KHOIRUL NURKHASANAH v. HONG KONG SAR GOVERNMENT

HCAL 2173/2025

[2025] HKCFI 5477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2173 OF 2025

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DECISION

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A.  Introduction

1.  I have before me an application for writ of habeas corpus by the Applicant filed on 29 September 2025 seeking her release from Nei Kwu Correctional Institution where she has been detained since 28 February 2025 (“the Application”).  The period of detention to date is 258 days (“the Detention”).

2.  On 3 October 2025, I directed the named Respondent to the Application inter alia to lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.  An Initial Response of the Respondent dated 30 October 2025 (“the Response”)  has been lodged.  In the Response, it was submitted inter alia that as the Applicant has been detained under s.32(3A)  of the Immigration Ordinance, Cap. 115 (“IO”)  as authorised by the Director of Immigration (“the Director”), the proper respondent should be the Director.  I agree that the proper Respondent to the Application should be the Director and the Application is to be treated as such.

3.  At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.  She has confirmed that she has been served the Response and a bundle of documents prepared by the Department of Justice acting on behalf of the Respondent.

4.  This is my Decision having heard the oral submissions of the Applicant and Mr Hor, Acting Senior Government Counsel, appearing for the Respondent.

B.  Background

B1.  Immigration status and stay in HK

5.  The Applicant is an Indonesian national, born in 1983.

6.  On 6 November 2010, the Applicant arrived in Hong Kong on the strength of her Indonesian passport and was permitted to remain in Hong Kong for employment as a foreign domestic helper until 6 November 2012 or two weeks after termination of her contract, whichever was earlier. Her contract was prematurely terminated on 30 May  2011.  She did not depart and overstayed since 14 June 2011.

7.  On 11 June 2020, having gone underground for 9 years, the Applicant was arrested by the Immigration Department (“ImmD”)  for overstaying.

8.  On 13 June 2020, the Applicant was convicted of breach of condition of stay by overstaying and was sentenced to 8 months’ imprisonment.

9.  On 21 November 2020, upon discharge from prison, the Applicant was transferred to ImmD. 

10.  The Applicant was released on recognizance on 3 December 2020.

11.  A removal order (“RO”)  under s.19(1)(b)  of IO was issued against the Applicant on 14 December 2020.

12.  Upon a review of detention, on 28 February 2025, the Applicant’s recognizance was ceased and she was detained.

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

13.  The Applicant lodged a NRC on 17 September 2020 which was rejected by the Director on 16 March 2021 (“Director’s Rejection”).

14.  On 29 March 2021, the Applicant lodged an appeal/petition against the Director’s Rejection to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office which was dismissed on 9 September 2021 (“the Board’s Decision”).

15.  On 6 October 2021, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”)  which was dismissed by the Court of First Instance (“CFI”)  on 12 June 2025.

B3.  Steps towards the removal of the Applicant

16.  Prior to the Detention, ImmD sent a letter to the Consulate General of the Republic of Indonesia (“CG”)  on 8 September 2022, informing of the intended repatriation of the Applicant back to Indonesia and requested issuance of a travel document to her as soon as possible.

17.  On 28 February 2025, the Applicant was interviewed by ImmD but demonstrated strong resistance to leaving Hong Kong and refused to complete the travel document application.

18.  By further letter dated 20 March 2025 to CG, ImmD requested issuance of a replacement travel document as soon as possible.

19.  After the commencement of the Detention, ImmD continued to conduct regular interviews with the Applicant (on 28 March 2025, 14 April 2025, 26 May 2025, 26 June 2025, 17 July 2025, 19 August 2025, 17 September 2025, 19 September 2025, 22 September 2025, 14 October 2025 and 27 October 2025)  but she maintained her unwillingness to return and to cooperate with the re-entry seeking formalities.  It was explained to her that her uncooperativeness would eventually lengthen the repatriation progress.

20.  By letters to CG dated 28 April 2025 and 11 June 2025, ImmD sought possible alternative means to issue a travel document to the Applicant regardless of her uncooperativeness.

21.  On 4 July 2025, CG confirmed that an Indonesian Travel Document (“ITD”)  for deportation purpose will be issued to the Applicant.  The ITD was issued on 3 October 2025 with validity until 3 October 2026.

22.  A repatriation flight for the Applicant has been scheduled for 14 November 2025.

B4.  Reviews of Detention

23.  The last review of detention was conducted by the Director on 28 August 2025.  Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  The removal of the Applicant is possible within a reasonable time given the Applicant’s application for judicial review in relation to her NRC was dismissed by the CFI on 12 June 2025;

(2)  Given her previous conviction of breach of condition of stay and refusal to complete the re-entry application formalities, there is a risk of re-offending and/or absconding and she poses a threat or security risk to the community;

(3)  The fact that there is a Hong Kong permanent resident (“HKPR”)  willing to be her guarantor has been taken into account but this does not outweigh the other facts in support of continued detention.

C.  The Applicant’s Submissions

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

(1)  She has been detained for no reason.  She is not detained pending removal but waiting for final determination of her NRC;

(2)  ImmD failed to give her a time for her removal;

(3)  Her NRC is still processing and she has a right to complete all her appeals;

(4)  She has never committed any serious crime or crimes connected to violence in Hong Kong.  She undertakes not to commit any offences or engage in illegal activities;

(5)  She has a HKPR friend willing to stand as her surety/guarantor and has a fixed place of abode where she can reside and be easily located;

(6)  She is willing to comply with any condition as the Director thinks appropriate and will report recognizance on a weekly basis.  She offers cash surety of HK$10,000; and

(7)  The Director has not taken active steps to effect her removal including liaising with CG regarding issuance of a travel document and hence the Director plainly cannot or did not intend to deport her.

25.  At the hearing, the Applicant confirmed the preceding paragraph is an accurate summary of the submissions that she wished to make in support of the Application.  She supplemented that whilst ImmD mentioned that they had applied for a passport for her, she has never applied for a passport.  She also mentioned that someone from the High Court had phoned her HKPR friend to say that she was released. That is obviously not the case but nonetheless she confirmed her friend remains willing to be act as her guarantor.

26.  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

27.  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.

28.  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.

29.  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.

30.  Moreover, the Court of Appeal recently provided guidance in Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582 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.”

31.  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 his removal once the NRC is disposed of. 

E.  Analysis

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

33.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A)  of IO.  There can be no dispute that the RO made against the Applicant is valid and extant. 

34.  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 for Security (“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).

35.  The starting point is that the period of detention to date is 258 days, against which the other factors must be weighed and balanced.

36.  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 purpose.  This is evident from ImmD’s attempts to seek issuance of travel documents from CG before the Detention, continued liaison with CG for the issuance of a travel document despite the Applicant’s lack of cooperation, the interviews with the Applicant before and during the Detention in hope that she would express willingness to return to Indonesia and cooperate with the repatriation arrangements as well as the repatriation arrangements.  Therefore HS1 is satisfied.

37.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the proactivity in seeking issuance of a travel document from CG, the numerous regular interviews with the Applicant to seek her cooperation with the re-entry seeking formalities, and writing to the CFI to seek to accord priority to the JR Leave Application.  HS4 is also satisfied.

38.  With no legal impediment to the Applicant’s removal and a valid travel document secured, if the Applicant cooperates with the repatriation scheduled for 14 November 2025, plainly her removal can be effected within a reasonable period.  Insofar as the Applicant has refused and continues to refuse to cooperate with the removal arrangements, and despite warnings that this would prolong her detention, the prolonged period of detention as a result of her unreasonable conduct should not be regarded as unreasonable or turn an otherwise lawful detention into an unlawful one.  Otherwise, the more unreasonably and uncooperatively she behaves in seeking to frustrate or delay her removal, the more likely she is to be released which the Court of Appeal in Johnson Benjamin held cannot be the intention of the Hardial Singh principles.   Whilst the Applicant says that she may further appeal, any detention prolonged by the Applicant’s delay in pursuing the appeal should not be regarded as unreasonable period of detention.  In any event, even if the Applicant further appeals, this does not constitute a legal impediment to her removal under the prevailing removal policy.

39.  I also accept the Director’s assessment that with her past conviction coupled with the Applicant’s stated unwillingness to return and lack of local ties, bearing in mind she is an overstayer who has previously gone underground for a long period of time, there is a real risk of the Applicant absconding.  If she were 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).

40.  I do not believe that the Applicant’s other submissions can have the effect of outweighing the matters identified in the preceding paragraphs to justify her release.

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

F.  Conclusion

42.  By reasons of the above, I dismiss the Application with no order as to costs.