SITI NURJANAH v. HONG KONG SAR GOVERNMENT

HCAL 543/2025

[2025] HKCFI 2213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 543 OF 2025

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DECISION

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1.  Introduction

1.1.  The Applicant is subject to a Removal Order and a Deportation Order respectively dated 26 April 2023 and 5 March 2025.  She has been held in immigration detention since 3 October 2024 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, she has been detained for 236 days.

1.2.  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 3 March 2025.  At the hearing, the Applicant appeared in person with the benefit of an interpreter.  Mr Jinson Cheng, Government Counsel, appeared for the Director of Immigration (“Director”)  and the Secretary for Security (“Secretary”).

2.  Background

2.1.  The Applicant is an Indonesian national.  Her parents, husband and 2 children reside in Indonesia in her home country. According to the information provided by her, she has no local connection in Hong Kong.

2.2.  The Applicant was previously employed as a foreign domestic helper and was permitted to remain in Hong Kong until 19 May 2021 or two weeks after termination of her employment, whichever was earlier. Her employment contract was terminated on 11 December 2020.  She did not depart as required and had overstayed in Hong Kong since 26 December 2020.

2.3.  On 15 June 2022, the Applicant was arrested by the Police as she was found to be an overstayer.  She was referred to the Immigration Department for further investigation.

2.4.  On 20 June 2022, the Applicant was convicted of (1)  “breach of condition of stay” and (2)  “taking employment while being a person who, having been given permission to land in Hong Kong, remains in Hong Kong in breach of the limit of stay”.  She was sentenced to a total of 15 months' imprisonment.

2.5.  On 15 April 2023, the Applicant was discharged from prison and transferred to the Immigration Department.

2.6.  On 13 June 2023, the Applicant was released on recognizance.

2.7.  On 3 October 2024, the Applicant's recognizance was ceased and since then she has been detained pursuant to the following sections of the Ordinance:

(1)  From 3 October 2024 to 24 February 2025, pursuant to section 32(3A)  pending her removal from Hong Kong;

(2)  From 25 February to 5 March 2025, pursuant to section 29(1)  pending considerations as to whether the Applicant should be deported;

(3)  Thereafter, pursuant to section 32(3)  pending her deportation from Hong Kong.

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

3.1.  Whilst serving her imprisonment, the Applicant indicated her intention to seek non-refoulement protection in Hong Kong by written submissions.  Her NRC was rejected by the Director on 29 November 2022.

3.2.  The Applicant’s subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 30 June 2023 (“TCAB Decision”)

3.3.  On 7 July 2023, the Applicant applied for leave to apply for judicial review against the TCAB Decision (HCAL 1114/2023). Following the commencement of her detention, a request was made to the Court of First Instance to expedite HCAL 1114/2023.  On 14 February 2025, DHCJ To dismissed HCAL 1114/2023.

4.  The present detention and its reviews

4.1.  As set out in the Notice of Detention served on the Applicant at the commencement of the present detention, the ceasing of her recognizance was said to be justified on the following bases:

(1)  Her removal was going to be possible within a reasonable time;

(2)  There was no sufficient reason to believe that her legal proceedings could not be completed within a reasonable period of time.

4.2.  The Applicant’s passport had expired on 11 July 2022.  As early as on 12 May 2023, which was prior to the present detention, the Director had already started liaison with the local Consulate General of the Republic of Indonesia ("IDN CG")  for reentry seeking and the issuance of a replacement travel document to the Applicant. Throughout the present detention, the Applicant has persistently expressed her unwillingness to return to Indonesia and/or refused to cooperate with the reentry formalities.  The Director has attempted to seek alternative means with the IDN CG to obtain a replacement travel document for the Applicant. The Director was informed by the IDN CG that the submission of a completed application form, passport photo and attendance of an interview by the Applicant were necessary for the issuance of a replacement travel document, which could be issued to her in around 2 weeks upon fulfilling the aforesaid requirements.  On 7 May 2025, an in-person interview was exceptionally arranged for the Applicant at the detention centre by the IDN CG in view of her uncooperative behaviour but she refused to attend the interview.

4.3.  In the latest reviews conducted in May 2025, the Applicant’s continued detention was said to be justified on the following bases:

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

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

(3)  The Applicant may abscond and/ or (re)offend, in particular she is likely to engage in unlawful employment or business if released from detention;

(4)  The Applicant’s claim that she has a Hong Kong permanent resident boyfriend who is willing to be her guarantor does not outweigh the factors in support of her detention

(5)  There are no other circumstances in favour of the Applicant's release.

5.  The Applicant’s submissions

5.1.  The Applicant’s written materials put forward the following matters:

(1)  The period of detention is lengthy and has continued for an unreasonable period of time;

(2)  Recognizance was ceased even though there were ongoing NRC related proceedings;

(3)  The detention is not for the purpose of effecting the Applicant's removal;

(4)  The Applicant could not be removed within a reasonable time;

(5)  The Applicant has already served her sentence and her previous convictions should not be used as a reason to detain her;

(6)  The Immigration Department has not acted with reasonable diligence and expedition to effect the Applicant's removal;

(7)  She fears for her own safety if repatriated;

(8)  The risk of absconding is low. The Applicant can be located as she can provide a fixed abode of her Hong Kong resident friend, Mr Cheung Wai Ming.

5.2.  The Applicant confirmed at the hearing that the above represent an accurate summary of her written materials.  At the hearing, the Applicant supplemented that (1)  she has felt unwell (stomach and chest pain)  and her requests for seeking treatment from outside hospitals have been unheeded, (2)  she has only been prescribed Panadol which has not led to any improvement, (3)  she feels that she has been mistreated by the personnel at the detention facilities, (4)  her boyfriend is willing to act as her surety and put up $10,000 and (5)  she questions whether the Immigration Department will take responsibility if she in fact gets harmed or killed if repatriated.

5.3.  When asked by the court, she takes the position that she wants to remain in Hong Kong and get married to her boyfriend.

6.  The applicable principles

6.1.  The 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.

6.2.  I 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.

6.3.  Under 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.

6.4.  The 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.”

6.5.  Where, as here, the Applicant has refused to cooperate with the reentry formalities, Johnson Benjamin is an authority for the proposition that this is a factor which may be taken into account in assessing the reasonableness of his detention. At Johnson Benjamin §37, it is stated:

“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.   Analysis

7.1.  During the present detention, the Applicant is and has been detained pursuant to the identified sections of the Ordinance.   It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2.  The 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 236 days, against which the various other factors must be weighed and balanced.

7.3.  As regards the Applicant's fear for her own safety if repatriated, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in her habeas corpus application will not look at the merits of any such claim.

7.4.  I accept that, throughout the period of detention, the intention of the Director/Secretary 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/Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied.  As at the commencement of the present detention, there were both legal and practical impediments to the Applicant's removal.  The legal impediment was resolved following the effort to expedite the resolution of HCAL 1114/2023, and upon that resolution, the legal impediment was removed by reason of the Updated Removal Policy.  The remaining practical impediment, namely the need for the Applicant to be issued a replacement travel document, has remained only because of the Applicant’s refusal to render her  cooperation in completing the reentry formalities.

7.5.  Given the Applicant's “light” criminal record and the nature of the offence for which she was convicted, I accept the Applicant's submission that her case is not one which should generate undue concern over her posing a threat or security risk to the community.  However, there remains a risk of reoffending, which if transpired, would inevitably delay her removal due to resulting court proceedings.  This is a factor which, as stated above, has been taken into account and in my view justifiably so.

7.6.  I also accept Mr Cheng’s submission that, despite there is no previous history of the Applicant breaching her recognizance conditions, there is a risk of absconding given the Applicant has steadfastly expressed her unwillingness to return to her home country.

7.7.  I also agree with Mr Cheng’s submission that the fact that the Applicant has a boyfriend who is willing to be her guarantor does not outweigh other factors against her release.  As much as I sympathize with the fact that she and her boyfriend have allegedly developed a serious relationship with a view of marriage, this is not a justification for her own desire to remain in Hong Kong, in view of the extant Removal Order and Deportation Order.

7.8.  I was told by Mr Cheng that the Applicant did not in fact raise any health issues during the present detention.  I note that the Applicant has not relied on any health issues in her written materials. Even if the health issues are genuine, there can be no suggestion that appropriate medical care pending removal is not available to her.

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

8.  Conclusion

8.1.  By 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.

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