YOLMO DEECHEN LAMU v. DIRECTOR OF IMMIGRATION

HCAL 1287/2024

[2024] HKCFI 3438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1287 OF 2024

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D E C I S I O N

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A.  Introduction

1.  By her Form 86 dated 6 August 2024, the Applicant seeks leave to apply for judicial review so as to challenge two decisions (together “Decisions”) made by the Director of Immigration (“Director”):

(1)  The Director’s decision dated 30 May 2022, vitiating the permissions of stay granted to her previously 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 her application for stay in Hong Kong as a dependant (“Refusal Decision”).

2.  By my directions given on 9 August 2024, I gave leave to the Putative Respondent to file an Initial Response to the application by 9 September 2024, and leave to the Applicant to file a Reply to that Initial Respondent by 7 October 2024. My directions also indicated that I would decide after receiving those documents whether to deal with the application for leave to apply for judicial review on paper, and if so that I would proceed to do so without further notice to the parties.

3.  The Initial Response dated 9 September 2024 was served by Mr Rex Cheung, Senior Government Counsel, together with Ms Angie Liu, Government Counsel, of the Department of Justice, for the Director. In short, the position of the Director is that leave should be refused on various bases. The Applicant filed her Reply to the Initial Response on 7 October 2024.

4.  Having reviewed the materials, I am satisfied that it is appropriate to deal with this application on the papers.

5.  This is my Decision.

B.  Factual Background

6.  This case comes about against the following factual background, much of which has been helpfully summarised in the Initial Response.

B.1  The dependant visa application and 1^st and 2^nd extensions of stay

7.  The Applicant is a national of India. She was born in February 1988.

8.  On 5 December 2009, she entered Hong Kong on the strength of an entry visa for employment as a foreign domestic helper (“FDH”) approved on 18 November 2009, and was allowed to stay as a FDH until 5 December 2011, or two weeks after termination of the FDH employment contract, whichever was earlier.

9.  The Applicant and Mr Leung filed a Notice of Intended Marriage on 1 June 2011. Mr Leung declared his marital condition as “bachelor” in the Notice. Their marriage was solemnised in Hong Kong on 25 June 2011.

10.  On the basis of the marriage, the Applicant submitted an application on 22 July 2011 for a change of her immigration status as the dependant of Mr Leung as sponsor.

11.  The application was made under the Dependant Policy of the Immigration Department (“ImmD”), which states that for a sponsor who is a Hong Kong permanent resident or resident not subject to a limit of stay, his/her spouse may join him/her for residence in the HKSAR as a dependant. An application for admission of a dependant may be favourably considered if, among other things, there is reasonable proof of a genuine relationship between the applicant and the sponsor, meeting an eligibility criterion. The applicant should also meet normal immigration requirements in addition to the relevant specific eligibility criteria under the Dependant Policy. Extension of stay applications will be considered when the applicant continues to meet the eligibility criteria for residence as a dependant of the sponsor.

12.  The dependant visa application was approved by the Director on 25 April 2012, and the Applicant was given permission to stay in Hong Kong as Mr Leung’s dependant until 25 April 2013.

13.  The Applicant’s 1^st and 2^nd applications for extension of stay as a dependant submitted on 25 April 2013 and 28 March 2014 were approved. The permission of stay as a dependant 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, who declared that he was willing to be the spouse sponsor.

B.2  Alleged Other Marriages of Mr Leung and ImmD’s Investigation

14.  On 17 March 2015, ImmD received information from the Exit and Entry Administration of the Public Security Bureau of Hainan Province (“Hainan Authorities”) that an application for a one-way permit was received by the Hainan Authorities from a Ms Zhou Chan (“Ms Zhou”) to join Mr Leung as his spouse for residence in Hong Kong, with a copy of a Mainland marriage certificate showing that Mr Leung and Ms Zhou married in the Haikou city, Hainan province, China on 2 June 2011 (“1^st Marriage”).

15.  In response to the information received from the Hainan Authorities, ImmD found from their record that shortly after the 1^st Marriage, Mr Leung, who had declared his marital condition as “bachelor”, married the Applicant in Hong Kong on 25 June 2011 (“2^nd Marriage”).

16.  ImmD conducted a further record check and found that (1) on 29 July 2014, in his application for a replacement of Hong Kong permanent identity card (“HKPIC”), Mr Leung declared that his marital status was “married” and stated that the name of his spouse was “陳泳兒” (transliteration, “Chan Wing Yee”); and (2) there was no record showing that Mr Leung had ever married or divorced “Chan Wing Yee” or any other person.

17.  In September 2015, ImmD notified the Hainan Authorities of the irregularity regarding the marriage of Ms Zhou.

18.  As there was no information showing that the 1^st Marriage was legally dissolved, ImmD suspected that the 1^st Marriage with Ms Zhou was still subsisting when Mr Leung solemnised the 2^nd Marriage with the Applicant, and therefore conducted further investigation into the case. Upon further investigation, it was found that Mr Leung, via China Legal Service (HK) Ltd (“CLSHKL”), applied to the Mainland authorities to marry Ms Zhou. In October 2015, CLSHKL replied to ImmD that Mr Leung had applied to marry Ms Zhou on 24 May 2011, and there was no record of any marriage having taken place between Mr Leung and any other person as at 24 May 2011.

19.  The information about the 1^st Marriage was not known to ImmD until the Hainan Authorities informed ImmD in 2015 and upon ImmD’s verification with CLSHKL during the investigation into the matrimonial relationship in October 2015.

20.  On 29 August 2016, upon her arrival clearance in Hong Kong, Ms Zhou was intercepted and interviewed under caution by ImmD about the 1^st Marriage. She claimed that she and Mr Leung married in Hainan province, China on 2 June 2011 and that it was a genuine marriage, but she declined to provide further details about their relationship.

21.  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 remained silent during the interview.

22.  On 11 March 2019, Mr Leung applied for a new smart HKPIC and declared that his marital status was “separated”.

23.  On 1 June 2019, the Applicant was interviewed under caution by ImmD for the alleged problematic 2^nd Marriage and 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 chose to remain silent under caution.

B.3  The Applicant’s 3^rd and 4^th extensions of stay

24.  As the investigation into the marriage between the Applicant and Mr Leung had not been concluded, the benefit of the doubt was given by ImmD to the Applicant, and her 3^rd and 4^th applications for extension of stay submitted on 13 February 2017 and 5 March 2019 (in which she declared that there was no change in her matrimonial relationship with Mr Leung and Mr Leung stated that he was willing to be the spouse sponsor) were granted with a limit of stay until 23 May 2019 and 23 May 2022 respectively. This was on the basis that the 2^nd Marriage was then still considered to be lawful and valid.

B.4  The Vitiation Decision and Refusal Decision

25.  Subsequently, on the basis of the information from the Hainan Authorities and ImmD’s findings suggesting that the 1^st Marriage was still subsisting and had not been dissolved when Mr Leung solemnised his 2^nd Marriage with the Applicant on 25 June 2011, the Director took the view that: (1) on the balance of probabilities, the 2^nd Marriage was a bigamous one and should be regarded as void; and (2) the permissions of stay previously given to the Applicant as a dependant 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 the false representation that the Applicant was the wife of Mr Leung in a lawful marriage.

26.  By letter dated 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 her representations as to why the previous permissions of stay granted should not be vitiated. ImmD received the representations from the then legal representative of the Applicant on 7 July 2020 and 12 November 2020, and issued an interim reply on 13 November 2020.

27.  By letter dated 13 May 2021, ImmD invited the Applicant to make further representations on the 1^st Marriage of Mr Leung and his relationship with his alleged spouse “Chan Wing Yee”. On 23 June 2021, ImmD received a reply from the then legal representative of the Applicant that they had no instructions from Mr Leung in respect of the alleged marriage with “Chan Wing Yee”; that the Applicant had no knowledge of the matters regarding any previous marriage of Mr Leung; that she had a legitimate expectation arising from the permissions of stay previously granted to her; and that the Director was requested to consider exercising discretion in granting her permission of stay on compassionate grounds and/or an exceptional basis. The letter also pointed out that a decision had been made not to prosecute Mr Leung, on the basis that there was insufficient evidence to do so, and it would therefore appear self-contradictory to vitiate the Applicant’s stay in Hong Kong due to a factual allegation thought to be insufficiently substantiated.

28.  The Applicant also submitted her application to ImmD on 6 April 2022 for a 5^th extension of stay as a dependant of Mr Leung.

29.  The Director made the Vitiation Decision on 27 May 2022 notified by letter on 30 May 2022, and the Refusal Decision on 5 June 2022 notified by letter on 6 June 2022. Each letter respectively briefly explained the reasons for the Decisions.

30.  Those reasons are also to be found in the Internal Minutes (being M.13 and M.1 respectively), evidencing the way in which the decision-making was considered.

B.5  The Applicant’s Application for HKPIC

31.  ImmD received the Applicant’s application for verification of eligibility for permanent identity card (“VEPIC”) on 23 May 2019, and refused the application on 15 June 2022 on the ground that the previous permissions of stay granted to the Applicant were vitiated and thus she did not satisfy the requirements under paragraph 2(d) of Schedule 1 to the Immigration Ordinance Cap 115 for claiming Hong Kong permanent resident status.

32.  The Applicant submitted her application for an HKPIC on 23 June 2022, and this was refused by ImmD on the ground that there was insufficient evidence to show that she had the right of abode in Hong Kong. She filed a Notice of Appeal dated 25 July 2022 to the Registration of Persons Tribunal against the decision of the Commissioner of Registration to refuse to issue an HKPIC to her. The appeal is under processing, and no hearing date has been fixed.

B.6  The Applicant’s Petition under Article 48(13) of the Basic Law

33.  On 25 July 2022, the Applicant filed a petition to the Chief Executive against the Vitiation Decision under Article 48(13) of the Basic Law (“Petition”). The power to consider the Petition and to make a decision on it was delegated to the Secretary for Security (“S for S”). Representations and submissions were made by the Director and the Applicant.

34.  The Applicant provided in support, inter alia, a letter dated 29 January 2024 from Mr Leung stating that he did not get married to anyone except the Applicant. On 17 July 2024, the S for S upheld the Vitiation Decision.

35.  On 6 August 2024, the Applicant filed this application for leave to apply for judicial review. She is acting in person, and in her Reply to the Initial Response said that she could not obtain legal aid until leave to apply for judicial review has been granted, but that she had reasonable grounds for the grant of leave.

C.  Grounds of Review

36.  It is trite that in an application for leave to apply for judicial review, the applicant needs properly to identify a specific and proper ground of review, namely by the identification of an alleged public law wrong. This is a mandatory requirement of RHC Order 53 rule 3(2)(a), and a failure to comply with that rule is itself a reason to refuse leave to apply for judicial review. As has been stated on many previous occasions, it is not for the Court to seek to identify or devise potential grounds of review when none are identified by the applicant.

37.  Although not clearly identified in her Form 86 and Affirmation dated 6 August 2024 (“Affirmation”), the Applicant’s allegations are apparently discernible. In a way with which I agree, Mr Cheung has summarised the grounds as follows:

(1)  Ground 1: The Director’s Decisions are unfair and inaccurate.

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

(3)  Ground 3: There is no concrete evidence of Mr Leung’s 1^st Marriage.

(4)  Ground 4: Legitimate Expectation.

38.  Though there is some degree of overlap between them, I can deal with each of the Grounds in turn.

D.  Legal Context

39.  Before doing so, I can usefully set out some relevant legal principles relating to visa applications and extensions of stay, which were addressed in my recent decision in Faisal Muhammad and Others v Director of Immigration [2024] HKCFI 2579 at §§41-46 and are also applicable to the present case as follows.

40.  It is settled – see, for example, BI v Director of Immigration [2016] HKCA 89 at §92 – that:

(1)  It is appropriate and necessary for the maintenance of its suitability for Hong Kong to adopt restrictive immigration policies and practices.

(2)  The Court is not equipped with the necessary information or tasked by the law to carry out the responsibility of the Director.

(3)  Nevertheless, the Court retains a supervisory jurisdiction over the Director’s exercise of the power of immigration control.

(4)  If the Director fails to take relevant considerations that are legally required to be taken into account, or takes into account irrelevant considerations which he legally should not take into account, the decision would not be valid.

(5)  The Court can also intervene where the Director does not act fairly in the decision-making process.

(6)  The Court may also intervene where the decision is found to be Wednesbury unreasonable or irrational.

(7)  An important consideration in the application of the principle of legality in the Hong Kong immigration context is the reservation in section 11 of the Hong Kong Bill of Rights Ordinance, providing that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong.

41.  It is also trite, and no authority is needed for the proposition, that decisions are to be made by the decision-maker to whom the legislature has entrusted that function, including any relevant fact finding function. It is the duty of the Court to leave decisions of fact to the decision-maker, unless it is obvious that the public body has acted perversely, or in breach of some other public law requirement.

42.  Another way of putting it is that the Court exercising its judicial review jurisdiction does not reach its own conclusion on the primary facts, and should accept apparently tenable conclusions (including conclusions as to credibility). But the Court retains powers to intervene where there was unsatisfactory treatment of facts by the decision-maker, such as where the finding of fact was irrational or perverse, or unsupported by evidence, or was plainly untenable, or where irrelevant factors were taken into consideration or relevant factors were not considered or were misunderstood.

43.  It is the burden of the person seeking permission to reside in Hong Kong to show such facts as might persuade an immigration officer that his circumstances are such as to fall within a policy adopted by the Director. It is not for the Director to have to show that an applicant or an application falls outside the policy.

44.  I would add that, though it may be that the Director from time to time seeks further information than is originally provided in support of an application, that does not create some ongoing obligation on the Director to continue to seek materials. The burden remains on the applicant to establish such facts as might persuade the Director that the grant of the permission sought by the application is appropriate – and the Director is entitled to form a view, and to make his decision, on the materials provided.

45.  It is also settled that each application for such a visa must depend on its own facts. It is a wrong premise to assume that the previous grant of a visa creates some sort of precedent binding on the Director in relation to a subsequent application.

E.  Ground 1: Whether the Decisions are unfair and inaccurate

46.  The Applicant’s complaint under this Ground is that:

(1)  The Decisions of the Director are inaccurate and unfair as the Director failed to disclose all details of the 1^st Marriage to her and to consider the effects of the Decisions on her.

(2)  The Director failed to take into account various relevant considerations, including the following personal circumstances: (a) the Applicant has been in Hong Kong for over 13 years; (b) she has built a family and social support structure in Hong Kong; (c) she does 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 has taken Hong Kong as her only place of residence (“Personal Circumstances”).

47.  Mr Cheung submitted that there is no procedural unfairness and no inaccuracy in the decision-making process of the Director. The submissions as set out in the Initial Response are in summary that:

(1)  By letters dated 26 May 2020 and 13 May 2021, the Director provided the details of the 1^st Marriage to the Applicant. The Applicant and her then legal representative knew that the permissions to stay in Hong Kong previously granted to the Applicant were vitiated as the Director, based on the evidence and on the balance of probability, reached the conclusion that the 2^nd Marriage was bigamous and void, such that Mr Leung was not eligible to be the Applicant’s sponsor in her previous applications for change of status and extension of stay under the Dependant Policy.

(2)  The Applicant and her then legal representative had been invited to make representations, and had made meaningful representations.

(3)  The claim that the Personal Circumstances of the Applicant are relevant considerations under the Dependant Policy is misplaced. It is not reasonably arguable that the Decisions were Wednesbury unreasonable if the Applicant’s Personal Circumstances, which were at most compassionate and humanitarian considerations, had been taken into account. It is trite that in the immigration context, the Director, in exercise of his wide discretion in respect of immigration matters, is not obliged to take into account compassionate or humanitarian considerations: Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 330 D-F.

(4)  If the Director takes compassionate and humanitarian factors into account, although he has no such duty, it is up to the Director to decide how much weight is to be put on those factors (subject only to judicial review oversight): the BI case at §§104-105.

(5)  In a Wednesbury challenge against the decision-maker’s assessment of the relevance of various matters and the weight to be attached to them, the Court will give a wide margin of appreciation to the decision-maker’s views given (a) the very broad nature of the discretion, (b) the high policy context on immigration matters, and (c) the fact that the Court does not have the relevant expertise in immigration matters: PVQ v Permanent Secretary for Security [2021] HKCA 444 at §59.

(6)  It is a very high hurdle for challenging the decision-maker’s decision on Wednesbury grounds in relation to compassionate or humanitarian considerations. In any event, the Director did take into account the Personal Circumstances of the Applicant. Upon her failing the eligibility criteria of the Dependant Policy, it was open to the Director to decide not to exercise the discretion to permit the Applicant to remain in Hong Kong.

48.  I accept Mr Cheung’s submissions. On the facts of the case and looking at the correspondence between the Applicant and the Director as a whole, there is no evidence suggesting that the Director had made any error of law, nor there was any procedural unfairness.

49.  In particular, in respect of the intended vitiation of permissions of stay, the Applicant’s then legal representative had made representations by its letters dated 7 July 2020 and 23 June 2021 in response to the Director’s invitations to do so. It can be noted that whilst the earlier invitations were more general in nature, by letter of 13 May 2021 the Director specifically sought explanations in relation to: (a) Mr Leung’s declaration on 29 July 2014 that his marital status was “married” and the name of his spouse was Chan Wing Yee; (b) the difference between the Applicant’s declarations in March and May 2019 that she was “married” to Mr Leung, whereas Mr Leung declared his marital status as “separated” upon his application for Hong Kong identity card on 11 March 2019; and (c) Mr Leung’s application to marry a Mainland resident in May 2011 via CLSHKL, and his solemn rising marriage with a Mainland resident on 2 June 2011 in the Mainland. In other words, the specific points were identified and invited to be addressed.

50.  The representations received were set out and considered by the Director (as recorded in the Internal Minutes M.13) prior to making the Vitiation Decision.

51.  Of course, I recognise that different persons might take a different view as to whether the Personal Circumstances relied upon by the Applicant could or should justify the grant of permission to stay on an exceptional basis – perhaps particularly if those circumstances are considered in a vacuum. But, the Director is tasked with making individual decisions in light of the overall policies relating to immigration, and I do not think that it is reasonably arguable that the Decisions were so far outside the range of reasonably possible decisions as would lead to a conclusion that they were irrational or Wednesbury unreasonable.

52.  Therefore, I see no reasonably arguable illegality, procedural unfairness and irrationality in the Decisions.

53.  Ground 1 fails.

F.  Ground 2: Whether irrelevant considerations taken into account

54.  The gist of the Applicant’s criticism underpinning Ground 2 is 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.

55.  In the Initial Response, Mr Cheung submitted that this Ground is not reasonably arguable because:

(1)  The Director did not make the Decisions based on the absence of an explanation from the Applicant and Mr Leung.

(2)  Instead, the Director made the Decisions on the basis of positive evidence that the 2^nd Marriage is a bigamous one.

(3)  The information and the Mainland marriage certificate of the 1^st Marriage provided by the Hainan Authorities is strong evidence suggesting that the 2^nd Marriage is bigamous.

(4)  The Director is entitled to rely on the documents from the Mainland authorities without second-guessing how such information was obtained and why there was a previous marriage subsisting: 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.

(5)  There is no factual basis for the assertion that the Director had drawn any adverse inference or made an issue of the fact that the Applicant and Mr Leung exercised their right of silence under caution.

(6)  The Applicant and her then legal representative had been invited to make representations on Mr Leung’s other marriages, and they did.

56.  I agree with those submissions. On the facts of the present case as traversed above, there is no merit in the suggestion that the Director took account of an irrelevant consideration. On the contrary, whether there is any previous subsisting marriage of Mr Leung is a relevant factor that the Director should take into consideration in making the Decisions, because a dependant visa (and any subsequent extension of stay) should be granted only if there is a valid marriage between an applicant (i.e. the spouse dependant) and the sponsor.

57.  Therefore, Ground 2 as put forward by the Applicant is not reasonably arguable with any realistic prospect of success.

G.  Ground 3: Whether concrete evidence of 1^st Marriage

58.  Under Ground 3, the Applicant also alleges that:

(1)  Mr Leung had confirmed that he had never married anyone except the Applicant. There was no concrete evidence as to whether Mr Leung had married anyone before the 2^nd Marriage. So, the benefit of the doubt should be given to the Applicant.

(2)  A decision had been taken not to prosecute Mr Leung due to insufficient evidence.

(3)  Further, ImmD failed to bring up the 1^st Marriage until April 2019 (and had granted various extensions of stay in the interim).

59.  The submissions of Mr Cheung in response to Ground 3 are in summary that:

(1)  There is strong evidence in the form of the information and the Mainland marriage certificate provided by the Hainan Authorities that there was a subsisting 1^st Marriage solemnised in the Mainland on 2 June 2011 before the 2^nd Marriage was solemnised in Hong Kong on 25 June 2011.

(2)  After considering all evidence in the circumstances on a balance of probabilities, the Director was entitled to reach the view underpinning the Decisions.

(3)  It was reasonable for the Director to give no or little weight to the evidence of Mr Leung that he has only married the Applicant, as he is not reliable and gave inconsistent information in respect of his marriage condition on different occasions.

(4)  The Applicant’s alleged lack of knowledge about the 1^st Marriage is of no relevance to the legality of her entry and stay in Hong Kong. The permissions of stay previously granted to the Applicant were based on the false information that the 2^nd Marriage was lawful and valid, but it was since found and considered to be bigamous and void.

(5)  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.

60.  I accept those submissions. On the facts of the present case and looking at the contemporaneous documents, I do not think that the Director has committed any error of law in the analysis and in reaching the conclusion that the 2^nd marriage is bigamous and void. 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).

61.  Ground 3 is not reasonably arguable and therefore also fails.

H.  Ground 4: Whether Legitimate Expectation

62.  As regards the alleged legitimate expectation to stay in Hong Kong on the basis of the permissions to stay previously granted to her, the Applicant submitted that:

(1)  If ImmD had informed her of the 1^st marriage in 2015, it would have saved her around 9 years, and she could have planned her life better.

(2)  The assertion of ImmD that they were unable to locate her was totally unacceptable.

63.  In response, Mr Cheung submitted that:

(1)  It is trite that legitimate expectation cannot render something which is unlawful to become lawful: Ma Chi Ching v Director of Immigration [2015] 1 HKLRD 1138 at §§16-17. The permissions of stay previously granted to the Applicant do not per se give rise to a legitimate expectation since they were granted on the basis of the false representation that the 2^nd Marriage was lawful and valid.

(2)  Time was required by ImmD to conduct a thorough investigation between 2015 and 2019. While the criminal investigation remained to be completed, the benefit of the doubt had been given to the Applicant in granting the 3^rd and 4^th extension of stay.

(3)  Whether the Applicant may be allowed to remain in Hong Kong outside the Dependant Policy is a matter at the discretion of the Director. Having taken into account all relevant circumstances, the decision of the Director was that it did not conform with the overall immigration policy to allow the Applicant to stay, nor were there any exceptional circumstances to justify a different conclusion.

64.  As pointed out by Mr Cheung in the Initial Response, ImmD only became aware of the information about the alleged 1^st Marriage from the Hainan Authorities, and that is what then prompted the start of 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 doubt given to the Applicant.

65.  In the present case, it seems to me that an argument, in reliance on legitimate expectation, amounts to the suggestion that once accepted, always accepted. But, that is a bad submission. A previous approval does not form any sort of precedent binding on the Director. There was no representation made by the Director to the Applicant that she could expect the permissions of stay would not be affected by subsequent decisions of the Director.

66.  I do not find the ground of legitimate expectation to be reasonably arguable.

I.  Delay

67.  Though not a point taken by Mr Cheung on behalf of the Director, it is appropriate to note that the Applicant seeks leave to apply for judicial review to challenge to decisions made in May and June 2022, but the application was only made in August 2024, more than two years later.

68.  Under the applicable rules, an application for leave to apply for judicial review should be made promptly and in any event within three months of the date of the impugned decision, unless an extension of time is sought and obtained. The long stop period in this case would have expired before the end of September 2022, still almost 2 years before the application was issued.

69.  No actual application for extension of time has been made. But I think the Applicant’s offered explanation for the delay is to be found in her first affirmation, when she stated that she was unaware of the procedure that she could have made an application for leave to apply for judicial review at the same time as making her Petition under Article 48(13) of the Basic Law.

70.  In any event, on any consideration for an application for extension of time, it would be necessary to take into account the apparent merits of the proposed application for which time might be extended. As indicated above, I see no reasonably arguable grounds of review.

71.  Therefore, merely as a matter of being complete, I would say that I would not have granted an application for extension of time from making this intended judicial review challenge.

J.  Result

72.  The Applicant having failed to identify any reasonably arguable grounds of review with a realistic prospect of success, the Applicant’s application for leave to apply for judicial review is dismissed.

73.  However, in the exercise of my discretion, I make no order as to costs.