HARSHA BAHADUR THAPA v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2100/2025

[2025] HKCFI 5090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2100 OF 2025

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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 17 September 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”)  where he has been detained since 17 December 2024 (“the Application”).  The period of detention to date is 311 days (“the Detention”).

2.  On 22 September 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.  A Response for the Respondents dated 16 October 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 two bundles 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 Fung, Government Counsel, appearing for the Respondents.

B.  Background

B1.  Immigration status and stay in HK

5.  The Applicant is a Nepali national born on 9 August 1977.

6.  On 20 September 1997, the Applicant arrived in Hong Kong on the strength of his Nepalese passport and was permitted to remain as a visitor.

7.  On 16 June 1998, the Applicant was granted permission to join his then wife, who is a Hong Kong permanent resident (“HKPR”)  on dependant status with a limit of stay last extended to 16 June 2005.  However, he did not depart from Hong Kong and has overstayed in Hong Kong since 17 June 2005.

8.  On 8 May 2006, the Applicant was convicted of theft and fined HK$2,000 and sentenced to 2 months’ imprisonment suspended for 12 months.

9.  The Applicant and his then wife divorced in January 2007.

10.  The Applicant applied for verification of eligibility for permanent identity card in March 2007 which was refused in June 2007.

11.  On 12 March 2012, the Applicant was convicted of possession of offensive weapon in public place and breach of condition of stay (overstaying).  He was sentenced to a total of 12 months’ imprisonment.

12.  On 14 September 2012, a deportation order (“DO”)  was issued against the Applicant under s.20(1)(a)  of the Immigration Ordinance, Cap. 115 (“IO”).

13.  Upon discharge from prison on 21 September 2012, he was transferred to Immigration Department (“ImmD”)  for detention pending removal under s.32(3)  of IO. 

14.  On 9 April 2013, the Applicant was released on recognizance.

15.  On 14 May 2013, the Applicant failed to report for recognizance and was arrested by the Police for being a wanted person on 14 June 2013.  The Applicant was transferred to ImmD for detention under s.32(3)  of IO but was released on recognizance on 24 September 2013.

16.  On 25 November 2014, the Applicant failed to report recognizance and did not resurface until his arrest on 13 December 2015.  He was detained by ImmD under s.32(3)  of IO but was released on recognizance on 19 January 2016.

17.  On 9 January 2017, the Applicant was convicted of criminal damage and was sentenced to a fine of HK$1,500 and compensation of HK$2,500.

18.  On 17 December 2024, the Applicant’s recognizance was ceased and he was detained under s.32(3)  of IO pending his deportation.

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

19.  The Applicant lodged a torture claim on 9 January 2013 which was rejected by the Director of Immigration (“the Director”)  on 29 May 2013 (“the Director’s Decision”).

20.  On 19 June 2013, the Applicant lodged a NRC on ground of cruel, inhuman and degrading treatment and punishment.

21.  On 26 June 2013, 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 Office (“the Board”)  on 11 July 2013.

22.  On 13 September 2018, the Applicant’s NRC on all applicable grounds other than torture risk was rejected by the Director (“the Director’s Rejection”).

23.  On 27 September 2018, the Applicant lodged a petition/appeal against the Director’s Rejection which was dismissed by the Board on 1 April 2019 (“the Board’s Decision”).

24.  On 29 April 2019, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”).

25.  On 5 September 2023, the JR Leave Application was refused (“CFI’s Decision”).

26.  On 19 June 2025, the Applicant filed an application for extension of time to appeal against the CFI Decision.

27.  On 2 October 2025, ImmD received a request to make a subsequent claim (“SC Request”)  which has been accorded high priority.

B3.  Steps towards the removal of the Applicant

28.  Even prior to the Detention, on 21 December 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.  A follow up letter was sent by ImmD to CG on 26 November 2024.

29.  During an interview with the Applicant on 3 December 2024, the Applicant expressed his unwillingness to leave Hong Kong and refused to complete the re-entry application form and attend interview with CG.

30.  Upon the commencement of the Detention, CG was contacted by ImmD on 17 December 2024 to inquire about the re-entry formalities.

31.  On 24 December 2024, the Applicant was interviewed by ImmD but expressed his strong unwillingness to return to his home country.  He refused to complete the re-entry application form and take photos as well as attend interviews with CG.  He was informed that his uncooperativeness would impede his removal and lengthen his detention.

32.  Follow-up letters were sent to CG on 7 January 2025, 27 March 2025, 26 May 2025 and 19 August 2025 seeking alternative means to issue a travel document regardless of the Applicant’s uncooperative attitude.

33.  The Applicant maintained his unwillingness to return to his home country and refusal to cooperate with any re-entry seeking formalities in all subsequent interviews by ImmD (on 20 January 2025, 24 January 2025, 21 February 2025, 3 April 2025, 23 April 2025, 13 May 2025, 21 May 2025, 19 June 2025, 18 August 2025 and 17 September 2025).

B4.  Reviews of Detention

34.  The last review of detention was conducted by the Secretary for Security (“the Secretary”)  on 14 October 2025.  Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  Given priority has been accorded to the SC Request (which will be determined within 8 weeks from 3 October 2025), any obstacle to removal can be cleared within a reasonable time;

(2)  His removal is directly or indirectly prevented or delayed by the action or lack of action by the Applicant.  Should he cooperate with the re-entry seeking/repatriation arrangements he could have been returned to Nepal and released from detention much earlier;

(3)  The Applicant was previously convicted of possession of dangerous weapon and breach of condition of stay which was the basis of DO.  These are serious offences and coupled with his failure to report recognizance on 2 occasions and unwillingness to return to his home country, there is a real risk of absconding and/or re-offending.

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 still has on-going legal proceedings and subsequent claims to lodge in the future and it cannot be ascertained how long the case will take.  Therefore it is not possible to remove him within a reasonable period of time;

(2)  His detention is unreasonable and unjust;

(3)  He does not pose a threat or security risk, has already served his sentences and he promises not to commit any offence;

(4)  He has a friend who is willing to stand as his guarantor/surety;

(5)  In respect of his previous absconding, it “unintentionally happen due to illness”;

(6)  His mental and psychological health has been affected by the detention; and

(7)  He cannot go back to his home country because he has problems there and due to the country’s recent situation.

36.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions and that he had no further submissions in support of the Application.  In his Affirmation, he also exhibited medical certificates and records from Queen Mary Hospital showing that he had suffered a right big toe fracture in March 2025 due to a slip and fall. 

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 pursuant to s.32(3)  of IO pending removal pursuant to the DO.  There can be no dispute that the DO made against the Applicant is 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 311 days, 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 as well as the numerous frequent interviews with the Applicant in hope that he would express willingness to return to Nepal.  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, the frequent interviews with the Applicant to seek his co-operation and seeking priority for determination of the SC Request.   HS4 is also satisfied.

49.  Whilst the Applicants submitted that he has outstanding legal proceedings, under the prevailing removal policy, these do not constitute legal impediment to removal.  The SC Request also does not create a legal impediment since under s.37ZO of IO, unless and until a request to make a subsequent claim is granted by an immigration officer under s.37ZO(2)  and a subsequent claim is made in accordance with s.37X, there is no torture claim which would prevent the removal of the Applicant from Hong Kong: see Mohammed Afsar Ali v Hong Kong SAR Government [2025] HKCFI 3840 per DHCJ Jonathan Wong, §8.4. 

50.  Besides, as mentioned above, it was held in Johnson Benjamin 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.  If he cooperates, an emergency travel document could be issued in around two weeks upon all formalities being met and there is no reason to believe he cannot be removed within a reasonable period of time.  Plainly, the Applicant’s detention is clearly necessitated and prolonged only by the Applicant’s refusal to cooperate with the re-entry seeking formalities.  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. 

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

52.  I also accept the Secretary’s assessment that with the Applicant’s past convictions (the seriousness of the offences committed is reflected by the sentence imposed and the making of DO), absconding records, 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 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). 

53.  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. 

54.  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, at §27 per Chow J (as he then was).  The medical records produced by the Applicant demonstrate that he has access to medical examination and treatment where necessary at the public hospital even though he is detained.

55.  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.

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

F.  Conclusion

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