Gurung Govinda v. Hong Kong Sar Government

HCAL 1516/2025

[2025] HKCFI 3920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1516 OF 2025

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D E C I S I O N

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A.  Introduction

1.I have before me an application for writ of habeas corpus by the Applicant filed on 2 July 2025 seeking his release from Castle Peak Bay Immigration Centre (“CIC”) where he has been detained since 16 January 2025 (“the Application”). The period of detention to date is 224 days (“the Detention”).

2.On 4 July 2025, I directed the named respondent to the Application inter alia to lodge and serve a response to the Application and the Applicant’s Affirmation in support of the Application. A Response/Skeleton Submissions for the Respondent dated 12 August 2025 (“the Response”) has been lodged.

3.At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter. He has confirmed that he has been served the Response and a bundle of documents prepared by the Department of Justice acting on behalf of the Respondent.

4.This is my Decision having heard the oral submissions of the Applicant and Miss Ngai, Senior Government Counsel, appearing for the Director of Immigration (“the Director”).

Background

B1.  Immigration status and stay in HK

5.The Applicant is a Nepali national born on 17 September 1988.

6.On 2 January 2014, the Applicant arrived in Hong Kong on the strength of his Nepali passport and was permitted to remain as a visitor until 9 January 2014. He did not depart and had overstayed in Hong Kong since 10 January 2014.

7.On 2 April 2015, the Applicant surrendered to the Immigration Department (“ImmD”).

8.On 27 April 2016, a removal order (“RO”) was issued against the Applicant under s. 19(1)(b) of the Immigration Ordinance, Cap.115 (“IO”).

9.On 16 January 2025, the Applicant’s recognizance was ceased after a review by ImmD and he was since then detained under s. 32(3A) of IO.

B2.  The Applicant’s Non-Refoulement Claim (“NRC”) and related legal proceedings

10.The Applicant lodged a NRC on 2 April 2015 which was rejected by the Director on 15 November 2018.

11.On 28 November 2018, the Applicant filed an appeal/petition against the Director’s refusal of the Applicant’s NRC to the Torture Claims Appeal Board/Non-refoulement Claims Petition Officer but this was rejected on 12 July 2019 (“the Board’s Decision”).

12.On 9 August 2019, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”).

13.On 27 December 2024, the JR Leave Application was dismissed (“CFI’s Decision”).

14.On 14 January 2025, the Applicant filed a Summons to apply for extension of time to appeal against the CFI Decision but was refused by the Court of First Instance on 6 March 2025.

15.On 25 June 2025, the Applicant filed a summons for leave to appeal out of time to the Court of Appeal.

B3.  Steps towards the removal of the Applicant

16.Even prior to the Detention, on 15 June 2022, the Director had written to the Consulate General of the Federal Democratic Republic of Nepal (“CG”) informing of the Director’s intention to repatriate the Applicant back to Nepal save for the Applicant’s passport had expired. The Director sought issuance of a replacement travel document as soon as possible.

17.During interviews by ImmD during the Detention (on 18 February 2025, 30 March 2025, 22 April 2025, 12 May 2025, 9 June 2025, 7 July 2025 and 30 July 2025), the Applicant expressed his unwillingness to return to Nepal and refused to comply with re-entry application formalities (filling out the travel document application form and taking photos).

18.On 25 March 2025, the Director wrote to CG informing that the Applicant was reluctant to complete the re-entry application formalities and sought alternative means to issue a travel document to him.

19.On 9 July 2025, the Director liaised with CG and it was reiterated that a completed application form duly signed and recent photo are necessary for the issuance of an emergency travel document (“ETD”) and once the formalities are met, the ETD can be issued around 2 weeks.

B4.  Reviews of Detention

20.The last review of detention was conducted by the Director on 16 July 2025. Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  The removal of the Applicant is possible within a reasonable time given the Applicant’s application for judicial review in relation to his NRC was refused by the Court of First Instance on 27 December 2024 and notwithstanding his outstanding application filed to the Court of Appeal, there is no legal impediment to his removal under the prevailing removal policy;

(2)  The Applicant has directly or indirectly prevented or delayed removal by his expressed unwillingness to return since the present detention and lack of cooperation;

(3)  Despite his uncooperative behaviour or conduct, ImmD has continued to conduct interviews with him and seek assistance with CG to seek alternative means to issue a travel document and ETD would be issued in around 2 weeks if he cooperates;

(4)  Despite the absence of previous conviction and abscondence record, given his persistent resistance to return and unreasonable behaviour to cooperate in re-entry seeking, there is a real risk of absconding; and

(5)  The local connection and length of detention have been taken into account but does not outweigh other factors against release stated above.

C.  The Applicant’s Submissions

21.In the Applicant’s Affirmation, the following submissions were made:

(1)  He has still ongoing legal proceedings pending before the Court of Appeal ;

(2)  He is not willing to go back to Nepal because his problems has not been resolved;

(3)  He does not know why he is detained, he is uneducated, and he has never committed any crimes in Hong Kong;

(4)  His passport has long expired and it will take more than a year to get verification from CG and it is not right for him to be detained for years;

(5)  The period of the Detention is longer than the risk necessary to justify it;

(6)  He has never failed to report recognizance;

(7)  He is married and his wife in Hong Kong permanent resident and she is willing to act as his surety. He has an ongoing dependant visa application; and

(8)  He will undertake not to be involved in illegal activities or break any law and will stay at an address provided by the International Social Service Hong Kong (“ISS”) and inform ImmD of any change of address and abide by all conditions imposed by the Director.

22.At the hearing, the Applicant confirmed that the preceding paragraph represents an accurate summary of his submissions save that he can stay with his wife rather than relied on the services of ISS. He further submitted to me a document of 10 pages (handwritten) which he stated was written after he received the Response (“the 10-page Document”) that he wished me to consider as well as a 1-page undated letter he had written to his case officer (“1-page Letter”) and a certificate awarded to him for successful completion of the 5^th blood donation dated 7 November 2023.

23.In the 10-page Document, apart from reciting several legal propositions and authority, the further submissions that were not included in the Affirmation are as follows:

(1)  He has a right to appeal further even if his application before the Court of Appeal is dismissed so it is not right that he has no outstanding claims and legal proceedings;

(2)  He has been obeying all rules and regulations since his arrival in Hong Kong, he has no criminal or absconding record, and if he were to abscond he would have done so and he would not do so as he is awaiting the result of his application to the Court of Appeal and dependant visa;

(3)  He has a genuine relationship with his wife but she cannot attend today due to some reason but provided her mobile number and he can provide their marriage certificate;

(4)  Although he has been interviewed by ImmD, he has been telling them at each interview that he cannot go back because his life is in danger but ImmD had even threatened to deport him forcefully;

(5)  Given his clean criminal record, he is not the person to abscond or disobey any laws and is not a threat to the community. Rather, he have been a regular blood donor and bone marrow donor;

(6)  He gave two examples of detainees in similar conditions who were recently released from detention. If they were released then why was he not being released?

24.In the 1-page Letter, the Applicant mentioned that he had been a regular blood donor and bone marrow donor. However, due to the Detention he is not able to donate. He also mentioned the deterioration in his health due to the Detention including that the vision in his eyes has been affected for over 3 months and having a headache most of the time. He says that he had sought treatment from the doctor at CIC but they are unable to give him a proper treatment and they did not send him to outside hospital for proper check up. One day, he also chewed on a chicken bone and his teeth has been broken into 3 pieces with some pieces stuck in his gum which was very painful and he was unable to chew. He also mentioned he is blood pressure is very low and because of that feels very dizzy and feel like fainting sometimes. He therefore requests to be released on recognizance so that he can receive proper treatment and then he can continue with his blood and bone marrow donation.

25.I will take into account these submissions and give them such weight in the balancing exercise as seems to me to be appropriate.

D.  Applicable Principles

26.The applicable principles to be applied in an application for habeas corpus are well-established. They were set out by the Court of Appeal in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. See in particular the summary of the principles at §164.

27.I also remind myself that the burden is on the respondents to an application for a writ of habeas corpus to justify the lawfulness of the applicant’s detention.

28.Under s.32(4A) of IO, 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, 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;

(2)  The time required for the issue of the authorization referred to in (1);

(3)  Whether the person poses, or is likely to pose, a threat or security risk to the community; and

(4)  Factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

29.Moreover, the Court of Appeal recently provided guidance in Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582 on how the court ought to approach a detainee’s own unreasonable conduct and acts which caused, necessitated or prolonged any period of detention. See 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 behaviour or conduct 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 or 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.”

30.Furthermore, at §37, it was held that even if there are ongoing NRC, 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 NRC is disposed of.

E.  Analysis

31.With the above principles in mind, I consider whether the Detention is lawful.

32.There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A) of IO which provides that in respect of a person whom a removal order is in force, he may be detained under the authority of the Director pending his removal from Hong Kong. There can be no dispute that the RO made against the Applicant is valid and extant.

33.The question which then falls for determination is whether the detention has become unreasonable in all the circumstances and hence unlawful. That question requires an assessment in accordance with the Hardial Singh principles, namely that:

(1)  The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

34.The starting point is that the period of detention to date is 224 days, against which the other factors must be weighed and balanced.

35.Contrary to the Applicant’s submissions, I do not accept that the Applicant has not been informed why he is being detained as the Notice of Detention in Nepali has been served on him. I accept that the Applicant has been detained for the purpose of his removal from Hong Kong and that the power of detention is being used only for that purpose. This is evident from the Director’s proactive efforts to seek issuance of a travel document from CG long before the Detention and the continued liaison with CG to secure the ETD during the Detention. There were also numerous interviews with the Applicant in the hope that he would express willingness to return to Nepal. Therefore HS1 is satisfied.

36.I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal. This is evident from the Director’s proactivity to seek assistance from CG, continued liaison with CG and the numerous interviews with the Applicant to seek his co‑operation. HS4 is also satisfied.

37.With no legal impediment to the Applicant’s removal and if the Applicant cooperates with the re-entry seeking arrangements, it is reasonable to think the ETD will be issued and his removal can be effected within a reasonable period (and not over a year as the Applicant submitted).

38.Insofar as the Applicant has refused and continues to refuse to cooperate with the re-entry seeking arrangements, and despite warnings that this would prolong his detention, the prolonged period of detention as a result of his unreasonable conduct should not be regarded as unreasonable or turn an otherwise lawful detention into an unlawful one. Otherwise, the more unreasonably and uncooperatively he behaves in seeking to frustrate or delay his removal, the more likely he is to be released which the Court of Appeal in Johnson Benjamin held cannot be the intention of the Hardial Singh principles.

39.Whilst the Applicants submitted that he has outstanding legal proceedings, they do not constitute legal impediment to his removal under the Government’s prevailing removal policy.

40.The fact that he has an outstanding dependency visa application is also not a ground for him to stay in Hong Kong and is not a legal impediment to his removal. His first dependant visa application was rejected on 12 March 2020 because the Director was not satisfied that the Applicant had a genuine relationship with his wife and the wife is unable to support the Applicant’s living at a standard well above the subsistence level. Although the Applicant has submitted that he has a genuine relationship with his wife, I do not believe that in an application for habeas corpus, I can look at the merits of such claims save to note the he has claimed to have connections to Hong Kong. However, as the matter now stands, his second dependency visa submitted on 28 February 2024 is still pending, without the grant of a dependant visa, he has no right to stay in Hong Kong. I also do not accept the Applicant’s bare assertion that he is not able to follow up on that application whilst being detained.

41.I also accept the Director’s assessment that despite there being no record of absconding, the Applicant’s expressed unwillingness to return to Nepal is relevant to the assessment of risk of absconding: see Ko Kang Suk v Director of Immigration & Anor [2023] HKCFI 2461 at §34. It should be noted that he is an over-stayer. If he were to abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO. The risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention. See Harjang Singh at §164(14). Even taking into account the Applicant’s claimed connections to Hong Kong and his other submissions, including his unwillingness to return is connected with his NRC, this does not totally remove all risk of him absconding. However, I do accept that the weight of this risk may vary with the length of detention but I have no reason to believe that there will not be further reviews by the Director triggered by any relevant change of circumstances.

42.Although the Applicant says that he cannot go back to Nepal because his life is in danger, as has been stated and repeated in many previous decisions, an application for habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his application for habeas corpus will not look at the merits of such claim.

43.In relation to the Applicant’s claimed physical conditions, in view of previous decided cases, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required: see e.g. Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government (Unrep) HCAL 2428/2018, 6 November 2018, per Chow J (as he then was) at §27. According to Miss Ngai, the records show that the Applicant had received treatment at CIC for back pain, tooth pain and blurred vision in February, March and April 2025. No complaints about not receiving proper treatment had been received. The Applicant confirmed that he had only written the 1-page Letter only 3 or 4 days ago and had not yet mailed it. Whilst he also says previously he had sent or passed to the welfare officer other letters, these were not produced to me prior to today’s hearing and I have no basis to believe any complaints about the Applicant’s physical conditions have not received the attention deserved.

44.Although the Applicant relied on the outcome of other detainees, the facts and circumstances of each case are different, and comparisons are simply not helpful. Miss Ngai informed me that in one case relied upon by the Applicant, the detainee was released by the Director because his dependant visa had been approved. As for the other case, the detainee was released before his application for habeas corpus was heard given that he had raised a subsequent claim and the Director, following a review of detention, took the view that there was a material change of circumstances warranting his release.

45.I do not believe that the Applicant’s other submissions can have the effect of outweighing the matters identified in the preceding paragraphs to justify his release.

46.Overall, weighing the period of detention against all other factors, HS2 and HS3 are also satisfied.

F.  Conclusion

47.By reasons of the above, I dismiss the Application with no order as to costs.

The Applicant appeared in person

Miss Karen Ngai, Senior Government Counsel of Department of Justice for the Respondent