LIMBU BIVEK v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 466/2026

[2026] HKCFI 4005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 466 OF 2026

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DECISION

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1.   Introduction

1.1     The Applicant is subject to a Deportation Order made on 9 July 2025. He has been held in immigration detention since 15 July 2025 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, he has been detained for 365 days. 

1.2     This is my decision on the Applicant’s application for a writ of habeas corpus made on 25 February 2026.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Ms Angie Liu, Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.   Background

2.1     The Applicant is a Nepalese national.  He was born in 1994 in Nepal. His father (“Father”) was a Hong Kong permanent resident and his mother (“Mother”) a Nepalese national.  Mother passed away in Nepal 1995 and the Applicant was raised by his paternal relatives in Nepal and Father visited the Applicant in Nepal every few years.

2.2     Following the demise of Mother, Father remarried twice.  The Applicant’s first stepmother acquired right of abode in Hong Kong in July 2004 but the marriage between Father and the 1^st stepmother was dissolved in 2007.  The Applicant’s 2^nd stepmother, eldest brother (“Eldest Brother”), and second elder brother (“Sanju”) acquired their right of abode in Hong Kong in 2017.

2.3     On 7 March 2009, the Applicant, then aged 15, arrived in Hong Kong as a visitor on the strength of his Nepalese passport.   As I understand the position:

(1)     Father brought him to Hong Kong to apply for residence here.  The Applicant made two applications for verification of eligibility for permanent identity card (respectively “1^st VEPIC Application” and “2^nd VEPIC Application”);

(2)     The 1^st VEPIC Application was refused on 19 May 2009, but the Applicant was granted the right to land in Hong Kong;

(3)     The Applicant then returned to Nepal to complete his secondary studies and returned to Hong Kong in 2012;

(4)     The 2^nd VEPIC Application was refused on 26 July 2019, on the basis that the Applicant had not ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately before the date of his application.

2.4     Father passed away in 2018.  On the materials before me, it appears that, on 8 April 2018, Father and Eldest Brother had a dispute at Father’s home in Hong Kong.  The Applicant and Sanju were not present.  That afternoon, Sanju informed the Applicant that Eldest Brother had injured Father and Father was hospitalized.  The Applicant rushed to the hospital and Father was pronounced dead the following day.  It appears that the Applicant and Sanju have maintained a good relationship.  For example, prior to the making of the Deportation Order, Sanju had written to the Immigration Department objecting (but ultimately without success) to the Applicant’s deportation.

2.5     The Applicant has been sentenced on 14 occasions for his conviction of 21 counts of offences, the first occasion being on 3 June 2014 and the most recent being on 9 April 2025.  The offences were predominantly related to theft, but he had also been convicted for a drug-related offence and an offence relating to possession of prohibited weapons. 

2.6     The Applicant also has a history of failing to attend court and/or jumping police bail, all taking place between 2019 and 2022.

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

3.1     Shortly after the commencement of the current detention, in July 2025, the Applicant lodged his NRC on 18 July 2025, which claim was rejected by the Director on all applicable grounds on 19 September 2025.

3.2     Thereafter, his appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 22 December 2025 (“TCAB Decision”).

3.3     The Applicant has made a number of legal aid applications:

(1)     He made an unsuccessful application for legal aid for his intended application for leave to apply for judicial review against the Deportation Order.  The relevant legal aid appeal was dismissed on 2 April 2026;

(2)     He has also made an unsuccessful application for legal aid for his then intended application for leave to apply for judicial review against the TCAB Decision.  The hearing of the relevant legal aid appeal (“LAA”) will take place on 6 August 2026.

3.4     Notwithstanding the above, the Applicant commenced HCAL 1169/2026 on 25 June 2026 to apply for leave to apply for judicial review against the TCAB Decision.  The Department of Justice has requested the Court of First Instance to accord priority to HCAL 1169/2026.

3.5     For completeness, on 1 April 2026, the Applicant made a request to the suspension of the recission of the Deportation Order (“Request”), which request is still pending a decision from the Secretary. 

4.   The present detention and its reviews

4.1     The present detention commenced following the Applicant’s discharge from prison, and for divers periods, were or are pursuant to section 32(3) and 37ZK of the Ordinance.

4.2     Throughout the present detention, the Applicant has persistently indicated that he is unwilling to return to his home country.  On 11 May 2026, he claimed that he suffered from food allergies and requested medical attention. 

4.3     Two repatriation operations had been scheduled.  The first, to take place on 12 March 2026, was cancelled due to the commencement of the present proceedings.  On 26 June 2026, without knowing that the Applicant had commenced HCAL 1169/2026, the itinerary of the Applicant’s repatriation flight scheduled for 15 July 2026 was issued (ie tomorrow), but will have to be aborted due to the commencement of HCAL 1169/2026.

4.4     In the latest reviews of the current detention conducted on 3 July 2026 (by the Security Bureau) and 8 July 2026 (by the Director), the Applicant’s release from detention was considered unjustified by the following broad reasons:

(1)     The LAA and the Request were not legal impediments to the Applicant’s removal

(2)     There were no practical impediments as the Applicant’s passport is valid until 27 May 2027;

(3)     The Applicant was a repeated offender of deportable offences, was unwilling to return to his home country and had a history of absconding thereby reflecting real risks of absconding and/or (re)offending;

(4)     There was no reason to expect that HCAL 1169/2026 could not be resolved expeditiously;

(5)     The Applicant’s local family connection would not outweigh the factors in support of his continued detention.

5.   The Applicant’s submissions

5.1     The Applicant’s submissions set out in his written materials may be summarized as follows:

(1)     He fears for his own safety if repatriated back to the home country, as his paternal relatives are accusing him to have conspired with Eldest Brother to murder Father and had threatened to harm him when he last visited Nepal;

(2)     The timing of his NRC can be explained by the fact that it was made in response to the making of the Deportation Order;

(3)     He believes that HCAL 1169/2026 is meritorious;

(4)     He has resided and worked in Hong Kong for more than 13 years and his previous convictions were all as a result of his drug addiction from which has rehabilitated;

(5)     Due to HCAL 1169/2026 being extant, he cannot be removed until its resolution;

(6)     He has a fixed abode with his family members, possesses strong community ties and poses no risk of absconding;

(7)     The length of his detention has become unreasonable;

(8)     The current unlawful detention has caused him immense distress, anxiety and depression for which he has not been provided with proper medical care;

(9)     He complains that the detention facilities do not provide proper diet and living conditions and his health suffers as a result;

(10)     His basic rights (such as rights to education, family, and information) are being violated;

(11)     He promises to comply with recognizance conditions, including not to commit any further offences;

(12)     Since there is no independent oversight, he is (a) subject to abuse, (b) deprived of proper hygiene and diet and (c) vulnerable to assault by other detainees;

(13)     He suggests that Sanju and his wife are willing to act as his sureties.

5.2     At the hearing, the Applicant confirmed the accuracy of the above summary and supplemented as follows (in addition to repeating matters already set out in the above summary).  First, Sanju and his wife attended the hearing to show support of the present application and confirmed their willingness to act as the Applicant’s guarantors.  Secondly, he questions whether it is appropriate on the part of the Department of Justice to request the Court of First Instance to expedite the resolution of HCAL 1169/2026.  Thirdly, he repeats this health concerns, including his allergy to meat and the need for dental examination.  Fourthly, he argues that his previous convictions are trivial in nature and in any event he has served the sentences.  Fifthly, he is handicapped whilst being detained from handling the challenge against the Deportation Order since legal aid has been refused.   Sixthly, the Applicant complains that there have not been regular reviews of his detention.

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     In particular, on the issue of a detainee's refusal to cooperate in completing reentry formalities, Johnson Benjamin §37 observed as follows:

“… 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…”

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 365 days, against which the various other factors must be weighed and balanced.

7.3     As regards the Applicant’s fear for his 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 his 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 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 two repatriation operations (which was made and will be made abortive only by the Applicant’s commencement of the present action and HCAL 1169/2026) and the efforts made to expedite the resolution of HCAL 1169/2026.  In this regard, I do not accept the Applicant’s submission that it is inappropriate for the Department of Justice to have requested the court to accord priority to HCAL 1169/2026.  Any complaint of unfairness caused by inadequate time for preparation is a matter to be raised and demonstrated at the hearing of HCAL 1169/2026

7.5     As the Applicant has a valid travel document, there are no, and have never been any, practical impediments to the Applicant’s removal.

7.6     Although there were no legal impediments to the Applicant’s removal as at the commencement of the present detention, legal impediments have since been created by the commencement of the present proceedings and HCAL 1169/2026.  In this regard, I accept the Respondents’ submissions that the Request and the LAA do not constitute legal impediments.  Contrary to the submissions made by the Respondents, I am not prepared to attribute any substantial delay to the Applicant in respect of the commencement of his NRC.  As submitted by the Applicant, the Deportation Order was only made on 9 July 2025 and the Applicant commenced his NRC within a short time thereafter.  I am also not prepared to attribute any substantial delay to the Applicant’s late commencement of HCAL 1169/2026.  Whilst it is true that the TCAB Decision was dated 22 December 2026 and HCAL 1169/2026 was only commenced in June 2026, the timing may be explained by the application for legal aid made by the Applicant in the interim.  It is apparent that the Applicant did not remain idle, as pending the resolution of the LAA, the Applicant commenced HCAL 1169/2026.

7.7     However, the above observation is of no real practical consequence, because I am satisfied that there is no real reason to expect that HCAL 1169/2026 cannot be resolved within a reasonable time.

7.8     Importantly. I agree with the Respondents that, given the Applicant’s unwillingness to return to his home country and his previous history of failing to attend court and breaching police bail, there are real absconding risks which are not ameliorated by his family connections in Hong Kong.  Such risks, if they materialize, would defeat the purpose for which the power for detention is conferred.

7.9     Also weighty is that, whilst I am prepared to procced on the basis that the nature of the previous convictions (predominantly shoplifting) do not render the Applicant a “hard” security risk to the community, I am satisfied that the risks of the (re)offending are real, given the number and frequency of repeated theft offences, and such risks, if they materialize, may delay his removal by reason of consequential investigations and court proceedings. 

7.10     In relation to the Applicant’s claimed health and psychological conditions, there is no evidence to suggest that the Applicant cannot receive proper medical treatment if needed whist being detained.  On the Applicant’s own admission at the hearing, his allergy and dental problem are being dealt with albeit not as soon as he would like, but this is not uncommon given the demands on the health services in Hong Kong.  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.

7.11     I also do not regard that Applicant’s bare allegations about the living conditions at the detention are to be treated as a weighty factor.

7.12     As regards the Applicant’s complaints of lack of reviews of the his detention, it is plain that reviews were conducted on (at least) 4 September 2025, 2 December 2025, 27 April 2026 12 May 2026, 26 June 2026, 3 July 2026 and 8 July 2026.

7.13     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 (at least until the resolution of the HCAL 1169/2026) has been and will remain lawful.

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