Umiri Hidayani v. Hong Kong Sar Government

HCAL 1437/2025

[2025] HKCFI 3710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1437 OF 2025

_____________

BETWEEN

_____________

_____________

DECISION

_____________

1.Introduction

1.1The Applicant is subject to a Removal Order dated 25 January 2016. She has been held in immigration detention since 23 April 2025 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, she has been detained for 118 days.

1.2This is my decision on the Applicant’s application for a writ of habeas corpus filed on 23 June 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Mr Mike Yau, Government Counsel, appeared for the Director of Immigration (“Director”).

2.Background

2.1The Applicant is an Indonesian national. She arrived in Hong Kong on 5 November 2015 to work as a foreign domestic helper. Her employment contract was terminated on 18 December 2015 and she was required to, but did not, leave Hong Kong by 1 January 2016. She has overstayed since 2 January 2016.

2.2The Applicant’s passport expired on 14 October 2016.

2.3On 6 January 2016, the Applicant was arrested by the police for being a suspected overstayer. She was later subject to immigration detention and subsequently released on recognizance on the 19 February 2016.

2.4On 20 December 2024, she was convicted of trafficking in dangerous drugs and she was subsequently sentenced to 3 months’ imprisonment on 9 January 2025.

2.5Upon her discharge from prison on 17 February 2025, the Applicant was transferred to immigration detention. She was thereafter released on recognizance on 12 March 2025.

2.6On 23 April 2025, the current detention commenced upon the cessation of her recognizance.

2.7The Applicant has a boyfriend, Mr Ansib Mahmood, who is a Hong Kong permanent resident and willing to act as a guarantor for her release. According to the Applicant, she wishes to marry Mr Mahmood. In support of the present application, Mr Mahmood’s bank statement dated 30 April 2025 is produced which shows that Mr Mahmood is financially capable to support the Applicant.

3.Non-refoulement claim (“NRC”) and related proceedings

3.1The Applicant’s NRC was rejected by the Director on 29 August 2018. Her subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 8 October 2019 (“TCAB Decision”).

3.2On 14 October 2019, the Applicant applied for leave to apply for judicial review against the TCAB Decision (HCAL 3021/2019).

3.3Following the commencement of the present detention, the Department of Justice requested the court to accord priority to HCAL 3021/2019. On 30 July 2025, the Court of First Instance dismissed HCAL 3021/2019.

4.The present detention and its reviews

4.1As the Applicant’s passport had expired in October 2016, even prior to the commencement of the present detention, efforts were made to liaise with the Consulate General of the Republic of Indonesia (“CG”) for the issuance of a replacement travel document.

4.2Throughout the present detention, the Applicant has persistently expressed her unwillingness to return to her home country and refused to render her cooperation in completing the reentry formalities. Were the Applicant to cooperate with the reentry formalities, the replacement travel document would have been issued in around 2 weeks’ time.

4.3The Applicant’s detention was last reviewed on 23 July 2025. Her release from detention was considered to be unwarranted by reason of the following broad grounds:

(1) The Applicant’s removal was going to be possible within a reasonable time;

(2) The Applicant posed, or was likely to pose, a threat or security risk to the community;

(3) The Applicant might abscond and/or (re)offend;

(4) There were no other circumstances in favour of the Applicant’s release.

5.The Applicant’s submissions

5.1In her written materials, the Applicant puts forward the following grounds:

(1) At the time of the commencement of the present detention, HCAL 3021/2019 had not been determined, and even were the result unfavourable, she has further avenues to continue with her legal challenge;

(2) She fears for her safety if repatriated to her home country;

(3) She does not have any “major” criminal record, in particular any previous transgressions associated with violence;

(4) She plans to get married to Mr Mahmood and her fiancée is prepared to stand as surety (HK$10,000);

(5) The length of her detention has become unreasonable;

(6) She promises she will not (re)offend or abscond and will comply with the conditions imposed for her release;

(7) She is suffering from emotional and psychological trauma from being unlawfully detained.

5.2At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of her application. The only matter which she supplemented was her desire to be released.

6.The applicable principles

6.1The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

6.2I remind myself that the burden is on the Respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

6.3Under Section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person's entry to that place and (4) factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

6.4The Court of Appeal has provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee's own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention. It is stated at §29(3):

"In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee's own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles."

7.Analysis

7.1During the present detention, the Applicant is and has been detained pursuant to section 32(3A) of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 118 days, against which the various other factors must be weighed and balanced.

7.3I accept that, throughout the period of detention, the intention of the Director is to remove the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied. I also accept that the Director has acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. The foregoing is amply demonstrated by the matters adumbrated above, including the efforts made expedite the resolution of HCAL 3021/2019 and the efforts made to liaise with the CG to issue a replacement travel document to the Applicant, despite her refusal to cooperate in completing the reentry formalities.

7.4As at the commencement of the present detention, there were both legal and practical impediments to the Applicant’s removal. The legal impediment has since been removed with the resolution of HCAL 3021/2019. The Applicant’s understanding that any further legal challenges to the higher courts would create a legal impediment is erroneous by reason of the Updated Removal Policy. The practical impediment caused by the lack of a travel document has remained due to the Applicant’s own behaviour.

7.5In this regard, the following observations in Johnson Benjamin are apposite:

“[37] Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba) are necessarily correct. In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of. In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.”

7.6Properly analyzed, whilst it is true that HCAL 3021/2019 was still ongoing as at the commencement of the present detention, efforts were made to expedite its resolution and I do not regard the assessment that the Applicant’s removal was possible within a reasonable time was unreasonable. In any event, during the pendency of the resolution of HCAL 3021/2019, as has been observed in Johnson Benjamin, the concurrent refusal of the Applicant to cooperate with the reentry formalities was unreasonable.

7.7Although the Applicant was convicted of trafficking in dangerous drugs, I note that the period of imprisonment was not lengthy. Given the “light” criminal record, I am prepared to proceed on the basis that the nature of the Applicant’s previous conviction does not give rise to a serious concern that she poses a threat or security risk to the community. However, there remains a risk of (re)offending, which risk, if materializes, may delay her removal by reason of consequential investigations and potential court proceedings.

7.8Perhaps more significantly, I accept Mr Yau’s submission that there is a real risk of the Applicant absconding, which risk, if materializes, will defeat the purpose for which the power for detention is conferred. I do not regard the offer of a guarantor and the Applicant’s own promise not to abscond have the effect of outweighing the risk of absconding.

7.9I acknowledge the Applicant’s wish to be married to Mr Mahmood. By analogy to the observations made in Gilbert, Muasa Nthale alias Nthale Gilbert Muasa v Director of Immigration & Anor [2023] HKCFI 2519 §§45-46, the simple fact is that the Applicant is liable to be removed under the valid and extant Removal Order. The “family” circumstances are of rather little weight in light of the other factors. In any event, I was informed by the Applicant that she started the relationship with Mr Mahmood in 2021, and the intended marriage is a decision made long after the making of the Removal Order, and must have been contemplated by the Applicant (and very probably Mr Mahmood) with eyes wide open to that fact.

7.10In relation to the Applicant's claimed emotional and psychological trauma, there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained. In any event, the Applicant's medical condition does not have the effect of altering her continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.11Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.Conclusion

8.1By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention has been and will remain lawful.

8.2I therefore dismiss the present application with no order as to costs.

The Applicant, acting in person

Mr Mike YAU, Government Counsel, of Department of Justice, for the Respondent