NARASINGHE MUDIYANSELAGE KUSHAN P. N. v. DIRECTOR OF IMMIGRATION

HCAL 2449/2025

[2026] HKCFI 920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2449 OF 2025

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DECISION

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1.  Introduction

1.1  The Applicant is subject to Removal Orders made on 16 July 2005 and 23 August 2018 (respectively “1^st Removal Order” and “2^nd Removal Order”).  He has been held in immigration detention since 8 August 2025 pursuant to section 32(3A)  of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 190 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus made on 3 November 2025.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Ms Celina Lam, Government Counsel, appeared for the Director of Immigration (“Director”).

2.  Background

2.1  The Applicant is a Sri Lankan national.  He is a returned removee. 

2.2  On 6 December 2004, the Applicant arrived in Hong Kong as a visitor and was permitted to remain until 5 January 2005.  He did not depart as required and was arrested by the police for overstaying on 12 June 2005.  On 21 June 2005, he was convicted of “breach of condition of stay” and sentenced to 1 month’s imprisonment suspended for 2 years.

2.3  On 21 July 2005, he was removed pursuant to the 1^st Removal Order.

2.4  On 24 June 2009, the Applicant surrendered to the Immigration Department. He claimed that he entered Hong Kong illegally via the Mainland on 29 October 2005.  He was released on recognizance on 9 July 2009.  The Immigration Department decided not to prosecute the Application in respect of the suspected offence of illegal remaining.

2.5  In view of the Applicant’s lack of a travel document, the Immigration department sought assistance from the Embassy of the democratic Socialist Republic of Sri Lanka (“Embassy”)  to issue a travel document to the Applicant on a number of occasions even prior to the commencement of the present detention.

2.6  The Applicant married Madam Lau Man Ting (“Wife”), a resident in Hong Kong, on 1 June 2013.  They have no children.  The Wife has indicated her willingness to be the Applicant’s guarantor were he released on recognizance. 

2.7  On the materials before me, at around the time of the commencement of the present detention, the Wife started to suffer from various health conditions:

(1)  A letter from the Applicant’s solicitors (“KCL”)  to the detention centre dated 18 August 2025 requested bail to be granted to the Applicant, on the basis that the Wife was diagnosed with cataract necessitating surgical intervention and the Wife was “bereft of any familial support within Hong Kong to provide requisite care during the operative and convalescent periods”;

(2)  On 12 September 2025, the Wife attended Pok Oi Hospital for unsteady gait and CT scan revealed brain lesion and hospitalization was advised.  On the same day, she was admitted to Tuen Mun Hospital and was later diagnosed to be suffering from brain tumour, retinal detachment and acute transient ischaemic attack.  She underwent operation on 23 September 2025 and was discharged from the hospital on 3 October 2025.

2.8  On 25 October 2025, the Applicant submitted an application for dependant visa with the Wife as his sponsor, which application was withdrawn by the Wife on 15 January 2026.  On the next day, the Applicant submitted another application for dependant visa with the Wife as his sponsor, which application is under processing.

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

3.1  On 26 July 2015, the Applicant’s NRC, premised on risk of torture, BOR3 risk and persecution risk, was rejected by the Director.  Thereafter, on 4 August 2017, the Applicant’s NRC premised on BOR 2 risk was rejected by the Director.  The applicant’s appeal/petition against the foregoing decisions to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office was dismissed on 26 July 2018 (“TCAB Decision”).

3.2  The Applicant’s subsequent challenges against the TCAB Decision in court proceedings were all unsuccessful, culminating in a dismissal by the Appeal Committee of the Court of Final Appeal under FAMV606/2022 on 24 April 2024.

4.  The present detention and its reviews

4.1  The Applicant was interviewed on 8 August 2025 during which he expressed refusal to leave Hong Kong and complete the reentry formalities.  His recognizance was ceased and the present detention commenced.

4.2  Immediately after the commencement of the present detention, on 11 August 2025, the Immigration Department requested assistance from the Embassy to issue a travel document to the Applicant, which request could only be acceded to after the Applicant completed the reentry formalities.  On 14 August 2025, the Immigration Department also made enquiries as to whether there were alterative means to issue a travel document in the light of the Applicant’s uncooperative attitude.

4.3  At interviews conducted during the present detention (more than once in any given month except for December 2025 during which there was only one such occasion), the Applicant expressed his unwillingness to return to his home country and refusal to cooperate in completing the reentry formalities.  In the light of the Wife’s health conditions, he had understandably on various occasions requested bail to take care of the Wife.  However, somewhat inconsistent with the information provided by KCL, at an interview conducted on 10 October 2025, the Applicant informed the immigration officer that at the time of the Wife’s discharge from the hospital on 3 October 2025, she was assisted by her sister and a friend.

4.4  In the latest review of the present detention conducted on 22 January 2025, the Applicant’s release was considered to be unwarranted by reason of the following broad grounds:

(1)  There was no legal impediment to the Applicant’s removal;

(2)  If the Applicant cooperated, a travel document could be issued within one month’s time such that his removal could be effected within a reasonable time;

(3)  The Applicant’s removal was directly or indirectly prevented or delayed by his own unreasonable behaviour and conduct;

(4)  The risk of the Applicant absconding was not low;

(5)  The Applicant was convicted of breach of condition of stay in 2015 and was a returned remove who entered Hong Kong illegally;

(6)  His local connection had been taken into account but such factor did not outweigh other factors against his release;

(7)  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 recognizance ceased without any prior notice;

(2)  The Wife is suffering from health conditions and the requests made by him and the Wife for bail so as to allow him to take care of her have been ignored;

(3)  He does not have any criminal record and has always complied with recognizance conditions.

5.2  At the hearing, the Applicant confirmed that the above is an accurate summary of his grounds.  He supplemented as follows: He has now made a decision that he will return to his home country with his wife.  He clarified that his extant application for dependant visa was made because he was told by the officer at the detention centre that it might assist the present application. He asks for bail for 3-6 months in order to organize his affairs in Hong Kong and make arrangements in his home country to enable he and his wife to relocate back to his 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."

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 section 32(3A)  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 190 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 has acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.

7.4  Given the nature of the Applicant’s criminal record (only one occasion for breach of condition of stay in 2005), I am prepared to proceed on the basis that the Applicant does not present a threat of security risk to the community. I also accord weight to the fact that the Applicant has remained on good behaviour since 2005 and I consider his application in the light that the risk of (re)offending is on the low side.

7.5  Given the Applicant’s local connection and the fact that there is no history of the Applicant having failed to comply with recognizance conditions, I am also content to proceed on the basis the risk of the Applicant absconding does not form a weighty consideration.

7.6  However, what is significant is that, as at the commencement of the present detention, there was no legal impediment to the Applicant’s removal. The only impediment was, and remains, a practical one, namely the need for a travel document to be issued to the Applicant and that process has been frustrated only by reason of the Applicant's refusal to cooperate to complete the reentry formalities.  Had he cooperated, the Applicant would have been released from detention (albeit in the form of removal from Hong Kong).  Viewed thus, the length of the present detention is entirely self-induced and has been unnecessarily prolonged.

7.7  Based on his written materials, the only substantive reason proffered by the Applicant to support the present application (and his plea that he should be permitted to remain in Hong Kong)  is his wish to remain next to the Wife.  As much as I sympathize with the Applicant, the fact of the matter is that the 2^nd Removal order remains extant and enforceable.  At the time the Applicant decided to marry the Wife in 2013, he plainly knew that he had entered Hong Kong illegally, having surrendered to the Immigration Department for illegal remaining in June 2009.  He must have realized that there was a risk that he would be removed from Hong Kong in the event of his NRC not succeeding.  In that sense, the Applicant must be taken to have entered into the marriage with eyes wide open to the risk of removal.  I accept Ms Lam’s submissions that any perceived care and company which the Applicant might provide to the Wife cannot negate the 2^nd Removal Order, which the is the purpose of the Present Detention.  As has been stated at Harjang Singh §156:

“However, Ms Cheung is on stronger ground when she identifies that, when reviewing reasonableness in this case, the Judge did consider the Applicant’s family circumstances but decided to give it little weight, and it cannot be said that that is wrong in law. Ms Cheung is also correct to point out that the family circumstances might be considered to have little impact in this case, as the Applicant is being held pending deportation, namely to be removed from his family in Hong Kong anyway, so that the factor might be of little significance when weighed against matters overall.” (emphasis added)

7.8  As regards the Applicant’s intention to relocate back to his home country with the Wife, this is only made apparent for the first time at the hearing.  Proceeding on the basis of the relocation, there is in fact even more reason that he should comply with the reentry formalities such that a travel document may be issued to him.  Were he to comply, there is the added benefit that he can return back to his home country to make advanced arrangements (accommodation or otherwise)  for the intended relocation of the Wife.

7.9  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.  It seems to me that as long as the Applicant remains obdurate in refusing to complete the reentry formalities, any prolongation of the present detention is self-induced and cannot be regarded as unreasonable. Whether any indulgence will be granted to him after a travel document is issued to him (in the sense of a brief period of bail to enable him to organize his affairs in Hong Kong)  may then be reassessed under the then prevailing circumstances.

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