Yolmo Deechen Lamu v. Director of Immigration

CACV 540/2024, [2026] HKCA 1079

On Appeal From [2024] HKCFI 3438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 540 OF 2024

(ON APPEAL FROM HCAL NO 1287 OF 2024)

________________________

________________________

________________

J U D G M E N T

________________

Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.This is the Applicant’s appeal against the order of Coleman J dated 5 December 2024 refusing to grant leave to apply for judicial review of 2 decisions made by the Director of Immigration (“the Director”), namely:

(1)  the Director’s decision dated 30 May 2022 vitiating the previous permissions of stay granted to the Applicant to remain in Hong Kong as a dependant of Mr Leung Ka Wai (“Mr Leung”) from 25 April 2012 to 23 May 2022 (“Vitiation Decision”); and

(2)  the Director’s decision dated 6 June 2022 refusing the Applicant’s application for extension of stay in Hong Kong as a dependant of Mr Leung (“Refusal Decision”, collectively “Decisions”).

BACKGROUND FACTS

2.The background facts of this case have been fully set out in the written Decision of the Judge dated 5 December 2024 (“the Decision”), and will not be repeated here. We shall, however, highlight the salient facts which are material for the purpose of disposing of the present appeal.

3.The Applicant, an Indian national, entered Hong Kong in 2009 as a foreign domestic helper, and was allowed to stay until 5 December 2011, or two weeks after the termination of her foreign domestic helper employment contract, whichever was the earlier.

4.On 25 June 2011, the Applicant married Mr Leung, a Hong Kong permanent resident, in Hong Kong (“the Marriage”). On the strength of that marriage relationship, the Applicant applied for, and was granted, a dependant visa on 25 April 2012 permitting her to stay in Hong Kong up to 25 April 2013.

5.Subsequently, the Applicant’s 1^st and 2^nd applications for extension of stay as a dependant of Mr Leung, submitted on 25 April 2013 and 28 March 2014, were approved, and the Applicant’s limit of stay was extended to 25 April 2014 and 25 April 2017 respectively. In those applications, the Applicant stated that there was no change in her marital relationship with Mr Leung.

6.On 17 March 2015, the Immigration Department (“ImmD”) received information from the Exit and Entry Administration of the Public Security Bureau of Hainan Province (“the Hainan Authorities”) that Mr Leung was married to Ms Zhou Chan (“Ms Zhou”) in Haikou City, Hainan Province, China on 2 June 2011 (“the Prior Marriage”). Since there was no indication that the Prior Marriage had been legally dissolved at the time of the Applicant’s marriage with Mr Leung, ImmD suspected that the Prior Marriage was still subsisting at the time when Mr Leung solemnised his marriage with the Applicant on 25 June 2011.

7.Thereafter, ImmD carried out further investigation concerning the marital status of Mr Leung. It is not necessary to set out the details of ImmD’s investigation in this judgment, save to mention that:

(1)  On 6 December 2016, Mr Leung was interviewed under caution by ImmD for the alleged offences of bigamy, perjury and making false declarations in the Applicant’s applications for extension of stay. He exercised his right to remain silent under caution.

(2)  On 1 June 2019, the Applicant was interviewed under caution by ImmD for suspected provision of false information in respect of her relationship with Mr Leung in her dependant visa application and subsequent applications for extension of stay. The Applicant also exercised her right to remain silent under caution.

8.In the meantime, in view of the fact that the investigation into the validity of the Marriage had not yet been concluded by the time of the Applicant’s 3^rd and 4^th applications for extension of stay submitted on 13 February 2017 and 5 March 2019, ImmD gave her the benefit of the doubt and approved her applications, and extended her limit of stay up to 23 May 2019 and 23 May 2022 respectively. In those applications, the Applicant continued to declare that there was no change in her marital relationship with Mr Leung.

9.Upon completion of investigation, ImmD concluded that: (1) on the balance of probabilities, the Marriage was a bigamous one and should be regarded as void; and (2) the permissions of stay previously granted to the Applicant as a dependant of Mr Leung during the period from 25 April 2012 to 23 May 2022 should be deemed null and void, because they were obtained on the basis of a false representation that the Applicant was the wife of Mr Leung in a lawful marriage.

10.On 26 May 2020, ImmD informed the Applicant of the intended vitiation of the permissions of stay previously granted to her and the reasons of the intended vitiation, and invited her to make representations as to why the previous permissions of stay granted should not be vitiated.

11.After consideration of the representations made by or on behalf of the Applicant:

(1)  by a letter dated 30 May 2022, ImmD notified the Applicant of the Vitiation Decision; and

(2)  by a further letter dated 6 June 2022, ImmD informed the Applicant of the Refusal Decision, refusing her 5^th application for extension of stay as a dependant of Mr Leung submitted on 6 April 2022.

THE APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REIVEW

12.By a Form 86 filed on 6 August 2024, the Applicant applied for leave to apply for judicial review of the Vitiation Decision and the Refusal Decision. No ground for seeking relief was given in the Form 86. The Judge, while noting the mandatory requirement on the part of an applicant to properly identify specific and proper ground(s) of judicial review in a Form 86 under Order 53, rule 3(2)(a) of the Rules of the High Court (Cap 4A), treated the following grounds distilled from the Applicant’s affirmation filed on 6 August 2024 as her intended grounds of judicial review:

(1)  JR Ground 1: the Director’s Decisions were unfair and inaccurate.

(2)  JR Ground 2: the Director took into account irrelevant considerations.

(3)  JR Ground 3: there was no concrete evidence of the Prior Marriage.

(4)  JR Ground 4: legitimate expectation.

THE DECISION

13.In the Decision, the Judge dealt with and rejected each of the aforesaid intended grounds of judicial review.

14.In respect of JR Ground 1:

(1)  The Applicant’s complaint was that: (1) the Decisions were inaccurate and unfair as the Director had failed to disclose all details of the Prior Marriage to her and to consider the effects of the Decisions on her, and (2) the Director had failed to take into account various relevant considerations, including (a) the Applicant had been in Hong Kong for over 13 years, (b) she had built a family and social support structure in Hong Kong, (c) she did not have anyone to return to in India, and (d) from her travel records, she seldom left Hong Kong in the past 13 years and had taken Hong Kong as her only place of residence (§46).

(2)  The Judge held that there was no evidence suggesting that the Director had made any error of law, nor was there any procedural unfairness. Further, it was not reasonably arguable that the Decisions were so far outside the range of reasonably possible decisions as would lead to the conclusion that they were irrational or unreasonable in the Wednesbury sense (§§48-52).

15.In respect of JR Ground 2:

(1)  The Applicant’s complaint was that she and Mr Leung had the right of silence when they were interviewed under caution by ImmD for suspected criminal offences on 6 December 2016 and 1 June 2019 respectively, and their refusal to make any statement should have no adverse effect on the consideration of the Decisions (§54).

(2)  The Judge accepted the submissions of Mr Cheung, Senior Government Counsel (on behalf of the Director), inter alia, that (a) the Director did not make the Decisions based on the absence of an explanation from the Applicant and Mr Leung, (b) instead, the Director made the Decisions on the basis of positive evidence that the 2^nd Marriage was a bigamous one, and (c) there was no factual basis for the assertion that the Director had drawn any adverse inference from, or relied on, the fact that the Applicant and Mr Leung had exercised their right of silence under caution. The Judge held that there was no merit in the suggestion that the Director took account of any irrelevant consideration (§§55-56).

16.In respect of JR Ground 3:

(1)  The Applicant complained, amongst other things, that: (a) Mr Leung had confirmed that he had never married anyone except the Applicant, and there was no concrete evidence as to whether Mr Leung had married anyone before the Marriage, and (b) ImmD had failed to bring up the Prior Marriage until April 2019, and had granted various extensions of stay in the interim (§58).

(2)  The Judge accepted the submissions of Mr Cheung, inter alia, that (a) there was strong evidence in the form of information, including a Mainland marriage certificate, provided by the Hainan Authorities that there was a subsisting marriage (ie the Prior Marriage) between Ms Zhou and Mr Leung solemnised in the Mainland on 2 June 2011 before the Marriage between the Applicant and Mr Leung was solemnised in Hong Kong on 25 June 2011, (b) the Director was entitled to reach the view that the Marriage was a bigamous one which underpinned the Decisions, (c) it was reasonable for the Director to give no or little weight to the evidence of Mr Leung that he had only married the Applicant, as he was not reliable and had given inconsistent information in respect of his marriage condition on different occasions, (d) the Applicant’s alleged lack of knowledge about the Prior Marriage was of no relevance to the legality of her entry and stay in Hong Kong, and (e) the Director was entitled to vitiate the permissions of stay granted on the basis of deception or misrepresentation: Razwan Ahmed v Registration of Persons Tribunal and Others [2012] 2 HKLRD 583 at §66. The Judge did not consider, on the facts of the present case and looking at the contemporaneous documents, that the Director had committed any error of law in the analysis and in reaching the conclusion that the Marriage was bigamous and void. As regards the alleged delay by the Director in bringing up the Prior Marriage, the Judge considered that the delay could not be said to be undue in view of the time incurred by ImmD to investigate into the matter and to liaise with other public authorities (including the Mainland authorities) (§§59-60).

17.Finally, in respect of JR Ground 4:

(1)  The Applicant argued that, if ImmD had informed her of the Prior Marriage in 2015, it would have saved her around 9 years, and she could have planned her life better. She also complained that ImmD’s assertion that they were unable to locate her was totally unacceptable (§62).

(2)  The Judge accepted Mr Cheung’s submission that ImmD only became aware of the information about the Prior Marriage from the Hainan Authorities (in March 2015), and that was what then prompted the investigation into the Applicant’s case. The granting of the 3^rd and 4^th permissions of stay during the criminal investigation was due to the benefit of the doubt being given to the Applicant. The Judge further took the view that a previous approval did not form any sort of precedent binding on the Director, and there was no representation made by the Director to the Applicant that she could expect the permissions of stay granted would not be affected by subsequent decisions of the Director. Overall, the Judge did not consider the ground of legitimate expectation to be reasonably arguable (§§64-66).

18.The Judge also held that he would not have granted to the Applicant any extension of time to apply for leave to apply for judicial review, because he could see no reasonably arguable ground of judicial review.

19.In conclusion, the Judge held that the Applicant had failed to identify any reasonably arguable grounds of judicial review with a realistic prospect of success. Accordingly, the Judge dismissed the Applicant’s application for leave to apply for judicial review, with no order as to costs.

NOTICE OF APPEAL

20.In the Applicant’s Notice of Appeal dated 10 December 2024, five grounds of appeal are raised.

(1)  Appeal Ground 1: the Judge erred in failing to find that ImmD had failed to follow the rules set out in the Immigration Ordinance (Cap 115) when processing her application for extension of stay or in making the decision to vitiate the previous permissions of stay granted to her. She was a genuine dependant of Mr Leung. The vitiation of her permissions to stay was not based on any objective findings. The Director took around 6 years to investigate into the validity of the Marriage matter when all the documents they checked were within the possession of the Director, and no further information was obtained from the information provider (ie the Hainan Authorities).

(2)  Appeal Ground 2: the Judge erred in failing to find that ImmD took into account irrelevant considerations, when the Director had time and again pointed out that Mr Leung and the Applicant did not say anything under caution.

(3)  Appeal Ground 3: the Judge erred in holding that the Director’s delay was not undue, especially when all the documents they checked were within the possession of the Director and no further information was obtained from the Hainan Authorities. Also, there existed no strong evidence to prove that the Prior Marriage did take place in China.

(4)  Appeal Ground 4: the Judge erred in holding that the 3^rd and 4^th permissions of stay were granted to the Applicant due to the benefit of the doubt being given to her. ImmD should have told her earlier about the Prior Marriage so that she could have planned her life accordingly, but they kept extending her visa thereby giving rise to a legitimate expectation.

(5)  Appeal Ground 5: there was no prejudice caused to the Director even though there was delay in filing the application for leave to apply for judicial review, since the facts of the case had remained the same.

DISCUSSION

21.In our view, none of the grounds of appeal raised by the Applicant has merit.

22.In respect of Appeal Ground 1:

(1)  The Applicant has failed to identify the relevant rules in the Immigration Ordinance which it is alleged the Director had failed to follow when processing her application for extension of stay, or in making the decision to vitiate the previous permissions of stay granted to her.

(2)  If, as found by the Director, the Applicant’s marriage with Mr Leung was a bigamous one and therefore void, the Applicant would fall outside the scope of the Director’s dependant policy[1], and the dependent visa and permissions of stay previously granted to her should be vitiated because they were given based on a false representation that the Applicant and Mr Leung were lawfully married at the material times, regardless of whether the Applicant was aware of the invalidity of the Marriage (see Razwan Ahmed v Registration of Persons Tribunal and Others [2012] 2 HKLRD 583, at §§36-51, 66, see also Li Mengzhi v Commissioner of Registration [2026] HKCA 246, at §§36-39 in relation to the irrelevance of an applicant’s lack of knowledge that permission to land was obtained based on a false or invalid document). The fact that the Applicant was a genuine “dependant”, in the colloquial sense, of Mr Leung is also irrelevant for the present purpose.

(3)  The suggestion that the vitiation of her permissions of stay was not based on any objective findings is unsustainable. It is well established that the Director is entitled, when making immigration decisions, to rely on evidence provided by the Mainland authorities on matters such as whether an One-way Permit is valid or lawfully issued (see Tsui Siu Wai v Director of Immigration (unreported, HCMP 1665/1994, 6 December 1994) at pp20-21, and Li Fu Shan v Director of Immigration [2002] 4 HKC 284 at §§79-81). Equally, the Director was entitled to rely on the evidence provided by the Hainan Authorities in this case concerning the existence or validity of a marriage solemnised in the Mainland (ie the Prior Marriage).

(4)  Lastly, as regards the time taken by the Director to investigate into the validity of the Marriage, the availability of relevant documents was only one matter which would affect the progress of ImmD’s investigation. As pointed out by Ms Liu in her submissions for the Director, the investigation was not based only on ImmD’s documents or records. Criminal matters and various sections of ImmD were involved. Further information and evidence, including information furnished by Mr Leung on various occasions and representations made by or on behalf of the Applicant, became available to ImmD when the investigation proceeded. Also, the investigation process should not be viewed from hindsight. In our view, whether there was undue delay in ImmD’s investigation is a question of fact. The Judge, upon a consideration of the evidence and materials in the case, took the view that: “As regards the alleged delay by the Director in bringing up the alleged 1^st Marriage, it seems to me that the delay could not be said to be undue in view of the time incurred by ImmD to investigate into the matter and to liaise with other public authorities (including the Mainland authorities).”  This is a finding of fact which was open to the Judge to make. We can see no proper or sufficient basis for us to intervene in this finding by the Judge.

23.Appeal Ground 2 is plainly unarguable. It is apparent, from the Director’s letters to the Applicant (through her then legal representative) dated 30 May 2022 and 6 June 2022 conveying the Vitiation Decision and the Refusal Decision, that those decisions were made not because the Applicant and Mr Leung exercised their right of silence under caution, but because it was found, on the balance of probabilities, that the Marriage was a bigamous one and should be regarded as void, and thus the previous permissions of stay granted to the Applicant as a dependant of Mr Leung was based on a false representation and should be vitiated, and no further extension of stay should be granted to the Applicant. There is no basis for the Applicant’s allegation that the Director took into account, or relied upon, the fact that the Applicant and Mr Leung exercised their right of silence under caution in making the Decisions.

24.Appeal Ground 3 concerns the Director’s alleged delay in investigation into the validity of the Marriage, and the contention that there was no strong evidence to prove that the Prior Marriage did take place in China. We have already dealt with these points under Appeal Ground 1 (see §22(3) and (4) above), and shall not repeat our analysis here.

25.Appeal Ground 4 is, in substance, a repetition of the Applicant’s argument on legitimate expectation. In order to make out a case of legitimate expectation in the context of the present case, the Applicant would need to show that the Director had made a representation, by words or conduct, to the effect that the previous permissions of stay granted to her would not be vitiated and she would continue to be granted further extensions of stay irrespective of the existence of the underlying basis for granting her permission of stay in the first place. No such representation can be spelt out on the facts of the present case. As rightly held by the Judge, the fact that the Director had previously granted permissions of stay cannot give rise to any legitimate expectation on the Applicant’s part that the Director would continue to do so whatever the circumstances.

26.Appeal Ground 5 can be dealt with briefly. The issue of delay was in fact not critical to the Judge’s decision to refuse to grant leave to apply for judicial review. As mentioned by the Judge at §70 of the Decision, on any consideration of an application for extension of time, it would be necessary to take into account the apparent merits of the proposed application for leave to apply for judicial review. The Judge was of the view that there was no reasonably arguable grounds of judicial review. We agree with the Judge’s view. That being the position, it would be futile to extend the time for the Applicant to apply for leave to apply for judicial review. The question of whether the Director has suffered any prejudice as a result of the Applicant’s delay is completely beside the point.

27.We have also considered the Applicant’s Skeleton Submissions dated 18 May 2026 and her oral submissions. They are largely repetitive of points raised in the Notice of Appeal, and do not add anything of substance to the Applicant’s appeal. We would only make some observations on a few points raised in the Applicant’s Skeleton Submissions:

(1)  The Applicant complains that ImmD has never taken any steps to nullify the Marriage, and thus she is still married to Mr Leung. The Applicant also says that if ImmD believes that her marriage is a bigamous one, it should have taken steps to nullify the Marriage. The Applicant’s complaint is based on a mistaken understanding of the law and the Director’s powers and responsibilities. In view of the fact the Applicant’s marriage with Mr Leung is a bigamous one, it is void as a matter of law regardless of whether any party applies to the Family Court for a decree of nullity. It is no part of the Director’s powers or responsibilities to take any steps to nullify the Applicant’s marriage. Neither does the Director have locus to present a petition to the Family Court to seek a decree of nullity of the Marriage.

(2)  Insofar as the Applicant relies on humanitarian considerations, they have been dealt with by the Judge at §§46-48 of the Decision.

(3)  The Applicant says that if, as alleged by ImmD, her marriage with Mr Leung is a bigamous one, she would be a victim of human trafficking as she was made to stay in Hong Kong as a married person when her marriage was not valid, and ImmD is an accomplice in this matter. The suggestion that the Applicant is a victim of human trafficking is a new point not previously raised below. In any event, it has no foundation whatsoever. If the Applicant is a victim, she would be a victim of fraud practised on her by Mr Leung. There is simply no basis for any contention that the Applicant is a victim of “human trafficking” as that expression is normally understood, whether in the colloquial sense or in the strict legal sense. The allegation that ImmD is an “accomplice” is a wild allegation made without the slightest foundation.

DISPOSITION

28.The Applicant’s appeal is dismissed with costs to the Putative Respondent, to be summarily assessed.

29.We have considered the Putative Respondent’s Statement of Costs for Summary Assessment dated 26 May 2026. The total amount of costs claimed by the Putative Respondent comes to HK$67,751.67. The Applicant did not have any substantive submission to make in respect of the costs claimed by the Putative Respondent, beyond saying that she had no work and was unable to pay the costs claimed by the Putative Respondent. Item D4 of the Statement of Costs relates to “Attendance on hearing on 9.6.2026”, and is based on a 3-hour hearing of the appeal. As it was, the appeal hearing took no more than 20 minutes to complete. Taking into account travelling time, we would allow costs based on a 1-hour hearing. Also, the costs incurred in gathering information and preparing the Statement of Costs (Item E) are not allowed[2]. The other items of costs (including the amounts) claimed by the Putative Respondent seem to us to be reasonable. In all, we summarily assess the Putative Respondent’s costs in the round figure of HK$47,670.

The Applicant, acting in person

Miss Angie Liu, Government Counsel, of Department of Justice, for the Putative Respondent