WASEEM GHOUSIA v. DIRECTOR OF IMMIGRATION

HCAL 1348/2025

[2025] HKCFI 3524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1348 OF 2025

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D E C I S I O N

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A.  Introduction

1.  By her Form 86 dated 12 June 2025, the Applicant seeks leave to apply for judicial review so as to challenge two decisions of the Putative Respondent (“Director”) dated 15 April 2025 (“1^st Decision”) and 5 June 2025 (“2^nd Decision”). The 1^st Decision refused the Applicant’s application for an extension of stay, made on her own merits. The 2^nd Decision maintained the 1^st Decision upon reconsideration.

2.  On 16 June 2025, I gave directions permitting the Director to file and serve an initial response to the application, and for the Applicant to file a reply. The initial response was filed on 22 July 2025, signed by Mr Frenki Fung, Acting Senior Government Counsel. But the Applicant did not file any reply.

3.  Also on 16 June 2025, I fixed the oral hearing of the application for leave to apply for judicial review, as requested by the Applicant in her Form 86, for the date of 6 August 2025. The Director requested to be excused from the hearing, being content to rely on the matters identified in the initial response, which I permitted.

4.  In the meantime, the Applicant also filed an application for legal aid on 25 July 2025. Notwithstanding that application, it seemed to me to be appropriate in the circumstances – as will be set out further below – for the automatic stay to be lifted, so that the hearing fixed could go ahead.

5.  At the hearing, the Applicant appeared in person, assisted by an English/Urdu interpreter. At the end of the hearing, I reserved my decision to be handed down in writing on a given date, so that the interpreter could be engaged to help the Applicant understand my decision and its reasoning.

6.  This is my Decision.

B.  Background

7.  The Applicant is a Pakistani national, born on 14 November 1991. She married her husband (“Husband”) in Pakistan on 12 April 2017. The husband is a Hong Kong permanent resident (“HKPR”).

8.  On 8 September 2020, the Applicant applied to the Immigration Department (“ImmD”) to join the Husband as a dependant. The application was approved on 8 March 2021, and the Applicant arrived in Hong Kong on 1 April 2021, with limit of stay on dependant status until 1 April 2022.

9.  On 23 March 2022, the Applicant and Husband’s daughter (“Daughter”) was born in Hong Kong. She is considered a HKPR under the provisions of the Immigration Ordinance Cap 115.

10.  A subsequent application by the Applicant for extension of stay as a dependant of the Husband was granted, extending her limit of stay until 1 April 2025. However, on 1 March 2024, ImmD received a letter from the Husband informing his intention to withdraw his sponsorship of the Applicant as his dependant. This was obviously upon the breakdown of their marriage, and the Applicant and Husband were divorced in Pakistan on 10 October 2024, reflected in the divorce certificate issued on 18 January 2025.

11.  In the meantime, the Applicant moved back to Pakistan in January 2023 with the Daughter on the basis, she says, that she was unable to take any job and the Husband was not supporting her financially, so that she had no choice but to return to Pakistan. She only returned to living in Hong Kong, with the Daughter, in March 2024.

12.  Subsequently, with the benefit of the grant of legal aid, the Applicant commenced Family Court proceedings against the Husband, seeking orders in relation to the Daughter. By originating summons dated 19 March 2025, the Applicant requested (1) an order of custody, care and control of the Daughter to be granted to her, with reasonable access to the Husband and (2) an order requiring the Husband to pay HK$12,000 per month to the Applicant for the benefit of the Daughter. The initial hearing date of the originating summons was 30 May 2025, but it was adjourned to 1 August 2025.

13.  In answer to my request for information about what then occurred, the Applicant informed me that no orders were made on 1 August 2025.

C.  The Applicant’s Applications to ImmD

14.  On 24 March 2025, the Applicant applied through a legal representative to the ImmD for an extension of stay on her own merits. On the basis of the application and the enclosures, together with a letter from her legal representative, it is apparent that the Applicant raised the following humanitarian factors to support application:

(1)  Following the divorce in Pakistan, the Applicant has obtained legal aid to commence proceedings in Hong Kong to seek custody care and control of the Daughter, and maintenance for the Daughter. Therefore, the Applicant would like to pursue those proceedings (“Family Proceedings Factor”).

(2)  The Applicant is the sole caregiver of the Daughter, a HKPR, who will start school in September 2025. Therefore, the Applicant has to stay in Hong Kong to continue to take care of her (“Child Care Factor”).

15.  The financial information provided by the Applicant revealed that the Applicant is a recipient under the Comprehensive Social Security Assistance scheme (“CSSA”), and her bank statements show the balance of her account for most of the time remaining at a two-digit figure. The Applicant claimed that she would be taking up employment after the Daughter is admitted to school, but did not provide any proof of potential employment.

16.  In making the 1^st Decision, the Director noted that:

(1)  The application for extension of stay was outside the prevailing dependant visa policy, where no eligible sponsor was provided, and the application was made on the Applicant’s own merits for the reasons or factors mentioned above.

(2)  The Family Proceedings Factor did not constitute any ground for consideration of exceptional approval of the application.

(3)  The Applicant is unable-bodied adult his place of domicile is known to be Pakistan, where she had lived for many years before staying in Hong Kong as a dependant in 2021. There is no indication that the Applicant cannot re-establish her life in Pakistan.

(4)  It is a matter of choice for the Applicant on the way to raise the Daughter, even if the Family Court orders that she be granted the custody, care and control of the Daughter.

(5)  The reasons or factors given for remaining in Hong Kong do not constitute strong grounds warranting an exceptional consideration for departing from the prevailing policy.

(6)  In addition, looking at the applicant’s financial background (receipt of CSSA and limited financial resources and status of employment), the Applicant is a burden to the local society.

17.  On that basis, the 1^st Decision refusing the application for extension of stay was given by letter dated 15 April 2025. The Applicant was required to leave Hong Kong on or before 29 April 2025.

18.  By letters dated 22 and 28 April 2025, the Applicant’s legal representatives requested rescission of the deadline to leave Hong Kong and a reconsideration of that extension of stay application, on the same humanitarian factors of the Family Proceedings Factor and the Child Care Factor. The letters additionally stated that the Husband never took responsibility of taking care of the Daughter, and that the Applicant had been unable to take employment whilst the Daughter was too young, but that she had applied for and successfully found a job in Hong Kong subject to grant of a visa permitting her to stay in Hong Kong.

19.  However, the Director took the view that all of those matters were known and fell within the factors for consideration previously taken into account. The view was maintained that the factors were not strong and overwhelming for an exceptional approval. As to the Family Proceedings Factor, the Director noted that pursuit of those proceedings did not require the Applicant’s physical presence at court nor entitle her to an extension of stay or permission of stay in Hong Kong. Revisiting the case and its various factors led to maintaining the view that there existed no strong compassionate/humanitarian grounds which warranted an exceptional consideration.

20.  On that basis, the 2^nd Decision was notified to the Applicant by letter dated 5 June 2025. The Applicant was required to leave Hong Kong on or before 19 June 2025.

D.  Intended Grounds of Review

21.  As indicated, the Applicant commenced these proceedings by Form 86 dated 12 June 2025. The Application was supported by her affirmation of the same date.

22.  The identified intended grounds of judicial review are as follows:

(1)  Ground 1: There are exceptional, humanitarian and compassionate grounds to justify an extension of stay to enable the Applicant to take care of the Daughter, a HKPR with deep ties to Hong Kong, and

(a)  Hong Kong is the Daughter’s home and only home, and she has a school placement confirmed for September 2005;

(b)  the Applicant is a law-abiding citizen with a clear criminal record, who made timely applications for extension of dependant visa after promptly reporting the change of circumstances arising from the divorce from the Husband;

(c)  the Applicant is a loving and caring mother providing selfless prioritised care and support to the Daughter in the absence of the Husband’s involvement in care;

(d)  once the Daughter begins school, the Applicant will have time to work and earn a living, with the benefit of a conditional job offer at a colour stone trading company.

(2)  Ground 2: The 1^st Decision was wrong in principle as it was based on the dependant policy which requires the right to family reunion to be subject to the condition that there must be a Hong Kong sponsor spouse who can financially provide a living standard and habitable accommodation to the foreign spouse without burdening Hong Kong – a condition which may be overridden by the Bill of Rights.

(3)  Ground 3: The dependant policy is unreasonable. The first and foremost consideration should be right to family union. It is improper for a person who entered Hong Kong as a dependant of a Hong Kong spouse to be always dependant on the eligible Hong Kong spouse, and the Director should consider allowing a person to stay in Hong Kong and take up employment when he or she becomes independent – and were (as in this case) the Daughter is a HKPR and there are the Family Proceedings Factor and the Child Care Factor.

23.  I can consider each of these Grounds in turn.

E.  Ground 1

24.  This ground asserts that the humanitarian or compassionate factors should justify the grant of an extension to stay to the Applicant on her own merits.

25.  However, as the Director himself correctly noted when making the 1^st and 2^nd Decisions, it is well-settled that (1) the Director is under no legal duty to take humanitarian/compassionate factors into account in deciding whether to grant the extension of stay, and (2) if the Director takes any such factors into account, the weight to be given to those factors is a matter for the Director to decide (subject only to interference by the Court on public law unreasonableness/irrationality grounds.

26.  It is also well-settled that the unreasonableness/irrationality threshold is a high one for an applicant to overcome, and the Court will not likely interfere with the decision of immigration officers made in the Hong Kong context of an overall restrictive immigration policy. This is so, even if it is properly recognised that immigration officers are faced with difficult decisions, many of which might even split families. The role played by the Court remains only supervisory in nature.

27.  In this case, it seems to me that it was open to the Director to conclude that there was no extenuating or humanitarian factor warranting an exceptional consideration, when the Applicant could not otherwise bring herself within an established visa policy (such as the dependant visa policy). Indeed, it seems to me that it was open to the Director to take into account (as he did in the context of the Child Care Factor) that there was no reason to think that the Applicant could not re-establish her life together with the Daughter in Pakistan, and continue to take care of the Daughter there – not least against the history that she did so for the 15 or so months between January 2023 and March 2024.

28.  I have also taken into account the Family Proceedings Factor. On the face of the materials provided with the application for leave to apply for judicial review, I accept that the legal question of custody, care and control of the Daughter is yet to be resolved by any court order in the Family Court. I think it can also be accepted that there may in general be a preference for parents of a child in any contest or dispute about child orders to be present at court hearings relating to the best interests of that child. However: (1) the Applicant has apparently throughout been the sole caregiver of the Daughter, and as a matter of practicality currently exercises de facto sole custody, care and control; (2) it is at least not unlikely that the de facto situation will be reflected in court orders to be made; (3) exceptions can be made so as to excuse one or both parents from attending court hearings, in particular when they can be represented by lawyers, as here with the benefit of a legal aid certificate; and (4) there is no bar to the Family Court ordering the payment of maintenance for the benefit of the Daughter, payable by a father in Hong Kong notwithstanding that the mother and child are not in Hong Kong but in Pakistan. Though perhaps not to this level of specificity, these points were not overlooked by the Director in his consideration.

F.  Ground 2

29.  This Ground asserts that the 1^st Decision was wrong in principle.

30.  With respect, I cannot agree. Again, it is well-settled against the overall restrictive immigration policy applied in Hong Kong that a person who does not have right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission. Within that broad policy, specific immigration policies have been identified to deal with different categories of persons who wish to come to Hong Kong. They allow a limited number of persons to come to Hong Kong for immigration purposes, which may include working, studying, establishing or joining any business, taking up residence as a resident or staying as a visitor. The dependant policy is one such specifically formulated policy.

31.  That policy aims to permit those already residing in Hong Kong, and who are able to provide care and financial support to their dependants, to sponsor their dependants to come to live in Hong Kong. The policy is not a policy of family reunion. It is settled that the policy is based upon showing of dependency of the foreign applicant on the Hong Kong sponsor. Any reliance upon the Bill of Rights is subject to the so-called immigration reservation, set out in section 11 of the Hong Kong Bill of Rights Ordinance. Therefore, any interests or rights in family life do not override the general discretion of the Director.

G.  Ground 3

32.  This Ground asserts that the dependant policy is unreasonable, where the first and foremost consideration should be right to family union.

33.  However, with respect, I have already identified that that is not correct. Indeed, as pointed out by Mr Fung in the Director’s initial response, any right to remain in Hong Kong so as to take care of a child who is a HKPR has been carefully considered by the Courts up to the level of the Court of Final Appeal: see Comilang v Director of Immigration (2019) 22 HKCFAR 59. Even though the Daughter is a HKPR, that does not confer rights in the immigration context to the Applicant as the caregiver.

H.  Result

34.  In the circumstances, none of the intended grounds of review raised by the Applicant are reasonably arguable with any realistic prospect of success.

35.  Therefore, the application for leave to apply for judicial review is dismissed. However, in the exercise of my broad discretion as to costs, I make no order as to costs.

36.  Lastly, I would recognise that there is some room for people to think that the Daughter might perhaps be personally disadvantaged by the decision refusing to permit the Applicant an extension of stay, and plainly the Applicant as the mother would prefer to bring up the Daughter in Hong Kong. But that of itself does not give rise to any reasonable argument that the 1^st or 2^nd Decisions were unlawful or unreasonable/irrational in the public law sense.