Bal Tamang Chandra Bahadur v. Director of Immigration and Another

HCAL 1802/2025

[2025] HKCFI 4375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1802 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 1 August 2024 (“the Application”). The period of detention to date is 413 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. An Initial Response of the 1^st and 2^nd Respondents dated 10 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 acting on behalf of the Respondents.

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

B. Background

B1. Immigration status and stay in HK

5.The Applicant is a Nepali national born on 23 October 1984.

6.On 18 April 2013, the Applicant arrived in Hong Kong on the strength of his Nepalese passport and was permitted to remain as a visitor until 25 April 2013. However, he did not depart from Hong Kong and has overstayed in Hong Kong since 26 April 2013.

7.On 15 January 2014, the Applicant surrendered to the Immigration Department (“ImmD”) and was released on recognizance on the same day.

8.On 13 December 2017, a removal order (“RO”) was issued against the Applicant under s. 19(1)(b) of the Immigration Ordinance, Cap.115 (“IO”).

9.On 10 August 2018, the Applicant married a Hong Kong Permanent Resident who gave birth to a daughter on 16 November 2019.

10.On 16 January 2020, the Applicant was convicted of one count of theft and sentenced to two weeks’ imprisonment.

11.On 21 April 2020, the Applicant was convicted of two counts of theft and sentenced to a total of four months’ imprisonment.

12.On 4 June 2021, the Applicant was convicted of three counts of theft and was sentenced to a total of four months and two weeks’ imprisonment.

13.On 2 March 2023, the Applicant was convicted of two counts of theft and was sentenced to a total of six months’ imprisonment.

14.On 11 April 2024, the Applicant was convicted of seven counts of theft and was sentenced to a total of eight months’ imprisonment.

15.He also failed to report recognizance for 5 times and jumped court bail once with the longest absconding period of over 10 months.

16.On 1 August 2024, upon and since discharge from prison the Applicant has been detained.

17.On 21 October 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

18.The Applicant lodged a NRC on 4 August 2015 which was rejected by the Director of Immigration (“the Director”) on 22 February 2019 (“the Director’s Decision”).

19.On 12 March 2019, the Applicant filed an appeal/petition against the Director’s Decision but this was refused by the Torture Claims Appeal Board/Non-refoulement Claims Petition Officer on 5 September 2019 (“the Board’s Decision”).

20.On 29 June 2020, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”).

21.On 3 January 2024, the JR Leave Application was refused (“CFI’s Decision”).

22.On 17 October 2024, the Applicant filed an application for extension of time to appeal against the CFI Decision which was refused on 22 November 2024.

23.On 5 February 2025, the Applicant informed the Director that he filed a renewed application for extension of time to appeal against the CFI Decision.

B3. Steps towards the removal of the Applicant

24.Even prior to the Detention, on 1 June 2020, 8 May 2023, 27 July 2023, 31 August 2023 and 4 June 2024, 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 and confirming the Applicant’s re-entry to Nepal.

25.On 23 August 2024, the Applicant’s identity was confirmed by CG.

26.During interviews by ImmD during the Detention (on 15 August 2024, 29 August 2024, 27 September 2024, 30 September 2024, 25 October 2024, 21 November 2024, 22 November 2024, 2 January 2025, 4 February 2025, 21 February 2025, 13 March 2025, 14 March 2025, 14 April 2025, 24 April 2025, 13 May 2025, 23 May 2025, 19 June 2025, and 19 August 2025), the Applicant expressed his unwillingness to return to Nepal and refused to comply with the re-entry application formalities (to complete the replacement travel document application form, take photos and attend interview with CG). He was explained that his uncooperativeness would prolong and impede his removal.

27.On 6 November 2024, ImmD wrote to CG informing that the Applicant was reluctant to complete the application formalities and sought alternative means to issue a travel document to him regardless of his uncooperative attitude.

28.On 8 November 2024, ImmD followed up with CG.

29.On 14 November 2024, CG replied that the case was under active process and generally speaking, the replacement travel document could be issued in around 2 weeks after fulfilling the re-entry application formalities.

30.On 18 November 2024, a one-way travel document (“OWTD”) with validity until 17 February 2025 was issued to the Applicant by CG.

31.On 4 December 2024, the first repatriation operation was carried out. However, the Applicant turned emotional and refused to leave the cell. Take security and safety into consideration, the operation was called-off.

32.On 12 February 2025, the second repatriation operation was carried out. Again, as the Applicant turned emotional and refused to leave, take security and safety into consideration, the operation was called-off.

33.After the OWTD expired, by letters dated 10 March 2025, 12 June 2025 and 3 September 2025 to CG, ImmD sought issuance of a replacement travel document regardless of the Applicant’s uncooperative attitude.

B4. Reviews of Detention

34.The last review of detention was conducted by the Secretary for Security (“the Secretary”) on 15 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) There is no legal impediment to the Applicant’s removal after the JR Leave Application was refused on 3 January 2024;

(2) The Applicant is a repeated offender who has been convicted of 15 counts of theft from 2020 to 2024. A DO was made against the Applicant on the basis of these convictions;

(3) The Applicant failed to report recognizance for 5 occasions from 2018 to 2024 with the longest absconding period for more than 10 months, and the Applicant also failed to report to court bail from September 2019 to January 2020 until he was re-arrested by the police. Coupled with the Applicant’s unwillingness to return to his home country, the risk of absconding and/or re-offending is high;

(4) The Applicant frustrated the two removal operations and has refused to complete re-entry formalities. The Applicant has directly or indirectly prevented or delayed removal by his expressed unwillingness to return and refusal to cooperate with the re-entry seeking formalities;

(5) The local connection (wife and daughter) has been taken into account but does not outweigh other factors against release stated above.

C. The Applicant’s Submissions

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

(1) He cannot return to his home country as his life is in danger;

(2) He has a wife (who is willing to act as his guarantor and surety) and daughter in Hong Kong and is not likely to abscond. He can provide a fixed abode where he can be easily located;

(3) He has been detained since 1 August 2024 and the period of detention has become unlawful;

(4) He still have on-going legal proceedings and subsequent claims to lodge in the future, and it cannot be ascertained how long the case will take and therefore it is not possible to remove him within a reasonable period of time;

(5) The Director did not act with reasonable diligence;

(6) He is willing to undertake to report to ImmD if released;

(7) His mental and physical health has been affected by the detention;

(8) He had served the sentences for his past crimes and undertakes not to commit offences. He has totally rehabilitated and changed attitude so it would be wrong to believe he would re-offend;

(9) His daughter has a medical condition; and

(10) The detention has been impacting him and his wife who is suffering from depression and stress.

36.At the hearing, the Applicant confirmed that the preceding paragraph represents an accurate summary of his submissions. He further submitted to me a two-page document that he said he had hand-written himself as well a copy of the OWTD. With the assistance of the interpreter, I understand that the following are the further submissions that the Applicant made in the two-page document:

(1) He was or is unwilling to cooperate with ImmD because his life is in danger in Nepal;

(2) ImmD obtained the OWTD (he called this the “out-pass”) by forgery as it does not bear his signature on it and no official formalities were done with his signature;

(3) The several forceful removal operations by ImmD had troubled him;

(4) He was imprisoned from 21 February 2024 until today. He has already changed, improved and rehabilitated over the long duration of time;

(5) He has a family here in Hong Kong and promised not to break the relationship with his wife and beautiful daughter because of him. He requests not to be separated from them and to be released on recognizance.

37.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

38.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.

39.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.

40.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.

41.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.”

42.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

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

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

(1) From 1 August to 26 September 2024 under s.32(3A) of IO pending his removal pursuant to the RO;

(2) From 27 September 2024 to 10 October 2024 under s.29(1) of IO for inquiry as to whether he ought to be deported;

(3) From 11 October 2024 to 21 October 2024 under s.29(2) of IO for inquiry as to whether he ought to be deported; and

(4) From 21 October 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 are valid and extant.

45.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).

46.The starting point is that the period of detention to date is 413 days, no doubt a very long period of time, against which the other factors must be weighed and balanced.

47.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 replacement travel document from CG long before the Detention and the continued liaison with CG during the Detention, the numerous frequent interviews with the Applicant in hope that he would express willingness to return to Nepal and the repatriation operations. Therefore HS1 is satisfied.

48.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.

49.Whilst the Applicant submitted that he has outstanding legal proceedings, under the prevailing removal policy, these do not constitute impediment to removal. The Applicant’s detention is clearly necessitated and prolonged only by the Applicant’s refusal to cooperate with the re-entry seeking formalities and the repatriation arrangements, and delay in taking out legal proceedings (the JR Leave Application and applications for extension of time to appeal were all taken out of time). 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.

50.Whilst the Applicant seems to suggest that he may take other legal proceedings or subsequent claims, any detention prolonged by the Applicant’s delay and not promptly taking such steps, should not be regarded as unreasonable detention. Besides, any further legal proceedings do not constitute legal impediment to his removal under the Government’s prevailing removal policy.

51.I also accept the Director’s assessment that with the Applicant’s numerous past convictions (the seriousness of the offences committed is reflected by the sentence imposed and the making of DO), absconding record and jumping bail, coupled with his expressed unwillingness to return to Nepal and also bearing in mind that he is an over-stayer, 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.

52.Although the Applicant says that he cannot go back to Nepal because his life is in danger, and that is why has not been cooperative, 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. As mentioned above, even if there are ongoing NRC, there is no reason in principle why it is not reasonable to expect him to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the NRC is disposed of.

53.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.

54.In respect of the alleged effect of the Detention on him and his family, given not long after the birth of his daughter, he has committed a series of serious offences which resulted in his imprisonment, any further effect of the Detention on his family should not be overstated and in any event, has been taken into account. 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.

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

F. Conclusion

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

The Applicant appeared in person

Mr Simon Au, Government Counsel of Department of Justice, for the 1^st and 2^nd Respondents