ARISANTI v. HONG KONG SAR GOVERNMENT

HCAL 1059/2025

[2025] HKCFI 3591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1059 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 dated 27 January 2015.  She has been held in immigration detention since 19 November 2024 pursuant to section 32(3A)  of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, she has been detained for 267 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 6 May 2025.  At the hearing, the Applicant appeared in person with the benefit of an interpreter.  Ms Angel Zhi, Senior Government Counsel (Ag), appeared for the Director of Immigration (“Director”).

2.  Background

2.1  The Applicant is an Indonesian national.  On 14 March 2013, she arrived in Hong Kong and was permitted to remain as a foreign domestic helper until 14 March 2015 or 2 weeks after the termination of her employment contract, whichever was earlier.  Her employment contract was terminated on 27 July 2014 and she has overstayed in Hong Kong since 11 August 2014.

2.2  On 6 November and 23 December 2014, the Applicant was convicted of “breach of condition of stay by overstaying” and “breach of condition of stay by taking up unapproved employment” respectively and was sentenced to a total of 2 months’ imprisonment. 

2.3  On 9 December 2014, the Applicant indicated her intention to lodge a non-refoulement claim (“NRC”). After her discharge from prison on 24 December 2014, she was transferred to immigration detention and she was later released on recognizance on 10 February 2015. 

2.4  The Applicant failed to report recognizance on 2 occasions, namely on 3 August 2021 (and resurfaced on 17 August 2021)  and 29 March 2022 (and resurfaced on 31 May 2022).

2.5  On 19 November 2024, the Applicant’s recognizance was ceased upon which the present detention commenced.

2.6  The Applicant has no family ties in Hong Kong.

3.  NRC and related proceedings

3.1  The Applicant’s NRC was rejected by the Director on 2 January 2018.  Her subsequent appeal/petition to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office was dismissed on 27 May 2019 (“TCAB Decision”).

3.2  The Applicant’s application for leave to apply for judicial review against the TCAB Decision (HCAL 2040/2019)  was dismissed on 23 September 2024 (“CFI Decision”). Her subsequent appeal against the CFI Decision (CACV 338/2024)  was dismissed on 13 March 2025 (“CA Decision”). 

4.  The present detention and its reviews

4.1  As the Applicant’s passport had expired on 9 December 2015, even prior to 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 an emergency travel document.

4.2  Throughout the present detention, the Applicant has persistently expressed her unwillingness to return to her home country and refused to cooperate in completing the reentry formalities.  Despite efforts made to explore alternative means with the CG given the Applicant’s refusal to cooperate in completing the reentry formalities, no progress has been made.

4.3  In the latest review conducted on 17 July 2025, the Applicant’s release was considered to be unwarranted by reason of the following broad grounds:

(1)  Her removal was going to be possible within a reasonable time;

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

(3)  She might abscond and/or (re)offend;

(4)  She did not have close connection or fixed abode in Hong Kong;

(5)  There were no other circumstances in favour of her release.

4.4  At the hearing, I was informed that an in-person interview was arranged with the CG on 6 August 2025, which the Applicant refused to attend.

5.  The Applicant’s submissions

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

(1)  The length of her detention has become unreasonable;

(2)  She is not a threat or security risk to the community;

(3)  She has a fixed address and ISS is willing to act as a guarantor for her release;

(4)  She is suffering from her physical ailments (back pain).

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)  she is suffering from physical and mental stress from being detained, (2)  her back pain is caused by a surgery which she had 4-5 years ago at the Queen Elizabeth Hospital, (3)  she has now filed a Notice of Motion to challenge the CA Decision, (4)  there is now a permanent resident by the name of Mr Muhammad Ali who is willing to act as her surety and provide accommodation to her and (5)  she fears 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(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 267 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 his NRC and the court in his 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 efforts made in respect of an emergency travel document, despite the Applicant’s own refusal to cooperate.

7.5  As at the commencement of the present detention, there was no legal impediment to the Applicant’s removal by reason of the Updated Removal Policy.  The Applicant’s understanding that further challenges against the CFI Decision to the higher courts amount to a legal impediment is erroneous.  Her understanding that there was no reason for the present detention to have commenced is therefore also erroneous.  What is clear from the chronology is that the present detention commenced after the legal impediment was removed following the resolution of HCAL 2040/2019.

7.6  The only impediment to the Applicant’s removal was and remains a practical one, namely the need for an emergency travel document to be issued.  Whilst the length of the present detention is objectively lengthy, it has been caused primarily by the Applicant’s own refusal to cooperate with the reentry formalities.  Viewed thus, the length of the present detention is self-induced by the Applicant’s own behaviour.

7.7  In the light of the nature of the Applicant’s criminal record, I am prepared to proceed on the basis that she does not pose a threat or security risk to the community.  I am however satisfied that the risks of reoffending and abscondment are real (especially given her professed unwillingness to return to her home country, as evidenced by her recent refusal to attend the in-person interview with the CG).

7.8  I accept Ms Zhi’s submission that 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.

7.9  The Applicant originally claimed that ISS was willing to act as her guarantor for her release.  There was, however, no indication that she has made any previous requests showing that ISS had agreed to act as her guarantor.  Whilst the Applicant has now put forward another guarantor (in the form of Mr Ali), I agree with Ms Zhi that the offer of a guarantor does not outweigh the other factors against her release.

7.10  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.

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