Giri Radhe Shyam v. Director of Immigration and Another

HCAL 1801/2025

[2025] HKCFI 4300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1801 OF 2025

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BETWEEN

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DECISION

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A. Introduction

1.I have before me an application for writ of habeas corpus by the Applicant filed on 14 August 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he has been detained since 11 July 2024 (“the Application”). The period of detention to date is 432 days (“the Detention”).

2.On 19 August 2025, I directed the named respondents to the Application inter alia to lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application. The Respondents’ Response to the Applicant’s Habeas Corpus Application dated 8 September 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 (“DOJ”) acting on behalf of the Respondents.

4.This is my Decision having heard the oral submissions of the Applicant and Miss Tsang, Government Counsel, appearing for the Respondents.

B. Background

B1. Immigration status and stay in HK

5.The Applicant is a Nepali national born on 1 May 1984.

6.On 27 May 2011, the Applicant arrived in Hong Kong as a dependant of his then wife. He was granted extension of stay in Hong Kong as a dependant and his limit of stay in Hong Kong was valid until 27 March 2019. However, he did not depart nor apply for extension of stay and therefore had overstayed in Hong Kong since 28 March 2019.

7.On 10 April 2014, the Applicant was convicted of 1 count of theft (shoplifting) and was fined HK$2,000.

8.On 22 April 2016, the Applicant was convicted of 1 count of theft (shoplifting) and was fined HK$2,000.

9.On 30 April 2019, the Applicant was convicted of 1 count of theft (shoplifting) and was sentenced to 4 weeks’ imprisonment.

10.On 9 November 2020, the Applicant was convicted of 1 count of possession of dangerous drug and was fined HK$1,000, and 1 count of breach of condition of stay and was fined HK$2,000.

11.On 25 May 2022, the Applicant was convicted of 1 count of breach of condition of stay and was sentenced to 3 months’ imprisonment.

12.On 15 June 2022, a removal order (“RO”) was issued against the Applicant under s. 19(1)(b) of the Immigration Ordinance, Cap.115 (“IO”).

13.On 8 March 2024, the Applicant was convicted of 1 count of theft and was sentenced to 8 months’ imprisonment.

14.Upon and since discharge from prison on 11 July 2024, the Applicant was detained.

15.On 20 September 2024, a deportation order (“DO”) was issued against the Applicant under s. 20(1)(a) of IO.

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

16.The Applicant lodged a NRC on 26 May 2022 which was rejected by the Director of Immigration (“the Director”) on 18 August 2022 (“the Director’s Decision”).

17.On 1 September 2022, the Applicant filed an appeal/petition against the Director’s Decision but this was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Officer on 16 October 2023 (“the Board’s Decision”).

18.On 27 August 2025, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”).

19.On 2 September 2025, the Department of Justice on the instructions of the Immigration Department (“ImmD”) wrote to the High Court to request for priority to be given to the JR Leave Application.

B3. Steps towards the removal of the Applicant

20.Even prior to the Detention, on 28 September 2022, ImmD had written to the Consulate General of the Federal Democratic Republic of Nepal in Hong Kong (“CG”) to request for the issuance of a replacement travel document (“RTD”).

21.On 20 December 2023, ImmD followed up with CG by letter.

22.When ImmD interviewed the Applicant on 7 May 2024, he acknowledged that all his NRC and related appeal/petition had been refused but raised objection against being deported.

23.On 13 May 2024, ImmD wrote to CG informing that upon discharge from prison, save that the Applicant’s passport was lost, it was intended to deport the Applicant back to Nepal. ImmD requested issue of the necessary travel document for the Applicant’s re-entry and confirmation of his re-entry at the earliest convenience.

24.By email dated 14 May 2024, ImmD further requested CG to confirm the Applicant’s identity for his deportation to Nepal. CG replied on the same day confirming that the Applicant was a Nepalese citizen or passport holder.

25.During interviews by ImmD during the Detention (on 7 August 2024, 8 August 2024, 9 October 2024, 18 October 2024, 1 November 2024, 21 November 2024, 3 December 2024, 9 January 2025, 6 February 2025, 21 February 2025, 19 March 2025, 15 April 2025, 17 April 2025, 24 April 2025, 20 May 2025, 23 May 2025, 19 June 2025, 15 July 2025, and 18 August 2025), the Applicant expressed his unwillingness to return to Nepal and refused to comply with re-entry application formalities (to complete the RTD application form, take photos and attend interview with CG). He was explained that his uncooperativeness would prolong and impede his removal.

26.On 4 October 2024, ImmD wrote to CG informing that the Applicant was reluctant to complete the application formalities and sought alternative means to issue a RTD to him regardless of his uncooperative attitude.

27.On 4 October 2024, CG replied that the provision of: (1) a completed application form duly signed by the Applicant; and (2) a recent photo of the Applicant are necessary if issuing a RTD.

28.On 9 January 2025, 25 February 2025, 13 June 2025 and 3 September 2025, ImmD wrote to CG to explore any possible alternative means to issue a RTD but the reply on the same day was that the provision of: (1) a completed application form duly signed by the Applicant; and (2) a recent photo of the Applicant are necessary if issuing a replacement travel document. Generally speaking, a RTD could be issued in around 2 weeks’ time after the applicant has duly completed all re-entry seeking formalities.

B4. Reviews of Detention

29.The last review of detention was conducted by the Secretary for Security (“the Secretary”) on 4 September 2025.  Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1) Throughout the Detention prior to 27 August 2025 (the filing of the JR Leave Application), there was no impediment to his removal. The JR Leave Application was filed significantly out of time. However, given that DOJ had already invited the court to accord priority to the JR Leave Application, there is no sufficient reason to believe the JR Leave Application cannot be finalized within a reasonable time;

(2) The Applicant has directly or indirectly prevented or delayed removal by his refusal to cooperate with the re-entry seeking formalities and delay in filing the JR Leave Application. ImmD has maintained liaison with CG and should the Applicant cooperate a travel document can be issued within 2 weeks;

(3) There is no indication that the Applicant had lodged any judicial proceedings in relation to the custody of his son, and according to checking with TGCI, the Applicant had not raised any request to file any application relating to his son’s custody with the Family Court during the Detention. Even if he is he had done so, his case can be handled by legal representatives and does not constitute impediment to his deportation under the prevailing removal policy;

(4) The Applicant is subject to DO on the basis of convictions of theft which is a crime of serious nature. With his multiple re-offending records, failure to comply with the terms of recognizance, coupled with his expressed unwilling to return to Nepal, there is a real risk of absconding and/or re-offending;

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

C. The Applicant’s Submissions

30.In the Applicant’s Affirmation, hand-written, which mainly rehearsed some of the applicable legal principles clearly copied from various other similar applications, in so far as relevant to his situation, essentially the following submissions were made:

(1) He has been detained since 11 July 2024;

(2) He still have on-going legal proceedings for which a hearing date has not been fixed and there is “still more legal proceedings if just in case will be close again”. There is thus no reasonable prospect of his removal being effected within a reasonable time;

(3) ImmD cannot say the JR Leave Application was improper or hopeless;

(4) As he has ongoing legal proceedings, it cannot be said that he is not co-operative or refused to complete the re-entry formalities;

(5) He goes through emotional and psychological trauma from being unlawfully detained, the unnecessary stress and pressure is affecting his physical and mental health and well-being;

(6) He had served the sentences for his past crimes, has totally rehabilitated and changed attitude so it would be wrong to believe he would re-offend;

(7) He cannot go back to Nepal because his life is still at risk;

(8) His ex-wife is a Hong Kong Permanent Resident and he is fighting to get custody of their son; and

(9) He is willing to comply with conditions of ImmD if released on recognizance.

31.At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions. He further supplemented that he had applied for legal aid for fighting for his son’s custody but since it was rejected he has made no application to the court for custody as he does not know how to move forward with it nor is he financially able to engage lawyers to do so.

32.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

33.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.

34.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.

35.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.

36.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.”

37.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

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

39.There is clear prima facie authority for the detention of the Applicant throughout the Detention:

(1) From 11 July 2024 to 29 August 2024, under s.32(3A) of IO pending his removal pursuant to the RO;

(2) From 30 August 2024 to 12 September 2024, under s.29(1) of IO for inquiry as to whether he ought to be deported;

(3) From 13 September 2024 to 19 September 2024, under s.29(2) of IO for inquiry as to whether he ought to be deported;

(4) From 20 September 2024 to present, under s.32(3) of IO pending removal pursuant to the DO. There can be no dispute that the RO and DO made against the Applicant is valid and extant.

40.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).

41.The starting point is that the period of detention to date is 432 days, admittedly by the Respondents to be a long period of time, against which the other factors must be weighed and balanced.

42.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 RTD from CG long before the Detention and the continued liaison with CG to secure the RTD during the Detention. There were also numerous frequent interviews with the Applicant in hope that he would express willingness to return to Nepal and cooperate with the re-entry seeking formalities. Therefore HS1 is satisfied.

43.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, the numerous interviews with the Applicant to seek his co-operation and seeking priority to be accorded to the JR Leave Application. HS4 is also satisfied.

44.Whilst the Applicant submitted that he has outstanding legal proceedings, it is plain to me that the relatively long period of detention is caused and necessitated by the Applicant’s own unreasonable conduct in not cooperating with the re-entry seeking formalities and delaying the disposal of his NRC. The JR Leave Application was filed almost 1 years 10 months out of time. Had it been filed on time and promptly, the JR Leave Application would have been determined by now and possibly even before the Detention. See Johnson Benjamin, §§25-26 and 29.

45.Whilst the Applicant seems to suggest that he may take other legal proceedings if the JR Leave Application is dismissed, any detention prolonged by the Applicant’s delay and not promptly taking such steps, should not be regarded as an unreasonable period of detention. Besides, any further legal proceedings do not constitute legal impediment to his removal under the Government’s prevailing removal policy.

46.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, even though he has ongoing proceedings in relation to the NRC, as mentioned above, there is no reason why the Applicant should not cooperate with the re-entry formalities so that he can be removed once there are no legal impediments to his removal. 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.

47.I also accept the Director’s assessment that with the Applicant’s past convictions (the seriousness of which warranted the issuance of the DO) and expressed unwillingness to return to Nepal, there is a real risk of the Applicant re-offending and/or absconding. 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 and DO. The risks of absconding and re-offending are of critical and paramount importance in the assessment of the lawfulness of the detention. See Harjang Singh at §164(14). Even taking into account his connections to Hong Kong, this does not totally remove all risk of him absconding.

48.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.

49.As for the Applicant’s submissions that he is fighting for his son’s custody, this is not strictly correct. According to an Order in FCMC 11640/2018 attached to the Applicant’s Affirmation, the Applicant has been divorced from his ex-wife in March 2019 and custody of his son has been granted to his ex-wife in February 2019. According to the Respondents, the Applicant has never made or requested any application to be made relating to his son’s custody. The present case is clearly distinguishable from Alan Edward Van Leuven v Secretary for Security & Anor [2022] HKCFI 2896 where the applicant in that case was involved in proceedings already then commenced (i.e. at the time of the application for habeas corpus) to seek custody of his daughter who had been under the supervision and care of the Social Welfare Department and custody taken away from the mother. Besides, there is clear delay in not having made any application for custody, including any application for legal aid, back in 2019 when he was not being detained.

50.In relation to the Applicant’s claimed physical and mental 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.

51.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.

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

F. Conclusion

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

The Applicant appeared in person

Miss Rhoda Tsang, Government Counsel of Department of Justice, for the 1^st and 2^nd Respondents