YESI KRISTINA AYU INDRASWARI v. HONG KONG SAR GOVERNMENT

HCAL 1265/2025

[2025] HKCFI 3756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1265 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 dated 29 November 2022 and 13 May 2025. She has been held in immigration detention since 19 December 2024 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the adjourned hearing before me, she has been detailed for 272 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 4 June 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Mr Cliff Chan, Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

1.3  As set out below, shortly before the first hearing on 21 August 2025, the Applicant lodged a request to make a subsequent claim on 13 August 2025 ("SC Request"). At the first hearing, I was not provided with the materials showing how the present detention was considered/reviewed by the Director/Secretary in the light of the SC Request, the hearing was adjourned to 16 September 2025 for the Respondent to update the materials.

2.  Background

2.1  The Applicant is an Indonesian national. She arrived in Hong Kong as a foreign domestic helper on 22 June 2022. Her employment contract was terminated on 25 July 2022 and she attempted to find another employer but to no avail. She was required to, but did not leave Hong Kong by 20 September 2022 and has since overstayed.

2.2  On 18 October 2022, the Applicant was arrested by the police for suspected overstaying and was later referred to the Immigration Department for investigation.

2.3  Whilst detained, on 4 November 2022, the Applicant initiated her non-refoulement claim (“NRC”), which was refused by the Director on 21 December 2022. She then lodged an appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”). She was released on recognizance on 6 January 2023.

2.4  Whilst on recognizance, on 22 February 2024, the Applicant was convicted of “Taking employment while being a person in respect of whom a removal order is in force” and was sentenced to 15 months’ imprisonment.

2.5  On 19 December 2024, the Applicant was discharged from prison upon which the present detention commenced.

2.6  The Applicant’s passport expired on 27 February 2023.

2.7  The Applicant has no family ties in Hong Kong. She claims to have a boyfriend who is also a non-refoulement claimant and subject to a removal order. It has been confirmed that she has a friend who is a Hong Kong permanent resident and willing to act as a guarantor for her release.

3.  NRC and related proceedings

3.1  On 1 December 2023, TCAB dismissed the Applicant’s appeal/petition (“TCAB Decision”).

3.2  On 11 December 2023, the Applicant applied for leave to apply for judicial review against the TCAB Decision (HCAL 2218/2023).

3.3  After request was made by the Department of Justice to the High Court to accord priority to the case, on 24 April 2025, HCAL 2218/2023 was dismissed by the Court of First Instance.

3.4  On 13 August 2025, the Applicant lodged the SC Request. According to the information lodged since the first hearing, priority has been accorded to the resolution of the SC Request, which is expected within 8 weeks from 13 August 2025.

4.  The present detention and its reviews

4.1  The Applicant’s detention is or has been pursuant to the following sections of the Ordinance:

(1)  From 19 December 2024 to 29 April 2025, pursuant to section 32(3A) pending removal pursuant to the Removal Order;

(2)  From 29 April to 12 May 2025, pursuant to section 29(1) pending inquiry as to whether a deportation order ought to be issued;

(3)  From 13 May 2025, pursuant to section 32(3) pending removal pursuant to the Deportation Order.

4.2  As the Applicant’s passport had expired in February 2023, well before the commencement of the present detention, efforts were made to liaise with the Consulate General of the Republic of Indonesia (“CG”) for the issuance of a replacement travel document.

4.3  Throughout the present detention, the Applicant has persistently expressed her unwillingness to return to her home country and refused to render her cooperation in completing the reentry formalities. Were the Applicant to cooperate with the reentry formalities, the replacement travel document would have been issued in around 2 weeks' time. In the light of the fact that cooperation from the Applicant was not forthcoming, arrangements were made with the CG to conduct an in-person interview with the Applicant on 6 August 2025, which interview the Applicant refused to attend. Notwithstanding the Applicant’s refusal to cooperate, the Immigration Department had continued to liaise with the CG seeking alternative means to issue a replacement travel document. As an exceptional arrangement, an emergency travel document with one year validity was issued to the Applicant on 14 August 2025.

4.4  The Applicant’s detention was reviewed on 6 August 2025. Her release from detention was considered to be unwarranted by reason of the following broad grounds:

(1)  HCAL 2218/2023 was refused on 24 April 2025 and there was no longer any legal impediment to the Applicant’s removal;

(2)  The practical impediment to the Applicant’s removal was caused by her refusal to cooperate in completing the reentry formalities;

(3)  The Applicant was likely to abscond or (re)offend;

(4)  The offer of a guarantor had been taken into consideration but did not outweigh the factors against the release of the Applicant.

4.5  On 20 August 2025, the Secretary and the Director reviewed the present detention in the light of the SC Request. A decision was made that the present detention was to continue, as it was considered that the SC Request did not present a significant change in circumstances warranting the Applicant’s release.

5.  The Applicant’s submissions

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

(1)  It is not possible to remove her within a reasonable time;

(2)  HCAL 2218/2023 is still being processed and she has the right to further challenge any unfavourable decision;

(3)  She has not committed any crime associated with violence or of serious nature and promises not to reoffend;

(4)  She has a fixed abode and offers a permanent resident willing to stand as surety with a minimum cash amount of HK$10,000;

(5)  She promises not to abscond and refers to the fact that she had never failed to report recognizance;

(6)  Overall, her detention has become unlawful;

(7)  She suffers from emotional and psychological trauma from being unlawfully detained;

(8)  She fears for her own safety if repatriated back to her home country.

5.2  At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of her application. She supplemented as follows: (1) the condition of her detention is akin to imprisonment, citing examples such as limited access to telephone and generally feeling intimidated by the officers at the detention centre, (2) the medical treatment is inadequate as the doctors at the detention centre are not receptive to her complaints about her condition, (3) the food and hygiene at the detention centre are poor and (4) she asks to be released so that she can deal the problems in Indonesia, and once the problems are resolved, she will return 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 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.”

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 272 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 her 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 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 matters adumbrated above, including (1) the efforts made expedite the resolution of HCAL 2218/2023, (2) 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 (3) the priority accorded to the resolution of the SC Request. It is the intention that a repatriation flight will be arranged following the resolution of the SC Request should it be refused.

7.5  As at the commencement of the present detention, there were both legal and practical impediments to the Applicant's removal. The legal impediment has since been removed with the resolution of HCAL 2218/2023. 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, in the form of the lack of a replacement travel document, has also been resolved despite the Applicant’s refusal to cooperate.

7.6  In this regard, the following observations in Johnson Benjamin are apposite:

“[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.”

7.7  Properly analyzed, whilst it is true that HCAL 2218/2023 was still ongoing as at the commencement of the present detention, efforts were made to expedite its resolution. In any event, during the pendency of the resolution of HCAL 2218/2023, as has been observed in Johnson Benjamin, the concurrent refusal of the Applicant to cooperate with the reentry formalities was unreasonable.

7.8  As regards the SC Request, as I understand the position, a decision has been made to temporarily withhold the removal of the Applicant pending the resolution of the SC Request on the basis that it is a discretion exercised out of indulgence and for the benefit of the Applicant. As set out in Eni Carini v Hong Kong SAR Government [2025] HKCFI 3699 §7.7, the exercise of the discretion in that particular way is not inconsistent with the premise that the Applicant is still being detained pending her removal and whether the period of detention is reasonable is a separate matter to be decided based on the Hardial Singh principles and is a fact-sensitive exercise.

7.9  I am prepared to proceed on the basis that the nature of the Applicant's previous conviction 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 Mr Chan’s submission that, in the light of the Applicant’s stance that she does not wish to be returned to her home country, there is a real risk of the Applicant absconding, 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.

7.11  I acknowledge the fact that the Applicant has a boyfriend here. However, her boyfriend is also a non-refoulement claimant and is subject to a removal order. In such circumstances, the relationship is of rather little weight in light of the other factors.

7.12  In relation to the Applicant's claimed emotional and psychological trauma, apart from the Applicant’s belated bare allegations made at the hearing, 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 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. I also do not regard that Applicant’s belated bare allegations about the living conditions at the detention are to be treated as a weighty factor.

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.