MALLAWA ARACHCHIGE AMITHA PRIYANGANIE MALLAWA ARACHCHI v. HONG KONG SAR GOVERNMENT

HCAL 1617/2025

[2025] HKCFI 3792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1617 OF 2025

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D E C I S I O N

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A. Introduction

1.  I have before me an application for writ of habeas corpus by the Applicant filed on 17 July 2025 seeking her release from Nei Kwu Correctional Institution where she is presently being detained (“the Application”).  She has been detained since 12 May 2025 making the period of detention to date 102 days (“the Detention”).

2.  On 23 July 2025, I directed the Respondent to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.  The Respondent’s Response to the Applicant’s Habeas Corpus Application dated 12 August 2025 (“the Response”)  was lodged.  It is stated therein that the Response is filed on behalf of the Director of Immigration (“the Director”).

3.  At today’s hearing, Mr Levaire, counsel, appeared to represent the Applicant.  He informed me that he (and those instructing him)  were only engaged by the Applicant two days ago[1]. In the circumstances, I allowed him to make submissions despite no skeleton submissions were filed in advance of today’s hearing to supplement the submissions made in the Applicant’s Affirmation.

4.  The Director was represented by Mr Cheung, Acting Senior Government Counsel.

5.  This is my Decision having heard the oral submissions of Mr Levaire and Mr Cheung.

B.   Background

B1. Immigration status and stay in HK

6.  The Applicant is a Sri Lankan national born on 11 October 1976.

7.  She arrived in Hong Kong on the strength of her Sri Lankan passport on 28 June 2005 and was permitted to remain as a visitor until 28 July 2005.  However, she did not depart and overstayed since 29 July 2005.

8.  On 18 October 2005, the Applicant was arrested by the Police for failing to carry a proof of identity. 

9.  On 22 October 2005, the Applicant was referred to the Immigration Department (“ImmD”).

10.  On 29 October 2005, the Applicant was convicted of breach of condition of stay by overstaying and was sentenced to 7 day’s imprisonment suspended for 2 years.

11.  On 11 November 2005, a removal order (“RO”)  was issued against the Applicant pursuant to s.19(1)(b)  of the Immigration Ordinance, Cap. 115 (“IO”)

12.  On 15 November 2005, the Applicant appealed against the RO but was dismissed by the Immigration Tribunal on 24 November 2005.

13.  On 13 August 2006, the Applicant was released on recognizance.

14.  On 24 March 2014, the Applicant was arrested for suspected unlawful employment and was remanded in jail custody.  She was released on court bail on 13 May 2014.

15.  On 19 May 2014, the Applicant reported to ImmD and explained she failed to report recognizance since 24 March 2014 as she was remanded in jail custody.  She was allowed to resume recognizance.

16.  On 13 June 2017, 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 2 months’ imprisonment.

17.  The Applicant’s recognizance was ceased on 12 May 2025 and was detained under s.32(3A)  of IO.

B2.  The Applicant’s Torture Claim, Non-Refoulement Claim (“NRC”)  and related legal proceedings

18.  The Applicant first lodged a torture claim on 15 November 2005.  On 26 January 2008, the Applicant’s torture claim was refused.

19.  By letter dated 12 June 2009, the Applicant was informed that she was entitled to a re-screening of her torture claim under the enhanced screening mechanism.  The Applicant’s torture claim was re-screened and rejected on 14 February 2012.

20.  On 28 February 2012, the Applicant lodged a notice of petition against the rejection of her torture claim but this was dismissed by the Adjudicator of the then Petition Team of the Security Bureau on 17 April 2012 (“Adjudicator’s Decision”).

21.  On 31 December 2013, the Applicant applied for leave for judicial review against the Adjudicator’s Decision.

22.  On 8 September 2014, the Court of First Instance grant leave to the Applicant and the Adjudicator’s Decision was quashed on 29 April 2015.

23.  The Applicant’s remitted appeal was adjourned sine die on 11 July 2017 pending the assessment of the Applicant’s NRC under the Unified Screening Mechanism on all applicable grounds other than torture.

24.  On 27 November 2017, the Applicant’s NRC was rejected by the Director (“the Director’s Decision”).

25.  On 15 October 2021, the Applicant’s appeal/petition against the Director’s Decision was dismissed (“the Board’s Decision”).

26.  On 17 January 2022, the Applicant applied for leave to apply for judicial review against the Board’s decision out of time (“the JR Leave Application”).  

27.  On 6 June 2025, the Department of Justice, on behalf of the Director informed the Court of First Instance that the Applicant was currently held in immigration detention and requested priority be accorded to the JR Leave Application.

28.  On 4 August 2025, an oral hearing of the JR Leave Application took place and a letter was issued to the Applicant informing that judgment will be ready for handing down as soon as possible or in early November 2025.

B3. Steps towards the removal of the Applicant

29.  Even prior to the Detention, the Director sent a letter to the Embassy of the Democratic Socialist Republic of Sri Lanka (“CG”)  seeking assistance to issue a replacement travel document enclosing a copy of the Applicant’s lost Sri Lankan passport.

30.  When the Applicant’s recognizance was ceased on 12 May 2025, she demonstrated strong resistance to leave Hong Kong and refused to complete re-entry formalities or to attend interview with CG.

31.  In all subsequent ImmD’s interviews with the Applicant (on 20 May 2025, 30 May 2025, 2 July 2025, 29 July 2025 and 12 August 2025), she maintained her unwillingness to return and to complete the application form for a travel document.

32.  On 20 May 2025, a letter was sent by ImmD to CG to seek alternative means to issue a travel document to the Applicant or confirm her re-entry to Sri Lanka regardless of her uncooperative attitude.  Chaser letters were sent by ImmD to CG on 14 July 2025 and 15 August 2025.

B4. Reviews of Detention

33.  The last review of detention conducted by the Director was on 8 August 2025.  Having considered and balancing the following factors, it was decided by the Director that the Applicant should remain in detention:

(1)  Upon the disposal of the JR Leave Application there will be no outstanding NRC related proceedings and the Applicant is liable to be removed.  According to the letter from the High Court, judgment will be handed down as soon as possible or in early November 2025;

(2)  The Applicant has been uncooperative in the re-entry formalities which has delayed her removal.  It would take within one month for CS to issue a travel document if formalities are complied with;

(3)  Although she had only one “technical” absconding record (being arrested and remanded), taking into consideration her resistance to removal, there is a real and substantial risk of absconding or re-offending; and

(4)  Even taking into account the Applicant has a friend who is a Hong Kong permanent resident willing to stand as guarantor, balancing all factors including the period of detention, release was not warranted.

C.   The Applicant’s Submissions

34.  In the Applicant’s Affirmation the following submissions were made:

(1)  The purpose of the Detention is not to effect removal but to protect the public and awaiting final determination of her NRC;

(2)  The period of the Detention is unreasonable;

(3)  Her removal cannot be effected within a reasonable time as the Respondent cannot say when she can be removed and she still has a pending JR Leave Application which is ongoing and she can still appeal;

(4)  She has never committed any offence connected with violence and undertakes that she will not commit any offence or engage in illegal activities and therefore will not pose any security risk or threat to the community;

(5)  Her friend, a Hong Kong permanent resident, is willing to stand as her surety/guarantor;

(6)  She will reside in a fixed abode where she can easily be located;

(7)  She can provide surety in cash of HK$10,000, will report recognizance and comply with any condition as the Director thinks fit; and

(8)  The Director has not taken active steps for her removal including liaising with CG regarding issuance of a travel document.

35.  At the hearing, Mr Levaire made the following further submissions not already mentioned in the preceding paragraph:

(1)  In the Director’s Review of Detention on 12 May 2025, the only ground given for the Applicant remaining in detention was that her removal is going to be possible within in a reasonable period of time.  The additional grounds which include the risk of absconding and re-offending now relied upon are clearly an afterthought, not genuine and there is a shifting of ground;

(2)  It is misconceived for the Director to take the view that after the determination of the JR Leave Application there will be no outstanding NRC related claims and the Applicant is liable to be removed.  There is a good chance of the Applicant succeeding in her JR Leave Application  in view of her previous successful challenge to the Adjudicator’s Decision and if so, there will be further hearings in relation to the NRC;

(3)  The Applicant’s failure to cooperate with the re-entry formalities to date has not prolonged or delayed her removal as there is a legal impediment to her removal.  The present case is factually distinguishable from Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582;

(4)  Upon legal advice, the Applicant is now willing to provide an undertaking to the court to inter alia cooperate fully with ImmD in obtaining a replacement passport or emergency travel document, and once the JR Leave Application is dismissed, with no further legal impediments to removal, she will cooperate with the removal arrangements voluntarily;

(5)  She has never absconded and her failure to report recognizance was technical only as she was remanded in jail; and

(6)  The further detention of the Applicant until November 2025, making the total period of detention in total 6 months, is too long, and the legal impediment may continue;

(7)  In Maroof Ashar v Director of Immigration & Anor [2025] HKCFI 2030, facts which are similar to the present case, where there the application for leave for judicial review was to be heard 3 months away, the learned judge found that as it would have been apparent that the Applicant cannot be removed for a least another 3 to 4 months it would have been apparent that the Applicant cannot be removed within a reasonable period: see §31(5);

(8)  In Maroof Ashar, the learned judge commented on the undesirability of detaining an applicant and then requesting the court to accord priority just because the applicant has lodged a habeas corpus application.  Where the applicant cannot be accused of delaying the normal course of his legal proceedings it would be inappropriate to detain him prematurely and then ask the court to expedite the processing of his judicial review application: see §31(6);

(9)  In Maroof Ashar, the learned judge also took the view that an applicant’s unwillingness to return can sometimes be seen as an abscondence risk.  This is usually when the application for judicial review has been determined and the applicant is unsuccessful.  Where his application for judicial review has not been determined, his unwillingness to be removed will be justified.  In that case, the judge held that the applicant’s unwillingness to be removed should not be seen as an abscondence risk: see §31(10); and

(10)  The Applicant’s long-time friend is in court today and is willing to provide cash surely of HK$10,000 and swear on oath.

36.  I will take into account these submissions and give them such weight in the balancing exercise as seems to me to be appropriate.

D.   Applicable Principles

37.  The applicable principles to be applied in an application for habeas corpus are well-established.  They were set out by the Court of Appeal in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99.  See in particular the summary of the principles at §164.

38.  I also remind myself that the burden is on the respondents to an application for writ of habeas corpus to justify the lawfulness of the applicant’s detention.

39.  Under s.32(4A)  of IO, 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, 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;

(2)  The time required for the issue of the authorization referred to in (1);

(3)  Whether the person poses, or is likely to pose, a threat or security risk to the community; and

(4)  Factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

40.  Moreover, the Court of Appeal recently provided guidance in Johnson Benjamin on how the court ought to approach a detainee’s own unreasonable conduct and acts which caused, necessitated or prolonged any period of detention.  See 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 behaviour or conduct 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 or 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.”

41.  Furthermore, at §37, it was held that even if there are ongoing NRC, 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 her removal once the NRC is disposed of. 

E.   Analysis

42.  With the above principles in mind, I consider whether the Detention is lawful.

43.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A)  of IO.  There was no successful challenge to the RO which remains valid and extant.

44.  The question which then falls for determination is whether the detention has become unreasonable in all the circumstances and hence unlawful.  That question requires an assessment in accordance with the Hardial Singh principles, namely that:

(1)  The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

45.  The starting point is that the period of detention to date is 102 days, against which the other factors must be weighed and balanced.

46.  I accept that the Applicant has been detained for the purpose of her removal from Hong Kong and that the power of detention is being used only for that purposes.  This is evident from the Director’s pro-active effort in seeking a travel document for the Applicant even before the Detention and the numerous interviews with the Applicant to seek her cooperation with the intended removal.  Therefore HS1 is satisfied.

47.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the Director’s proactivity to seek issuance of a travel document to the Applicant, the continued liaison with CG and interviews with the Applicant to secure the return of the Applicant to Sri Lanka once there is no legal impediment to her return.  This is also evident from the Director’s requesting the Court of First Instance to accord priority to the determination of JR Leave Application.  HS4 is also satisfied.

48.  Given that the JR Leave Application has been heard and the court has indicated that a decision will be handed down as soon as possible and by early November 2025, there is a sufficiently clear timescale within which the Applicant may be removed.  If the Applicant cooperates, it is reasonable to think that a travel document will be issued and her removal can be effected within a reasonable period.   The Applicant now has indicated that she is prepared to cooperate with the obtaining of travel document and the removal arrangements.

49.  Although Mr Levaire submitted that the Applicant may succeed in the JR Leave Application and the present legal impediment to removal may continue, it is not necessary or appropriate at this stage to second-guess what will be the outcome.  Matters can be subject to further review at the time or and in light of that outcome.  There is no reason to believe that there will not be further reviews of the Applicant’s detention in the interim period.  Mr Cheung has confirmed that is the case.  See Ko Kang Suk v Director of Immigration & Anor [2023] HKCFI 2461 at §§43-44 per Coleman J.

50.  Whilst I do not believe in view of the nature and length of sentence imposed in the Applicant’s previous convictions that there is a real security risk to the community, I accept the Director’s assessment that with the Applicant’s stated unwillingness to return to Sri Lanka and refusal to cooperate with the re-entry formalities, and bearing in mind that she is an overstayer, there is a real risk of the Applicant absconding.  As held in Ko Kang Suk at §34, the applicant’s expressed unwillingness to return is relevant to the assessment of the risk of absconding and even if the unwillingness is connected with the ongoing NRC that does not remove its weight entirely.  I do not read Maroof Ashar §31(10)  as laying down any principle fixed in stone and besides, the fact that a judge took the view in one case that the unwillingness to be removed of the applicant in that case did not point to a risk of absconding does not mean the same applies in every case.  In that case, the Applicant’s travel document had not expired by the time of the hearing so there was no demonstrated unwilling to remove and to cooperate with the re-entry formalities.   Turning back to the present case, if the Applicant was to abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO.   The risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention.  See Harjang Singh at §164(14).

51.  I do not believe that Mr Levaire’s other submissions have the effect of outweighing the matters identified in the preceding paragraphs to justify the Applicant’s release.  Each case is to be decided on the facts and circumstances of their own case and comparison with previous decided cases are of limited assistance.

52.  Overall, weighing the period of detention against all other factors, HS2 and HS3 are also satisfied.

F.   Conclusion

53.  For the above reasons, I dismiss the Application with no order as to costs.