Tamang Sudha v. Director of Immigration, Hong Kong Special Administrative Region

CACV 1135/2025, [2026] HKCA 1723

On Appeal From [2025] HKCFI 5662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1135 OF 2025

(ON APPEAL FROM HCAL NO 2457 OF 2025)

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BETWEEN

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J U D G M E N T

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The Court:

INTRODUCTION

1.This is the Applicant’s notice of appeal dated 2 December 2025 against the order of Coleman J (“the Judge”, as he then was) dated 20 November 2025 (“the Order”) refusing to grant leave to apply for judicial review. The intended judicial review is against a decision of the Director of Immigration (“the Director”) dated 22 October 2025 (“the Director’s Decision”) refusing the Applicant’s application for an extension of stay under a dependant visa.  Paragraph 2 of the Judge’s written decision dated 20 November 2025 (“the Judge’s Decision”) reads:

“The Form 86 does not set out any grounds on which relief is sought.  Nor does it actually specify the relief sought, although the Applicant’s affirmation does identify that she requests the grant of leave for judicial review with the wish of ‘overturning’ the Decision and ‘securing appropriate relief and justice’.  The affirmation also suggests (1) that the refusal letter and departure memo provided to her did not provide any concrete reasons for the rejection of her application, and (2) that the Decision infringes upon her right to live with her spouse and is prejudicial in nature.”

BACKGROUND

2.The basic facts of this case have been set out in the Judge’s Decision.  In brief, the Applicant arrived in Hong Kong in 2023 to work as a foreign domestic helper.  She married her husband (“the Husband”) in 2024, and under the Husband’s sponsorship, she was subsequently granted a dependant visa, which was valid until 13 September 2025.  On 18 August 2025, she submitted an application for extension of stay, which was rejected by the Director on 22 October 2025, i.e. the Director’s Decision.

3.The Director’s Decision identified 3 conditions under which an application for a dependant visa may be favourably considered in accordance with the dependant visa policy, one of which is the sponsor’s ability to support the dependant’s living at a standard well above the subsistence level and provide her with a suitable accommodation in the HKSAR.  Based on the available information, the Director was not satisfied that the Husband continued to be financially capable of supporting the Applicant’s living in the HKSAR at a standard well above the subsistence level, and the Applicant’s application for extension of stay was therefore refused.  The Applicant was reminded that her limit of stay as a dependant in the HKSAR has already expired since 14 September 2025 and she was required to leave the HKSAR on or before 5 November 2025.

4.On 18 August 2025, the Applicant submitted a request for reconsideration of the Director’s Decision, which was refused by letter dated 22 October 2025. On 3 November 2025, the Director in writing acknowledged the request was refused and reminded the Applicant that she should leave the HKSAR on or before 5 November 2015.

5.On 4 November 2025, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision.  In the Applicant’s supporting affirmation of the same date (“Supporting Affirmation”), 3 grounds of intended judicial review were raised: (1) no concrete reasons were provided for the Director’s Decision, (2) the Director’s Decision infringed upon the right to live with her spouse, and (3) the Director’s Decision is prejudicial in nature.

THE JUDGE’S DECISION

6.The Judge dealt with the Applicant’s leave application on paper, and refused to grant leave to apply for judicial review on 20 November 2025, i.e. the Judge’s Decision.

7.In respect of the 3 grounds of review, the Judge’s reasoning is set out at §14 of the Judge’s Decision, as follows:

“None of those possible grounds have any reasonably arguable merit:

(1) First, the [Director’s Decision] plainly gave the concrete reasons why the application for extension of stay was refused.  I have set them out above.

(2) Secondly, it is trite that the dependant visa policy is not a policy of family union or reunion. Quite simply, unless the Applicant can establish a proper basis for the grant of a visa to permit her residence in the HKSAR, there is no relevant right for her to be here to live with her spouse.

(3)  Thirdly, the mere claim to prejudice does not amount to an arguable public law error.  Nor in any event does the Applicant give nay particulars of the prejudice she has allegedly suffered.”

8.As such, the Judge concluded that she had failed to identify any reasonably arguable public law ground of review of the Director’s Decision with any realistic prospect of success, and dismissed her leave application accordingly.

THE PRESENT APPEAL

9.On 2 December 2025, the Applicant filed and served a Notice of Appeal against the Order.  In the Notice of Appeal, the Applicant raises the following ground of appeal:

“… the gravity of my circumstances have not been weighed or realized by both putative Respondents while considering my case.  I should be given an opportunity to plead my case properly.” [sic]

10.In her written submissions dated 2 January 2026, the Applicant argues in her first instance application, she was acting in person and due to her lack of experience and knowledge of the proceedings, she “overlooked” to set out the key ground in the Form 86 that the Director did not properly assess the Husband’s financial standing. She further argued that the Husband was currently employed full-time by a fast-food restaurant earning a monthly salary of $18,000, and after deducting the accommodation costs and miscellaneous expenses of $8,500, the Husband was financially capable of supporting her living in the HKSAR at a standard well above the subsistence level.  

11.The Applicant has elected to have the appeal disposed of on paper.  Having considered the documents in this case, we are satisfied that it is appropriate to deal with the Applicant’s appeal on paper, and we now proceed to do so.

DISCUSSION

12.The matters raised in the Notice of Appeal do not constitute any valid ground of appeal:

(1)  The Applicant’s allegation that the Director failed to appreciate or weigh the gravity of her circumstances when considering her application for extension of stay is merely a bare assertion without particulars.  In any event, it was a matter for the Director to decide what, if any, weight should be given to the Applicant’s personal and family circumstances.  The Director was entitled to apply the well-established strict immigration policy in Hong Kong.  The Judge’s decision refusing to grant extension of stay to the Applicant was not irrational.  We can see no proper public law grounds to challenge the decision.

(2)  As for the contention that the Applicant should be given an opportunity to plead her case properly, the Applicant did have such an opportunity.  Her grounds of application for judicial review were fully set out in the Supporting Affirmation, and were thoroughly considered by the Judge. Furthermore, the Applicant did not request a hearing in the Form 86, and the Judge was entitled to determine her leave application without a hearing.

13.We do not accept the Applicant’s explanation that due to her lack of experience and knowledge of the proceedings, she unintentionally omitted the key ground of review as to the Husband’s financial ability in the Form 86.  As mentioned in §3 above, in the Director’s Decision, the Director clearly spelled out the circumstances under which a dependant visa application may be favourably considered as well as the reason for refusing the Applicant’s application for extension of stay.  If she thought the Director had not properly assessed the Husband’s financial standing, she could and should have simply expressed her disagreement and raised the same argument as in her written submissions in the Form 86.  There would not be any technical issues involved.

14.This Court has reiterated the general propositions for appeals against the refusal of leave by a judge in the Court of First Instance (“the CFI”) that an appeal in such circumstances is not the occasion for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, this Court focuses on the judge’s decision and would only reverse that decision if an appellant can show that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  This Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the CFI: Nupur Mst v Director of Immigration [2018] HKCA 524 at §§14(2) and (4).

15.It follows from the above that it is not permissible for the Applicant to raise at the appeal the ground in relation to the Husband’s financial standing, which is clearly fact-and-evidence sensitive and was not previously raised in the court below.

16.In the present case, we see no basis to disturb the Director’s Decision on the Applicant’s complaints.

17.We are satisfied that the grounds of review mentioned above were properly and correctly dealt with by the Judge.  We agree with the Judge’s reasoning as to why none of them is reasonably arguable with any realistic prospect of success. 

18.We are also satisfied the Applicant has failed to show any error in the Judge’s Decision, or raise any viable ground of appeal against the Order.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

19.The Applicant’s appeal is dismissed.  We summarily assess the costs of the appeal to the Putative Respondent as stated in the statement of Costs dated 21 January 2026 as $30,000.

The Applicant, acting in person

Mr Thomas Tong, Government Counsel, of the Department of Justice, for the Putative Respondent