicant to make representations and submit documents in support of her dependant visa application made in 2015. However, it was her decision to withdraw this application on 3 March 2016, rather than any delay created by the Director as alleged.

(5)  When the Applicant was later considered to have met the eligibility criteria for residence in Hong Kong under the Dependant Policy, it was not unreasonable for the Director to only grant a visa for entry for residence as a dependant to the Applicant on 6 November 2020, instead of a permission to stay on the alleged ground of her basic right to live with the Husband.

(6)  As regards the Current Application and the Request, the Applicant had sufficient opportunities to make representations and provide supporting documents, and was clearly informed of the Decisions. In making the Decisions, the Director had duly taken into account all the available information. There was no procedural unfairness in the decision-making process.

71.  I agree with those submissions. On the facts of the present case as traversed above and by a proper interpretation of the Dependant Policy, there is no basis for suggesting that the Director’s Decisions were made wrongly in principle.

72.  First, the applicant, as a non-HKPR, bears the burden of proving that she meets the eligibility criteria and continues to meet those criteria in her applications for dependant visa and extension of stay. According to the Dependant Policy’s Guidebook (ID(E)998 (1/2025) and ID(E)998 (2/2025)), for a sponsor who is a HKPR or a resident who is not subject to a limit of stay, his or her spouse may apply to join him or her for residence in Hong Kong as a dependant. The unfortunate demise of the Applicant’s Husband (i.e. the sponsor) made the Applicant unable to fulfil one of the key eligibility criteria under the Dependant Policy.

73.  Secondly, during the Applicant’s first application for a dependant visa in 2015, due to the fact of the Sponsor’s financial position as a bankrupt at that time, that application would unlikely have succeeded. Under the Dependant Policy, a sponsor’s financial capability is a relevant consideration for grant of a dependant visa by the Director. It is clear that there was no misinterpretation or misapplication of the Dependant Policy, which is not formulated by reference to any ‘basic right to live with a spouse’ as alleged by the Applicant. It is trite that the dependant visa policy is not a policy of family reunion (or union).

74.  Therefore, I see no reasonably arguable illegality, procedural impropriety and irrationality in the Decisions.

75.  Ground 2 is rejected.

G.  Ground 3: The Dependant Policy was unreasonable / unlawful fettering of discretion

76.  The gist of the Applicant’s criticism underpinning Ground 3 is that it was wrong for the Director to consider that an applicant should always have an eligible sponsor under the Dependant Policy, and the Director should consider the right to family union instead.

77.  In the Reply, the Applicant emphasised that once the prima facie test of genuine husband and wife relationship is satisfied, the Director can almost uphold the right to family by exercising the discretionary power to allow her to stay in Hong Kong and other considerations are subsidiary to weaken or fortify such right, and the Applicant repeated the argument concerning her Personal Circumstances. The overlap with the other Grounds is clear.

78.  The submissions of Ms Liu in response to Ground 3 are in summary that:

(1)  Under the existing immigration policy, an application for extension of stay by a person to remain in Hong Kong as a dependant is not granted automatically but only when the Director is satisfied that an applicant continues to meet the eligibility criteria for residence in Hong Kong under the Dependant Policy (including no change in circumstances which would have otherwise resulted in loss of sponsorship, e.g. change in marriage relationship and death of sponsor) and the sponsor remains a bona fide Hong Kong resident in Hong Kong.

(2)  As the Applicant lost the sponsorship due to the Husband’s death, she was no longer eligible to remain in Hong Kong on dependant status. It is clear that the Current Application fell outside the Dependant Policy.

(3)  It is up to the Director, as a matter of exercising his discretionary power, to consider the Current Application, with regards to the circumstances and the overall restrictive immigration policy.

(4)  It is up to the Director to decide how much weight to put on compassionate or humanitarian factors, and the Court could only intervene if there were unfairness in the process.

(5)  Albeit that the Director had no legal duty to do so, he had considered all the information provided by the Applicant, including but not limited to her Personal Circumstances and the fact that the named Mr Law is not an eligible sponsor under the Dependant Policy, in deciding to refuse the Current Application and the Request. It is not irrational for the Director to consider these factors insufficient to justify an exceptional treatment.

79.  I agree with Ms Liu’s analysis. I have already dealt with the question of irrationality in the above context. With respect, there is no force in the Applicant’s suggestion that the Decisions were tainted with any unlawful fettering of discretion. Nor there was any breach of legitimate expectation by the Director as alleged by the Applicant in her Reply.

80.  Ground 3 must be rejected as not being reasonably arguable with any realistic prospect of success.

H.  Conclusion

81.  As I indicated at the beginning of this Decision, this is a case in which many people would feel extreme sympathy for the Applicant’s position. Indeed, such are the facts that the Director might think it apt to look again at the case (though whether he does, and if so what view he might reach, are matters for him to decide).

82.  The Applicant has lived her entire adult and working life in Hong Kong. She has little remaining connection to her family in Indonesia. She has become integrated in Hong Kong society, marrying a local and becoming part of his wider family, with whom she continues to remain close notwithstanding that her Husband passed away. She is fluent in Cantonese. She knew her Husband for about eight years before they married. She was then married to her Husband for more than eight years, and devoted herself to him, and to his care during his unfortunate illness which led to his demise. In addition, she was throughout either the sole or a significant financial contributor to the marriage. She has worked throughout the period spent in Hong Kong (though none of that was in circumstances which led to becoming an HKPR). But for her Husband’s earlier bankruptcy, she most likely would have obtained a dependant visa, and its renewal, for a total period which by now would have given her HKPR status.

83.  But, on the law and principles applicable, none of the proposed Grounds of review is reasonably arguable with any realistic prospect of success. As a result, I am forced to the conclusion that the Applicant’s application for leave to apply for judicial review must be and is dismissed.

84.  However, in the exercise of my discretion, I make no order as to costs.