HUSSAIN IDRIS v. DIRECTOR OF IMMIGRATION

HCAL 1073/2026

[2026] HKCFI 4668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1073 OF 2026

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D E C I S I O N

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A. Introduction

1.  This matter was fixed for hearing on 21 August 2026.  Extremely belatedly, the Applicant has sought to withdraw his application for leave to apply for judicial review, with no order as to costs, and for the hearing to be vacated.  That is unopposed by the Putative Respondent (“Director”).  However, though that is the order I shall make, it seems to me appropriate to give a reasoned decision nonetheless.

2.  The facts giving rise to this application are straightforward:

(1)  The Applicant is a Pakistani national, born in Pakistan on 25 July 2003.

(2)  On 18 March 2022, the Applicant was granted a dependant visa to enter Hong Kong, to live as a dependant of his father (“Father”) as sponsor who is a Hong Kong permanent resident (“HKPR”).

(3)  On 27 May 2022, the Applicant arrived in Hong Kong and has remained in Hong Kong since that date.

(4)  His permission to remain was originally granted until 17 May 2023, subsequently extended to 17 May 2026.

(5)  On 11 May 2026, the Applicant applied for an extension of stay as the sponsor Father’s dependant.

(6)  On 29 May 2026, the extension of stay application was refused, on the basis that the Director of Immigration was not satisfied that the Applicant continued to be a genuine dependant of the Father, and that the Father continued to be financially capable of supporting the Applicant’s living at a standard well above the subsistence level.

(7)  Because the Applicant’s limit of stay had already expired on 18 May 2026, the Director also required him to leave Hong Kong on or before 12 June 2026.

(8)  On 5 June 2026, the Applicant submitted to the Director a request for reconsideration of the refusal of the extension of stay application (“Reconsideration Request”).

(9)  The Applicant was informed that the making of the Reconsideration Request would not grant any extension of stay or right to remain in Hong Kong.

(10)  On 5 June 2026, the Applicant requested the Director to suspend the departure requirement pending determination of the Reconsideration Request.

(11)  On 10 June 2026, the Director informed the Applicant that his request to suspend his departure requirement pending determination of his Reconsideration Request could not be acceded to, and he was again instructed to leave Hong Kong on or before 12 June 2026 (“Impugned Decision”).

(12)  On 11 June 2026, the Applicant filed the Form 86 in these proceedings, seeking leave to apply for judicial review so as to challenge the Impugned Decision, and seeking an oral hearing of the application if leave is not granted on the papers.

(13)  On 24 July 2026, the Director refused the Reconsideration Request.

(14)  The Applicant had not left Hong Kong before that date.

3.  The procedural history of these proceedings is also straightforward:

(1)  The Form 86 was filed on 11 June 2026.

(2)  On 16 June 2026 I gave directions that (a) there be the requested oral hearing of the application for leave to apply for judicial review, fixed for 15 July 2026, and (b) the Director may file an initial response by 10 July 2026.

(3)  However, as a result of a necessary variation in the timetable, I re-fixed the oral hearing to 21 August 2026, and extended the time for the initial response to 12 August 2026.

(4)  By undated letter received by the Court on 29 July 2026, the Applicant informed the Court that the Reconsideration Request had been determined, by the Director’s refusal of it, on 24 July 2026.

(5)  In the same letter, the Applicant also informed the Court that he had presented a petition to the Chief Executive in Council under section 53 of the Immigration Ordinance Cap 115, against both the Director’s original refusal of an extension of stay and the subsequent refusal of the Reconsideration Request.

(6)  Further, the letter seemed either to suggest staying these proceedings pending determination of the Petition, or sought the Court’s guidance as to the appropriate procedural course in the light of those recent developments.

(7)  In my further directions dated 4 August 2026, I indicated that the Court does not give that kind of guidance or legal advice.

(8)  Further, I indicated that a stay of proceedings was neither necessary nor appropriate, and that it seemed to me that the application made in the proceedings had likely become academic.

(9)  Hence, I directed that, unless the Applicant chose to withdraw the proceedings, the hearing on 21 August 2026 would go ahead, and I would make whatever orders seem to me to be appropriate on that occasion.

(10)  The proceedings were not withdrawn by the Applicant before the time for the Director to file his initial response on 12 August 2026.  Therefore, the initial response was filed, signed by Mr Andrew Tong, and Ms Lynn Hui, both Acting Senior Government Counsel.

(11)  However, by letter dated 18 August 2026, but only received by the Court on 19 August 2026, the Applicant indicated his wish to be given leave to withdraw the proceedings, with no order as to costs.

(12)  The letter acknowledged the need to have considered whether there remained any useful purpose in continuing the proceedings in their present form, and the Applicant stated that (a) he took time to consider and understand the practical consequences of withdrawal upon his existing position with the Immigration Department and the Petition to the CEIC, (b) he attempted to seek clarification (and not advice) from the Department of Justice (“DOJ”), (c) the voluntary withdrawal is an effort to bring the conclusions to an orderly conclusion and avoid the necessity of the hearing, (d) there should be no adjudication of the legality or merits of any decision not the subject of these proceedings and without prejudice to such rights and remedies as may be available to the Applicant according to law.

(13)  The Applicant requested orders that (a) the be given to withdraw the application, (b) there be no order as to costs, (c) the withdrawal be without adjudication on the legality or merits of decisions not the subject of these proceedings, and without prejudice to his rights and remedies elsewhere, (d) nothing in the withdrawal shall be treated as a determination by the Court of the legality or merits of the Director’s substantive refusal decisions or any subsequent decision upon his Petition to the CEIC, and (e) the hearing fixed for 21 August 2026 be vacated.

(14)  The DOJ wrote to the Court on 20 August 2026, indicating that it had no objection to the proposed directions (a), (b) and (e) above, but that it was unnecessary and inappropriate to make any order in relation to the requested (c) and (d).

4.  As the Applicant has now withdrawn the application, broadly on terms which are substantially agreed and which I can accept, the hearing as fixed has been vacated.

5.  However, as already indicated, in the overall circumstances it seems to me to be appropriate for there to be a reasoned Decision.

B.  The Application Has Become Academic

6.  The only intended target of the proceedings identified in the Form 86 was the Impugned Decision, namely the requirement for the Applicant to leave Hong Kong on or before 12 June 2026, notwithstanding his Reconsideration Request.  All of the intended relief sought in the Form 86 related to not requiring the Applicant to leave Hong Kong pending determination of the Reconsideration Request.

7.  Nevertheless, because the Reconsideration Request had been been determined and refused, and the Applicant did not leave Hong Kong in the period pending its determination, the relief sought in these proceedings was simply overtaken by events.  The issue of whether the Applicant should depart, or whether the requirement for his departure should be suspended or postponed pending determination of the Reconsideration Request, plainly became entirely academic.

8.  That pointed strongly to the dismissal of the application.

9.  Further, there were no circumstances pointing in the opposite direction.  I accept Mr Tong’s submission made in the Initial Response that there are no issues raised by the Form 86, where analysis of the intended grounds of review would serve any utility.  In any event, even a brief review of those grounds would indicate that they have no reasonably arguable merit.

10.  The Applicant’s Petition to the CEIC is, and was always, also entirely irrelevant to the matters raised in these proceedings by the Form 86.

11.  Therefore, but for the tardy withdrawal, I would have dismissed the application for leave to apply for judicial review.

C.  Amenability

12.  Further, as I previously held in in my decision in Limbu v Director of Immigration [2026] HKCFI 1948 at §31, a decision of the nature of the Impugned Decision is at least strongly arguably not a decision amenable to judicial review.

13.  The Applicant’s permission to remain in Hong Kong expired on 17 May 2026.  Neither the making of the original extension of stay application nor the making of the Reconsideration Request changed the position that the Applicant remained in Hong Kong unlawfully as from 18 May 2026. Neither application conferred any extension of stay or any right to remain in Hong Kong.

14.  A person who is in Hong Kong unlawfully is required to depart from Hong Kong.  It seems to be necessary to reiterate that making a request for deferral of the requirement of departure does not confer any extension of stay or right to remain in Hong Kong.  Refusal of that request simply reasserts the consequences of the continued absence of permission to remain, and the continued failure to have departed.  By refusing to defer departure, the Director did not create or change any existing right or entitlement previously existing.  In essence, the Director was telling the Applicant again that he had no permission to stay in Hong Kong and that he needed to leave, and informed him of the possible consequences if she failed to leave.

D.  Result

15.  These proceedings became entirely academic on 24 July 2026.  For that reason alone, the Applicant’s application for leave to apply for judicial review fell to be dismissed.  In any event, the application had no merit, and I do not think the Impugned Decision was even amenable to judicial review in this case.  However, as the Applicant has sought to withdraw the application, and that approach is not opposed by the Director, I grant leave to the Applicant to withdraw the application.

16.  I have vacated the hearing fixed for 21 August 2026.  The other directions order sought by the Applicant in his letter (see above) are unnecessary and inappropriate and I refuse them.

17.  As to costs, whilst I recognise that the application was made ex parte in accordance with the rules, the Applicant made the express request that there be an oral hearing if the Court were not minded to grant leave on the papers alone.  As my directions given to bring the matter to an oral hearing made clear, the Director was likely to incur costs in providing an initial response, and in attendance at the hearing.  Further, where the Applicant had been warned of the fact that the proceedings had likely become academic, the decision not to withdraw them when invited to do so – at least not before the deadline set for the provision of an initial response – is what resulted in the incidence of costs incurred for the Director.  Those are circumstances which seem to me would justify, in the exercise of my discretion, an order that the Applicant bear the Director’s costs of these proceedings, to be summarily assessed.  Nevertheless, the Applicant’s suggested no order as to costs has not been objected to by the Director.  Therefore, but only for that reason, I make no order as to costs.