ENI CARINI v. HONG KONG SAR GOVERNMENT

HCAL 1389/2025

[2025] HKCFI 3699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1389 OF 2025

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BETWEEN

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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 28 April 2021 and 11 December 2024. She has been held in immigration detention since 20 December 2024 pursuant to section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the adjourned hearing, she has been detained for 252 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 17 June 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Mr Alan Hung, Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”) at the hearing on 19 August 2025. At the hearing on 28 August 2025, Mr Thomas Tong appeared together with Mr Hung for the Director and the Secretary.

1.3  As will be seen below, the hearing on 19 August 2025 was adjourned, primarily as a result of 2 new developments which had not been addressed adequately by the Respondent. First, shortly before the hearing on 19 August 2025, the Applicant on 11 August 2025 made a request to make a subsequent claim (“SC Request”). At the hearing on 19 August 2025, there were then no reviews of the Applicant’s detention in the light of the SC Request. Secondly, as will be seen below, the Applicant did not render her cooperation to complete the reentry formalities, but a replacement travel document was issued on 14 August 2025. The Applicant disputed that the photograph in the replacement travel document was a photograph of her. The hearing on 19 August 2025 was therefore adjourned to 28 August 2025 for the Respondent to deal with the new developments.

2.   Background

2.1  The Applicant is an Indonesian national. On 4 July 2019, she arrived in Hong Kong and was permitted to remain for employment as a foreign domestic helper until 2 January 2021 or 2 weeks after termination of employment contract, whichever was earlier. Upon termination of the employment contract and an application for extension of stay made on 8 April 2020, she was permitted to remain in Hong Kong as a visitor until 8 May 2020. On 9 May 2020, she did not depart from Hong Kong as required and has overstayed since then. She surrendered to the Immigration Department on 10 March 2021 and raised a non-refoulement claim (“NRC”) on 8 April 2021.

2.2  Whilst on recognizance, on 9 April 2024, the Applicant was convicted of “person with a removal/deportation order taking employment and establishing business”, “possession of forged identity card” and “using a forged identity card”. She was sentenced to 15 months’ imprisonment for each of these offences, to run concurrently. The present detention commenced upon her discharge from prison.

2.3  The Applicant claims that she does not know the whereabouts of her passport.

2.4  The Applicant has a boyfriend who is a Hong Kong permanent resident and willing to act as a guarantor for her release.

3.   NRC and related proceedings

3.1  The Applicant’s NRC was rejected by the Director on 11 June 2021. Her subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 25 May 2023 (“TCAB Decision”).

3.2  On 5 June 2023, the Applicant applied for leave to apply for judicial review against the TCAB Decision (HCAL 868/2023). On 28 January 2025, the court indicated that it would hand down its decision as soon as possible or in late March 2025. On 4 March 2025, the court dismissed HCAL 868/2023.

3.3  As mentioned above, on 11 August 2025, the Applicant made the SC Request. The Director’s preliminary view, subject to any further evidence or submissions to be submitted by the Applicant, is that the matters relied on in the SC Request do not amount to any significant change of circumstances since the NRC to satisfy him to allow the Applicant to make a subsequent claim pursuant to section 37ZO of the Ordinance. In any event, the Director has temporarily decided to withhold the removal of the Applicant out of the indulgence pending the disposal of the SC Request, which process he estimates can be concluded within 8 weeks from 11 August 2025.

4.   The present detention and its reviews

4.1  Even prior to the commencement of the present detention, the Immigration Department had begun to liaise with the Consulate General of the Republic of Indonesia in Hong Kong (“CG”) for the issuance of a replacement travel document.

4.2  Throughout the present detention, the Applicant has persistently maintained her reluctance to return to her home country and refused to cooperate in completing the reentry formalities. Generally speaking, an emergency travel document could be issued in around 2 weeks upon completion of the reentry formalities.

4.3  Notwithstanding the Applicant’s refusal to cooperate, the Immigration Department had attempted to liaise with the CG on possible alternative means for issuing a replacement travel document. On 6 August 2025, an in-person interview was arranged to take place at the detention centre, which interview the Applicant refused to attend.

4.4  Despite the Applicant’s refusal to cooperate in completing the reentry formalities, the Immigration Department did continue to liaise with the CG in seeking alternative means to issue a replacement travel document. Following the Applicant’s refusal to attend the in-person interview on 6 August 2025, the CG granted an exceptional approval to issue a replacement travel document upon submission of her recent photographs. Materials have now been placed before me to confirm that the Immigration Department submitted the Applicant’s photographs taken at the commencement of the present detention. The CG issued the replacement travel document on 14 August 2025 which the Immigration Department collected on 15 August 2025. Having examined the photograph in the replacement travel document, I am satisfied that it is a photograph of the Applicant.

4.5  In the review of the Applicant’s detention conducted in July 2025 prior to the 19 August 2025 hearing which did not take into account the SC Request subsequently made, her release was considered to be unwarranted for the following broad reasons:

(1) There was no longer any legal impediment to her removal;

(2) She had persistently refused to cooperate in completing the reentry formalities;

(3) She posed, or was likely to pose, a threat or security risk to the community;

(4) She did not have a fixed abode in Hong Kong and had a history of using forged identity card;

(5) She might abscond or (re)offend;

(6) The offer of a guarantor did not outweigh other factors in support of her continued detention.

4.6  In the reviews conducted during the adjournment, the continued detention of the Applicant was justified on the above grounds and the additional grounds that, despite the SC Request, there remained a prospect of removing her within a reasonable time and the continued detention was inflicted by herself as she had adopted a delaying tactic.

5.   The Applicant’s submissions

5.1  In her written materials, the Applicant puts forward the following grounds:

(1) Her deportation cannot be effected within a reasonable time;

(2) Her NRC was still being processed and she has the right to complete all appeals and to request to make a subsequent claim;

(3) She does not have any criminal records related to violence;

(4) She has a fixed address and is willing to comply with reporting conditions, which she has dutifully complied with in the past;

(5) She offers HK$50,000 as bail money and claims that a guarantee is to be given by ISS;

(6) Her detention has become unlawful;

(7) No active steps have been taken to effect her removal;

(8) She suffers from emotional and psychological trauma from being unlawfully detained.

5.2  At the hearings, the Applicant confirmed that the above was an accurate summary of the grounds of her application. She supplemented as follows: (1) the medical treatment at the detention centre is unsatisfactory and she points out that there has been discharge of blood from her vagina and she has been affected by the aftermath of a knee surgery carried out in 2020, (2) she has already served her prison term for her convictions, (3) she reiterates her wish to be released and (4) she did not attend the in-person interview on 6 August 2025 as she feared for her own safety if returned to her home country.

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 Respondent 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”

7.   Analysis

7.1  During the present detention, the Applicant is and has been detained pursuant to section 32(3) 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 252 days, against which the various other factors must be weighed and balanced.

7.3  Subject to what is set out below, 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 matters adumbrated above, including the efforts made to liaise with the CG to issue a replacement travel document to the Applicant, despite her refusal to cooperate in completing the reentry formalities and the attempts made to expedite the resolution of HCAL 868/2023 and now the SC Request.

7.4  As at the commencement of the present detention, there were both legal and practical impediments to the Applicant’s removal. The legal impediment has been removed since the handing down of the decision in HCAL 868/2023. The Applicant’s understanding that any further legal challenges to the higher courts would create a legal impediment is erroneous by reason of the Updated Removal Policy. The practical impediment has also been removed by the issuance of the replacement travel despite the Applicant’s refusal to cooperate in completing the reentry formalities. In my view, whilst the period of detention is objectively lengthy, it has been lengthened by the Applicant’s own unreasonable behavior.

7.5  In any event, even during the period in which the result of HCAL 868/2023 was pending, the Applicant should have cooperated in completing the reentry formalities. As observed in Johnson Benjamin:

[37] 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”.

7.6  At the hearing on 19 August 2025, I sought assistance from the Respondent as to the reason for not removing the Applicant following the issuance of the replacement travel document, since the SC Request does not create a legal impediment. As such, it appears clear that the Applicant can be removed but a decision has been made to continue her detention by reason of the SC Request. On one view, the continued detention is not pending removal under section 32(3) of the Ordinance but pending the resolution of the SC Request. Since the SC Request is not “torture claim” defined at section 37U, the Applicant’s detention cannot be justified under section 37ZK, namely pending final determination of a torture claim.

7.7  I have considered the further submissions lodged by the Respondent during the adjournment. I am persuaded of the following matters: (1) the decision to temporarily withhold the removal of the Applicant pending the resolution of the SC Request is a discretion exercised out of indulgence and for the benefit of the Applicant, (2) in particular, the exercise of the discretion in that particular way is not inconsistent with the power conferred under section 32(3) that the Applicant is still being detained pending her removal and (3) whether the period of detention is reasonable is a aspirate matter to be decided based on the Hardial Singh principles and is a fact-sensitive exercise.

7.8  In the particular circumstances of this case, I take stock of the following matters. First, the Applicant was released on recognizance during the pendency of the resolution of the NRC and was only detained after she was convicted in April 2024 and the present detention commenced after her discharge from prison. As such, her behaviour has given rise to a risk of (re)offending. Secondly, I accept the Respondent’s submission that, given the timing of the SC Request and (on the present material) the regurgitation of materials relied upon in the NRC in the SC Request, the assessment that the SC Request is a last-minute attempt by the Applicant to create an obstacle to delay her removal cannot be said to be an unreasonable assessment - the present case is a far cry from a situation where an applicant is on good behaviour and a request to make a subsequent claim is made timeously and based on cogent material indicating a significant change of circumstances.

7.9  In the light of the nature of the Applicant’s criminal records, I am prepared to proceed on the basis that it does not give rise to a serious concern that she poses a threat or security risk to the community. However, there remains a risk of (re)offending, which risk, if materializes, may delay her removal by reason of consequential investigations and potential court proceedings.

7.10  Perhaps more significantly, I accept the Respondent’s submission that there is a real risk of the Applicant absconding given her professed reluctance to return to her home country and a history of using forged identity card, which risk, if materializes, will defeat the purpose for which the power for detention is conferred. I do not regard the offer of a guarantor and the Applicant's own promise not to abscond have the effect of outweighing the risk of absconding. In any event, there is no material to suggest that ISS has agreed to act as her guarantor.

7.11  In relation to the Applicant's claimed physical ailments and mental stress, 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 her continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.12  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 assert the concerns underpinning her NRC and the court in her habeas corpus application will not look at the merits of any such claim.

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 SC Request) has been and will remain lawful. I have no doubt that the present detention will be kept under review as there are a number of permutations which I will refrain from speculating – for example, were the SC Request refused and should the Applicant apply for leave to apply for judicial review against that refusal, the Updated Removal Policy would have the effect of further delaying the Applicant’s removal until the resolution of those judicial review proceedings. It is plain that a further assessment will have to be conducted in the light of the further extended detention.

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