TAMANG JYOTI v. DIRECTOR OF IMMIGRATION

HCAL 914/2020

[2026] HKCFI 1865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 914 OF 2020

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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 27 January 2026 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he is currently detained (“the Application”).  He has been detained since 22 September 2025 making the period of detention to date 187 days (“the Detention”).

2.  On 29 January 2026, I directed the named respondent to the Application inter alia to lodge and serve a response to the Application and the Affidavit of Wong Choi Ha (“Wong”), the Applicant’s wife, filed in support of the Application.  An Initial Response for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”) dated 20 March (“the Response”) has been lodged.

3.  This is my Decision having heard the oral submissions of Mr Fournier, counsel, appearing for the Applicant and Miss Liu, Government Counsel, appearing for the Respondent.

B.     Background

B.1    Immigration status and stay in HK

4.  The Applicant is a Nepali national born in 1985.

5.  On 25 April 2016, the Applicant surrendered to the Immigration Department (“ImmD”) for illegal remaining.  Upon enquiry, the Applicant claimed that he had entered Hong Kong illegally via the Mainland on 21 April 2016.  The Applicant was released on recognizance on 28 April 2016.

6.  On 29 November 2017, the Applicant was convicted of the offence of “taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully” and was sentenced to 15 months’ imprisonment.

7.  On 8 October 2018, a removal order (“RO”) was issued against the Applicant under s.19(1)(b) of Immigration Ordinance, Cap.115 (“IO”).

8.  On 22 February 2022, the Applicant solemnised his marriage with Wong, a Hong Kong permanent resident (“HKPR”)

9.  On 31 March 2022, the Applicant submitted his first application for entry for residence to join Wong as a dependant in Hong Kong but this was refused by ImmD on 13 February 2023.

10.  On 19 July 2023, the Applicant submitted a second application for entry for residence to join Wong as a dependant in Hong Kong but this was refused by ImmD on 8 May 2025.

11.  On 24 October 2025, a deportation order (“DO”) was issued against the Applicant under s.20(1)(a) of IO.

B.2    The Applicant’s Non-refoulement Claim (“NRC”) and related legal proceedings

12.  On 28 April 2016, the Applicant lodged a NRC which was rejected by the Director on 16 May 2018 (“the Director’s Decision”).

13.  On 28 June 2018, the Applicant filed an appeal/petition against the Director’s Decision but this was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 31 January 2019 (“the Board’s Decision”).

14.  On 15 May 2020, the Applicant filed, out of time, 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 on 29 July 2025 (“CFI Decision”).

15.  On 12 August 2025, the Applicant filed a Notice of Appeal to the Court of Appeal against the CFI Decision, the hearing of which has been adjourned to 16 June 2026.

B.3    Steps towards the removal of the Applicant

16.  Even prior to the Detention, on 14 August 2024, ImmD had written to the Consulate General of the Federal Democratic Republic of Nepal in Hong Kong (“CG”) to inform of the intended deportation of the Applicant and request for the issuance of a travel document for his return to Nepal and to confirm his re-entry.

17.  On 3 September 2024, CG verified the Applicant’s identity.

18.  On 10 September 2024, ImmD secured the necessary documents from the Applicant for applying for a replacement travel document (“RTD”).

19.  After the commencement of the Detention, the Applicant was interviewed but he expressed his unwillingness to return to Nepal and maintained his unwillingness to return in all subsequent interviews (on 29 September 2025, 14 October 2025, 7 January 2026, 20 January 2026, 23 February 2026, 25 February 2026 and 5 March 2026).  He was reminded that his uncooperative attitude would impede his removal.

20.  On 28 November 2025, ImmD wrote to CG to request assistance to issue a RTD as soon as possible.

21.  On 3 December 2025, CG issued a one-way travel document (“TD”) to the Applicant with validity until 2 March 2026.

22.  On 22 January 2026, a repatriation flight was scheduled for 25 February 2026 but given the Applicant’s refusal to cooperate and the Application (taken out after he had been informed of the schedule repatriation) has not been heard, it was decided that the repatriation will be rescheduled. 

23.  On 12 March 2026, ImmD wrote to CG to seek re-issuance of a TD but CG confirmed that a completed TD application from duly signed by the Applicant with his recent photo was required and generally speaking, a TD could be issued around 2 weeks after fulfilling the re-entry formalities.

B.4    Reviews of Detention

24.  The last reviews of detention were conducted by the Secretary on 10 March 2026 and by the Director 17 March 2026.  Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)     Given the CFI Decision, there is no outstanding legal impediment to the Applicant’s removal and a renewed TD can be issued within 2 weeks if the Applicant completes the required formalities such that there is no sufficient reason to believe that he cannot be removed within a reasonable period of time;

(2)     The Applicant has been convicted for an offence of a serious nature and it is considered that he poses a threat or security risk to the community;

(3)     Given he committed the offence whilst released on recognizance, coupled with his unwillingness to return and refusal to cooperate with the re-entry formalities, there is a real risk of re-offending and absconding; and

(4)     The length of detention, Wong’s medical condition and local connections to Hong Kong have been taken into account but do not outweigh the other factors in favour of detention.

C.     The Submissions made on behalf of the Applicant

25.  In Wong’s Affidavit, the following submissions were made:

(1)     The Applicant’s conviction was served many years ago and he is not a danger to anyone;

(2)     There is no risk of his absconding because of his connection and ties;

(3)     He has existing proceedings before the Court of Appeal and his lawyers, who were instructed recently, need the Applicant’s input which is difficult when he is detained;

(4)     The Detention is unreasonable; and

(5)     The Applicant’s detention has caused her immense distress and due to her medical conditions, she relies on the Applicant for support in daily life.  The stress and uncertainty has worsen her health and psychiatric conditions.

26.  In Mr Fournier’s Skeleton Submissions and oral submissions, essentially, it was submitted that:

(1)     There is no risk of absconding and re-offending: (a) the only one conviction was from 2017 and he committed no crime and there was compliance with recognizance conditions since then so the risk of re-offending is speculative; (b) he has a stable home and strong family ties with Wong, a HKPR, who requires his daily care and this is relevant to assessing his risk of absconding; (c) his refusal to cooperate is not evidence of risk of absconding when he has not disappeared and his refusal to board a removal flight is because of his ongoing appeal;

(2)     Removal is not realistically possible within a reasonable period of time and the Applicant cannot be lawfully removed while the appeal is pending the Court of Appeal which he has a right to prosecute. Removal is not imminent when the TD has expired and a new TD has not been obtained, the Applicant cannot be removed until the appeal concludes and ImmD cannot specify any removal date;

(3)     The Detention has exceeded a reasonable period of time (over 6 months);

(4)     The Director has not acted with reasonable diligence;

(5)     There is no evidence of meaningful assessment but a “tick-box approach” by the Director on the length of detention, its impact on the Applicant’s family, the Applicant’s strong compliance record and legal necessity of his participation in the appeal;

(6)     The Detention is unreasonable when counsel requires direct access to the Applicant but has to incur time and expenses to visit the Applicant, and the Applicant must meaningfully participate in the appeal proceedings; and

(7)     Wong suffers serious psychiatric harm due to the Detention which is a factor to be considered but the reviews of detention by the Director has failed to afford weight to this factor.

27.  I will take into account all these submissions made on behalf of the Applicant and give them such weight in the balancing exercise as seems to me to be appropriate.

D.     Applicable Principles

28.  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.

29.  I also 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.

30.  Under s.32(4A) of IO, the detention of a person under s.32 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.

31.  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.”

32.  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

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

34.  There is clear prima facie authority for the detention of the Applicant throughout the Detention pursuant to: (a) s.32(3A) of IO (from 22 September to 9 October 2025); (b) s.29(1) of IO (from 10 October to 23 October 2025) and (3) s.32(3) of IO (from 24 October 2025 to present).  There can be no dispute that the RO and DO made against the Applicant are valid and extant.

35.  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).

36.  The starting point is that the period of detention to date is 187 days, against which the other factors must be weighed and balanced.

37.  I accept that the Applicant has been detained for the purpose of his removal from Hong Kong and that the power of detention is being used only for that purpose.  This is evident from the Director’s proactive efforts to seek issuance of a travel document from CG long before the Detention and the continued liaison with CG during the Detention, the frequent interviews with the Applicant in hope that he would express willingness to return to Nepal and the repatriation arrangements.  Therefore HS1 is satisfied.

38.  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 assistance from CG, the continued liaison with CG and the frequent interviews with the Applicant to seek his co-operation.  HS4 is also satisfied.

39.  With the refusal of his JR Leave Application, contrary to Mr Fournier’s submissions, even with the outstanding appeal to the Court of Appeal there is no legal impediment to the Applicant’s removal under the Government’s prevailing removal policy.  If the Applicant cooperates, a travel document can be issued in around two weeks upon completion of all formalities. The only reason it has not been obtained is the refusal by the Applicant to cooperate with submitting an application form and photos.  The Director is not necessarily required to specifically pinpoint a date or range of dates for removal but there is a sense at a broad level what sort of timescale is being canvassed (see Hardial Singh, §148).  Ms Liu submitted that if the Applicant is not released today, a repatriation flight can be rescheduled and with a TD issued within 2 weeks, the Applicant can be removed within one month if he cooperates.  As held in Johnson Benjamin, even if there is an 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.  I do not accept Mr Fournier’s submissions that the Applicant’s non-cooperation because of his outstanding appeal is justified and not unreasonable.  Plainly, the Applicant’s detention is clearly necessitated and prolonged by the Applicant’s unreasonable refusal to cooperate with the re-entry formalities.  The prolonged period of detention as a result of his unreasonable conduct should not be regarded as unreasonable or turn an otherwise lawful detention into an unlawful one.  Otherwise, the more unreasonably and uncooperatively he behaves in seeking to frustrate or delay his removal, the more likely he is to be released which the Court of Appeal in Johnson Benjamin held cannot be the intention of the Hardial Singh principles.

40.  I also accept the Director’s and Secretary’s assessments (which from the evidence before me I disagree were merely a “tick-box” assessment) that with the Applicant’s past conviction (the seriousness of the offences committed is reflected by the sentences imposed and the making of the DO) committed whilst on recognizance, coupled with his expressed unwillingness to return to Nepal and uncooperative attitude, even bearing in mind his local connections, there is a real risk of the Applicant re-offending and/or absconding. If he were to abscond or re-offend, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO and DO.  The risks of absconding and re-offending are of critical and paramount importance in the assessment of the lawfulness of the detention.  See Harjang Singh at §164(14).

41.  I acknowledge the Applicant’s family circumstances and that there will be some adverse effect on the Applicant’s wife from the Detention.  Contrary to Mr Fournier’s submissions, this was taken into account by the Director and the Secretary but they took the view that this factor did not outweigh other factors in favour of detention.  The stark reality is that when the Applicant and Wong got married, a RO had already been issued and the Applicant was liable to be removed from Hong Kong.  A valid and extant DO has also been issued against the Applicant.  In these circumstances, I am of the view that the Applicant’s family circumstances is of little significance when weighed against the other factors overall (see ibid, §156).

42.  As for the need for the Applicant to be released to give instructions to counsel and “meaningfully” participate in the appeal, this is self-evidently refuted by the fact that he has been able to instruct Mr Fournier to make submissions on his behalf today.  I simply cannot see how his physical presence is required before the Court of Appeal in June 2026.  The need to be released for the purposes of judicial review proceedings, which does not amount to a rehearing of the NRC and is only concerned with examining the integrity of the decision-making process of the Board, was rejected by Coleman J in Arif v Director of Immigration & Anor [2023] HKCFI 2518 at §33. That must be apposite, even more so, in the present case where the Applicant is legally represented.

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

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

F.     Conclusion

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