BEYDOU MAGAGI SEYBOU v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2519/2025

[2026] HKCFI 1118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2519 OF 2025

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D E C I S I O N

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1.  Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 13 September 2013 and 15 August 2024. He has been held in immigration detention since 30 April 2024 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detailed for 666 days.

1.2  This is my decision on the Applicant’s second application for a writ of habeas corpus made on 13 November 2025, the first application (“First Application”) having been made on 19 June 2024 and withdrawn by the Applicant on 26 August 2024. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. Mr Felix Lee, Senior Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.  Background

2.1  The Applicant is a Nigerian national. On 2 February 2013, he arrived in Hong Kong and was permitted to remain in Hong Kong until 16 February 2013 as a visitor. He overstayed and surrendered to the Immigration Department on 27 March 2013. He was released on recognizance on the same day.

(i)  The Applicant’s family

2.2  The Applicant claims to have a Ugandan girlfriend (“Girlfriend”) and three children respectively born on 26 June 2018 (“Eldest Daughter”), 3 June 2020 (“Middle Daughter”) and 21 February 2022 (“Youngest Son” and together with the Eldest Daughter and the Middle Daughter “Children”). In the birth certificates of the Eldest Daughter and the Middle Daughter, the Applicant was not named as the father (the father’s particulars were left blank). The Girlfriend and the Children are all non-refoulement claimants in Hong Kong with no outstanding claims at any level.

2.3  As regards the Children:

(1)  It appears from the materials provided by the Applicant that the Girlfriend had on 7 November 2023 signed a consent form to voluntarily apply for Residential Child Care Service provided by the International Social Service Hong Kong Branch (“ISS-HK”) for the Youngest Son, and similar applications were made on 8 January 2024 in respect of the two daughters;

(2)  According to the Applicant, the Children are now under the supervision and care of the Social Welfare Department;

(3)  Although the Girlfriend is not claiming custody of the Children, on 26 August 2025, the Applicant was granted legal aid for the purpose of applying for custody of the Children under the Guardianship of Minors Ordinance;

(4)  The Applicant’s wish is to obtain custody of the Children, upon which he would seek deportation back to his home country together with the Children;

2.4  Although legal aid was granted in August 2025, enquiries made by the Immigration Department to the assigned solicitors revealed that proceedings have yet to be commenced (as at 30 January 2026). At the hearing, I was told that the Immigration Department made enquiries with the assigned solicitors again yesterday and the intended proceedings have still not been commenced.

(ii)  Criminal convictions and absconding records

2.5  Whilst on recognizance, the Applicant was convicted of a number of offences:

(1)  On 10 June 2014, he was sentenced to 8 months’ imprisonment for “Possession of a dangerous drug”;

(2)  On 13 July 2015, he was sentenced to 12 months’ imprisonment for “Trafficking in dangerous drugs”;

(3)  On 27 November 2018, he was sentenced to a total 26 months’ imprisonment for two counts of “Attempting to obtain property by deception”;

(4)  On 9 February 2023, he was fined HK$5,000 for “Possession of a dangerous drug”;

(5)  On 18 May 2023, he was sentenced to a total of 21 months’ imprisonment for two counts of “Trafficking in dangerous drugs”.

2.6  The present detention commenced following the Applicant’s discharge from the latest term of imprisonment.

2.7  The Applicant also has a number of absconding records:

(1)  He failed to report recognizance on 25 August 2017 and was arrested by the police on 23 December 2017;

(2)  From 15 November 2019, he failed to report recognizance until he was intercepted by the police on 7 February 2020;

(3)  On 7 February 2020, he was admitted to hospital for medical treatment and was required to report to the Immigration Department on the day after his discharge from hospital. He was found missing from the hospital the next day. He thereafter remained at large until he resurfaced and requested for resumption of recognizance on 21 October 2020;

(4)  From 5 April 2022, the Applicant failed to report recognizance and he only resurfaced on 5 May 2022;

(5)  From 13 July 2022, the Applicant failed to report recognizance and he only resurfaced on 29 August 2022.

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

3.1  The Applicant’s NRC was rejected by the Director on 8 June 2016 (on grounds of torture, BOR3 and persecution risks) and on 1 December 2016 (on ground of BOR 2 risk). His subsequent late appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office made on 4 May 2017 was refused on 27 July 2018 (“TCAB Decision”).

3.2  Thereafter, on 12 August 2019, the Applicant filed an application for leave to apply for judicial review against the TCAB Decision[1] (“First JR Leave Application”), which application was made 9 months out of time. On 29 February 2024, the Court of First Instance dismissed the JR Leave Application.

3.3  After the commencement of the present detention, on 4 October 2024, the Applicant requested to make a subsequent claim (“SC Request”), which request was refused by the Director on 15 November 2024 (“Refusal Decision”). On 16 January 2025, the Applicant filed an application for leave to apply for judicial review against the Refusal Decision[2] (“Second JR Leave Application”).

3.4  On 25 March 2025, the Court of First Instance dismissed the Second JR Leave Application and made a restricted proceedings order against the Applicant (“RPO”).

4.  The present detention and its reviews

4.1  The Applicant’s detention was and is pursuant to the following sections of the Ordinance:

(1)  From 30 April to 2 August 2024, under section 32(3A) pending his removal under the Removal Order;

(2)  From 2 August to 15 August 2024. under section 29(1) pending inquiry as to whether a Deportation Order should be made;

(3)  From 15 August 202 until now, under section 32(3) pending his removal under the Deportation Order.

4.2  As at the commencement of the Present Detention in April 2024, there was no legal impediment to the Applicant’s removal by reason of the Updated Removal Policy, as the First JR Leave Application had been refused by the Court of First Instance on 29 February 2024.

4.3  Between April and mid-July 2024, the Applicant expressed his unwillingness to return to his home country but was willing to cooperate in completing the reentry formalities. As stated above, the First Application for a writ of habeas corpus was made on 19 June 2024. During that period, the Applicant asked to be released on recognizance and claimed that he was suffering from high blood pressure.

4.4  At the interview conducted on 16 July 2024, the Applicant expressed his willingness to return to his home and claimed that he would withdraw the First Application.

4.5  On 6 August 2024, an emergency travel document was issued to the Applicant by the Embassy of the Republic of the Niger in Beijing (“Embassy”), valid until 31 August 2024. A removal operation was scheduled for 29 August 2024 (“Removal Operation”).

4.6  At the interview conducted on 7 August 2024, the Applicant claimed that he would like to return to his home country with the Children who were under the shelter of ISS. He indicated that the Girlfriend did not agree with the arrangement and acknowledged that the Children could not leave Hong Kong if no consent was given by the Girlfriend. He confirmed that he would still return to his home country by himself if the Girlfriend did not give consent to the Children returning with him.

4.7  At the interview conducted on 15 August 2024, the Applicant changed his mind and expressed his unwillingness to return to his home country without the Children.

4.8  The Removal Operation was called off due to the Applicant’s strong resistance. He insisted that he would only return to his home country with the Children and repeatedly stated that he must get back the custody of the Children.

4.9  Following the aborted Removal Operation, the Immigration Department continued to liaise with the Embassy and a second emergency travel document was issued on 16 October 2024 valid until 30 October 2024. Since the expiry of the second emergency travel document, the Applicant has refused to cooperate in completing reentry formalities for a further emergency travel document to be issued to him.

4.10  In the latest review of detention conducted on 5 February 2026, the Applicant’s continued detention was considered to be justified by the following broad grounds:

(1)  The Applicant’s removal was imminent as he had no NRC‑related issues/legal impediment hindering his deportation;

(2)  The Applicant posed, or was likely to pose, a threat of security risk to the community;

(3)  The Applicant might abscond as he expressed unwillingness to return to this home country and was uncooperative in reentry seeking formalities;

(4)  The Applicant might (re)offend;

(5)  The Applicant did not have close connection or fixed abode in Hong Kong;

(6)  There were no other circumstances in favour of the Applicant’s release.

5.  The Applicant’s submissions

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

(1)  His main focus is to obtain custody of the Children and, were he successful, he would willingly be deported together with them;

(2)  A legal aid certificate has been granted to him to make the application for custody;

(3)  The Family Court may require a DNA test and that could not be performed whilst he is detained;

(4)  If a new birth certificate is to be granted that would also require his personal attendance;

(5)  He relies heavily on Alan Edward Van Leuven v Secretary for Security & Anor [2022] HKCFI 2896 in which Coleman J acceded to an application for a writ of habeas corpus and placed weight on the fact that the applicant in that case was also applying for custody of his daughter;

(6)  He has never committed any criminal offence of a serious nature;

(7)  He does not have any absconding records;

(8)  In any event, by reason of his application for custody, there is no reason for him to abscond and he would not jeopardize the custody application by (re)offending;

(9)  With the assistance of ISS, he can provide a fixed place of abode and is willing to comply with recognizance conditions;

(10)  He offers a Hong Kong permanent resident as his guarantor;

(11)  The detention has had an adverse impact on his family and he has been told by the social welfare officer that the Eldest Daughter is exhibiting more violent behaviour;

(12)  He is suffering from various health conditions and he exhibits medical records showing that he has been diagnosed with hypertension and had previously been admitted to the hospital for hypertensive urgency and chest discomfort;

(13)  In addition to his physical ailments, he is also suffering from depression.

5.2  At the hearing, the Applicant confirmed that the above summary is accurate. He supplemented by handing up a letter which sets out the following matters: (1) at the time of the Removal Operation, he was misled into believing that he was to return to his home country with the Children, (2) he disputes that he was being uncooperative during the Removal Operation and points to the fact that no complaints have been made against him for his behaviour during the present detention, (3) he was handcuffed when seeking treatment at outside hospitals, (4) his assigned solicitors are in control of the progress of the Family Court proceedings and the Girlfriend does not oppose the application and (5) he repeats that the present detention is adversely impacting the Children.

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

7.3  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. The foregoing is amply demonstrated by the arrangement of the Removal Operation, the continued liaison thereafter with the Embassy for the issuance of a further emergency travel document and expediting the resolution of the SC Request and the Second JR Leave Application.

7.4  In relation to the Applicant's claimed health conditions, there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained. In any event, the Applicant's medical condition, whether physical or mental, does not have the effect of altering his continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.5  As stated above, the Applicant relies heavily on Alan Edward. Indeed, it appears that the grounds set out in the present application, for example the possibility of having to undergo a DNA test and the need for his personal attendance in case a new birth certificate is to be issued, are “modelled” after Alan Edward §38(22) to 38(27). The Applicant relies in particular on Coleman J’s following observations:

“[53] In particular, the consideration of the impact of the Family Court proceedings appears to have focused on the ability of the Applicant to conduct those proceedings, either from detention or from overseas after deportation. I think the impact is of real weight in the overall consideration of the continued lawfulness of detention.

[54] First, from the materials, I am not sure that there has been a real grasp of the Applicant’s level of practical or realistic ability to conduct proceedings from detention, or from overseas. He is acting in person (as is his right, and as is the natural consequence of the failure to obtain legal aid), and that fact has already impacted his ability to take the proper role in the proceedings. Whilst I asked at the hearing for further enquiries to be made as to why the Applicant has been unable to file his further evidence and submissions, notwithstanding the leave to do so, it may be because of the very nature of the proceedings themselves; proceedings relating to children are ordinarily kept extremely private, and participation strictly limited in all respects to the parties to the proceedings and/or those legal representatives on the record as acting for the parties.

[55] Secondly, the nature of the proceedings – a claim to parental rights and to custody of a child – are such that the Applicant’s prospects in the proceedings might be significantly affected by whether he is or is not in detention. That is a potentially significant impact not just on the Applicant, but also on the child – where the child’s mother is apparently not seeking custody and the real contest in the proceedings seems to be between the Applicant and the Social Welfare Department, as to whether the Applicant is a person with parental rights and, if so, whether he is able to provide appropriate care to the child.

[56] Ms Wong’s submission that family rights are irrelevant to the status of an illegal immigrant is misdirected. I accept that an illegal immigrant who is pending deportation cannot rely on any family rights by reason of the operation reason of the ‘immigration reservation’ under section 11 of the Hong Kong Bill of Rights Ordinance. Nor can he get around section 11 by relying on the family rights of the child (who may be a Hong Kong resident): see Comilang v Director of Immigration (2019) 22 HKCFAR 59. But, with respect, if it is the view of the Secretary/Director that they can in effect ignore matters such as the impact on family and family rights in detention cases, that is incorrect.

[57] In the consideration of whether an initially lawful detention has become unlawful – and in any related habeas corpus application – the detained person is not claiming residency or permission to stay, and he is not advancing his family rights as an impediment to his removal. The question is whether he should be held in detention or be released on recognizance while he remains in Hong Kong pending his deportation. In that context, the appropriate weighing and balancing obviously permits, and in fact requires, appropriate consideration of the impact of continued detention on the applicant and his family. Indeed, it is settled that a review of what might be regarded as a reasonable period of detention will include the effect of detention on him and his family (see above).

[58] Thirdly, there is much force in the Applicant’s statement that it makes no sense for him to abscond, when he is fighting for custody of his daughter in court proceedings which require his attendance. That seems to me to identify that, notwithstanding his previous poor record, the present risk of absconding is relatively low.

[59] Fourthly, the adverse impact of a further conviction on the Applicant’s claim to custody in the Family Court proceedings also seems to me to make the likelihood of reoffending somewhat lower than might otherwise appear to be the case looking merely at his past record. Nor does the potential gravity of reoffending seem to me to be as high as the Secretary/Director think. Further, I think the fact that the Applicant has acted as a police informer also comes into account. Without in any way downplaying the seriousness of the offences as was reflected in the sentences, it is correct that the Applicant has not been convicted of an offence of violence. Further, whilst the commission of crime is generally not conducive to the best for society – and not in any way to undermine the decision reflected in the Deportation Order – I am also not convinced that it can really be said that the Applicant poses, or is likely to pose, a real threat to the security of the community.” (emphasis added)

7.6  In my view, the Applicant cannot derive much assistance from Alan Edward for a number of reasons. The assessment pursuant to the guidance set out in Hardial Singh is necessarily fact-sensitive and each case depends on its own facts. The present case is distinguishable from Alan Edward in at least the following material respects. First, the applicant in Alan Edward was conducting the Family Court Proceedings in person. Secondly, the Family Court proceedings in Alan Edward had been instituted and there was an imminent hearing for which the applicant was unable to file affirmation and other materials for that hearing (§38(20)). In the present case, the Family Court proceedings have not been commenced even though a legal aid certificate was granted in August 2025 and there is no suggestion that the requisite court documents cannot be filed with the assistance of the assigned solicitor. As noted above, it is the Applicant’s own position that the assigned solicitors are in control of the intended Family Court proceedings.

7.7  Viewed thus, it seems to me that Coleman J’s observation that the existence of the Family Court proceedings would disincentivize the Applicant from reoffending cannot be directly imported to the present proceedings. There is no guarantee when the Family Court proceedings will be commenced after the Applicant is released from detention. I bear in mind that the offences for which the Applicant was convicted included serious trafficking offences and offences involving deception for which the Applicant was sentenced after the birth of one or all of the Children, and as such (1) the birth of the Children had not deterred the Applicant from committing a criminal offence and (2) the Applicant has only spent very limited time with the Children by reason of his imprisonment. I have not forgotten the fact that the length of the present detention is objectively lengthy, but I do not regard the foregoing as having the effect of ameliorating the assessment that the Applicant poses or is likely to pose a threat or security risk to the community.

7.8  A similar observation may be made in relation to the risk of absconding. Unless the Family Court proceedings are commenced, it seems to me that given the Applicant’s previous absconding records, such risk cannot be discounted.

7.9  I also do not regard the offer of a guarantor does not outweigh the reoffending and absconding risks posed by the Applicant.

7.10  Importantly, the position taken by the Applicant appears to be that the Family Court proceedings will only be commenced after his release from detention, on the basis that, again relying on Alan Edward, that his detention may adversely affect his application in the Family Court. As submitted by the Respondents, if and when the Applicant actually commences a Family Court application, the Director/Secretary will consider the implications and conduct a detention review accordingly. It is also pertinent to note that the Applicant’s assigned solicitors have never taken the position to the effect that the Applicant should first be released before the Family Court application may be commenced.

7.11  Viewed in the above light, I accept the Respondents’ submission that the intended Family Court application does not excuse any failure to cooperate with removal formalities. The observation at Johnson Benjamin §37 set out above is a fortiori given that the Family Court proceeding does not give rise to a legal impediment to the Applicant’s removal from Hong Kong.

7.12  I also take into account that the present detention has been prolonged in part by the Applicant’s own unreasonable behaviour on another front. As at the commencement of the present detention in April 2024, there was no legal impediment to the Applicant’s removal by reason of the Updated Removal Policy since the First JR Leave Application had been dismissed in February 2024. After the aborted Removal Operation, the Applicant made the SC Request. Whilst the making of the SC Request did not give rise to a legal impediment, the Applicant’s removal was withheld because the Director, for the Applicant’s benefit, exercised his discretion not to proceed with removal whilst the SC Request was under consideration. By the commencement of the Second JR Leave Application, a legal impediment was created. As it turned out, by the Court of First Instance’s decision on the Second JR Leave Application, it was held that the SC Request amounted to an abuse of process and a RPO was made.

7.13  For avoidance of doubt, I am prepared to not place any weight on the aborted Removal Operation as a factor to support the Applicant’s unreasonable behaviour, as I can sympathize with his unwillingness to leave without the Children. However, I must emphasize that I do not accept the Applicant’s suggestion that he was misled in anyway during the Removal Operation.

7.14  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. As stated earlier, I have no doubt that if and when the intended proceedings in the Family Court are in fact commenced, such change of circumstances will be properly taken into account in the review of the Applicant’s continued detention.

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