Limbu Meenu v. Director of Immigration Department

CACV 879/2025, [2026] HKCA 1887

On appeal from [2025] HKCFI 4531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 879 OF 2025

(ON APPEAL FROM HCAL NO 2088 OF 2025)

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BETWEEN

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

The application

1.This is an application for relief from sanction for failing to comply with an unless order.

Background

2.The applicant came to Hong Kong to work as a foreign domestic helper.  She married her husband on 5 February 2025 and applied for an extension of stay and change of status under the sponsorship of her husband.  Her application was rejected by the Director of Immigration (“the Director”) on 28 April 2025.  She made her first application for reconsideration on 2 May 2025, which was refused on 24 July 2025.  She made her second reconsideration request on 6 August 2025, which was rejected on 5 September 2025.

3.On 16 September 2025, the applicant filed a Form 86 to apply for leave to bring judicial review against the decision of the Director dated 5 September 2025.  Her leave application was dismissed by Coleman J on 6 October 2025 as the judge found that she has failed to identify any reasonably arguable public law grounds of appeal with any realistic prospect of success[1].  

4.She filed a notice of appeal against the judge’s decision on 14 October 2025.

5.On 17 December 2025, the Registrar of Civil Appeals directed that an application to fix a date for hearing the appeal be filed on or before 31 December 2025.  As the applicant failed to comply with the said direction, the Registrar directed on 2 January 2026 that unless the applicant by 4 pm on 19 January 2026 do file an application to fix a date for hearing the appeal, the appeal will be referred to the Court of Appeal for consideration of imposing an unless order with the consequence of default to be the dismissal of the notice of appeal without further notice.  Such direction was sent to the applicant by post on 5 January 2026.  The applicant did not comply with this direction.  

6.On 29 January 2026, Kwan VP made an order that unless the applicant do file an application to fix a date for hearing the appeal by 4 pm on 12 February 2026, the applicant’s notice of appeal filed on 14 October 2025 be dismissed immediately thereafter without further notice (“Unless Order”).  The applicant failed to comply with the Unless Order and her appeal was dismissed on 12 February 2026 pursuant to the Unless Order.  

7.On 17 March 2026, the applicant filed the present summons to seek to reinstate her appeal.  We shall treat this summons as an application for extension of time to apply for relief from sanction and an application for relief from sanction for failing to comply with the Unless Order. 

8.The Director indicated that he would take a neutral stance in this application.

Analysis

9.Having considered the papers of this case, we consider that it is appropriate to determine the present summons on paper without holding an oral hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“RHC”).

10.Order 2 rule 4 of the RHC requires any application for relief from sanction be made within 14 days of the failure.  The applicant was 19 days late when she filed the present summons.  In considering whether to extend time to apply for relief from sanction, the court will consider all relevant factors, particularly the length of delay, reasons for the delay, merits of the proposed application for relief from sanction and the degree of prejudice to the other party (Bruce James Stinson v Gu Ming Gao [2019] HKCFI 43 at §144.

11.The applicant stated that she did not receive the letter from the court and was unaware of the Unless Order.  She explained that although the address stated in the letter is correct, she did not receive the letter because the building she is residing in is an old building, with most of the letter boxes damaged and letters often get misplaced.  She asserted that she only became aware that her appeal was dismissed when she attended the Immigration Department on 5 March 2026[2]. She then sent a letter to court on 6 March 2026 seeking to reinstate her appeal before filing the present summons on 17 March 2026.  She also filed a notice of change of address for service on 17 March 2026 to provide an address which enables her to receive correspondence in future.

12.The letter dated 29 January 2026 informing the applicant of the Unless Order was sent to the applicant by registered post.  It was subsequently returned to the court by the post office.  In these circumstances, we accept that the applicant might not be aware of the Unless Order at the material time.  However, even if we accept that she may have reasonable excuse for the delay in taking out the present application, we would still have to consider the merits of the relief application. 

13.Under Order 2 rule 5(1) of the RHC, when dealing with an application for relief from the sanction imposed by the failure to comply with a court order, the court shall consider all the circumstances, including, among other things, the interests of the administration of justice, whether the failure to comply was intentional and whether there is a good explanation for the failure to comply.  

14.As the applicant was unaware of the Unless Order at all material times, we take the view that her failure to comply was not intentional and was justifiable.

15.Taking into account the circumstances mentioned above as well as the question of proportionality of the sanction, we think it is appropriate to exercise our discretion to grant relief from sanction in the present case.

Order

16.We order that the time for the applicant to apply for relief from sanction imposed by the Unless Order be extended to the date of the issuance of the Summons on 17 March 2026.

17.We grant relief from the sanction imposed and order that the applicant’s appeal be reinstated on condition that the applicant complies with the Unless Order by filing an application to fix a date for hearing the appeal within 14 days from the date of this judgment.

18.As the respondent has taken a neutral stance in the present application and has not filed any affirmation and submissions in response, we make an order nisi that there be no order as to the costs of this application.

The Applicant (Appellant), acting in person