DIL ISLAM HOWLADER v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 464/2026

[2026] HKCFI 2193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 464 OF 2026

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BETWEEN

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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 25 February 2026 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he has been detained since 28 October 2024 (“the Application”). The period of detention to date is 537 days (“the Detention”).

2.  On 3 March 2026, I directed the named respondents 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 1^st and 2^nd Respondents dated 10 April 2026 (“the Response”) has been lodged.

3.  By letter dated 26 March 2026, I was informed by the Respondents that a Notice of an Application for Legal Aid dated 11 March 2026 had been filed. Pursuant to s.15(4) of the Legal Aid Ordinance, Cap. 91 and s.7A of the Legal Aid Regulations, Cap. 91A, unless otherwise ordered by the court, there is an automatic stay of proceedings of 42 days. I lifted the stay by my order of 26 March 2026. The reason for doing so being those similarly given by Coleman J in Ousmane Issa Boubacar v Director of Immigration [2023] HKCFI 2602 at §7:

(1) Applications for a writ of habeas corpus are to be heard as soon as practicable;

(2) But, if a writ of habeas corpus has been issued in respect of a detained person, the person having custody of the detained person must not, until the writ has been discharged or the proceedings are concluded, allow the detained person to be removed from Hong Kong: see s.22A(11) of the High Court Ordinance, Cap. 4;

(3) Hence, the practical effect of the making of an application for writ of habeas corpus is to create a legal impediment to removal of the detained person from Hong Kong;

(4) There is an inherent inconsistency between: (1) making an application which seeks immediate release from detention, and which should be heard as soon as possible; and (2) making another application which by its nature would prevent or delay release from detention, whether it is (a) an application for an adjournment, perhaps to see legal advice, or (b) an application for legal aid which has the effect of triggering an automatic stay of 42 days;

(5) There is also an inconsistency or tension between an application for an adjournment, which seeks immediate release and a collateral application which frustrates an imminent release in fact already arranged;

(6) In this particular case (see below), the Applicant is scheduled to be released from detention in 6 days’ time upon his repatriation;

(7) Hence, if the Applicant is correct, and his detention has become and/or will become unlawful, his own action in applying for legal aid - thereby triggering the automatic stay – might cause him real unfairness and prejudice;

(8) The counter risk of prejudice is in depriving the Applicant of the potential opportunity to seek and obtain legal representation is significantly less likely to give rise to any real prejudice;

(9) This is because of the approach to habeas corpus applications, where the central question to be determined is whether there is, and continues to be, lawful authority for the detention, where an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances;

(10) It is not incumbent on the applicant to demonstrate unlawfulness;

(11) The burden of showing that detention is lawful lies upon the respondent, but the Court is the primary decision maker as to the reasonableness of the detainee’s continued detention;

(12) Either continuing detention is reasonable and so lawful, or it is not;

(13) Further, on a habeas corpus application, the Court is not dealing with a non-refoulement claim (“NRC”), and is not deciding whether the applicant should or should not be removed from Hong Kong;

(14) Instead, the Court is deciding whether the applicant – typically subject to a removal order and/or a deportation order – has been lawfully detained, and can continue to be lawfully detained, pending his removal or deportation from Hong Kong.

4.  At today’s hearing, the Applicant has appeared in person with the assistance of an interpreter. He has confirmed that he has been served the Response and a bundle of documents prepared by the Department of Justice acting on behalf of the Respondents. Whilst the Applicant requested for an adjournment of today’s hearing, I did not accede to the request for the reasons in the preceding paragraph.

5.  This is my Decision having heard the oral submissions of the Applicant and Mr Au, Government Counsel, appearing for the Respondents.

B. Background

B1. Immigration status and stay in HK

6.  On 11 February 2007, the Applicant, with a Bangladeshi passport in the identity of Safikul Sheikh born on 10 April 1980, was arrested by the Police for suspected overstaying and was referred to Immigration Department (“ImmD”).

7.  Upon examination of the passport possessed by the Applicant with a photograph which did not resemble the Applicant, he claimed under caution that his true identity was Dil Islam born in 1981 in Bangladesh and that the photograph and personal particulars on the passport did not relate to him. He further admitted to having entered Hong Kong illegally from the Mainland by boat on 4 February 2007.

8.  On 31 March 2007, ImmD decided not to prosecute the Applicant for the suspected illegal remaining offence.

9.  On 4 April 2007, a removal order (“RO”) under s.19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”) was issued against the Applicant.

10.  On 24 September 2021, whist on recognizance, the Applicant was arrested for gambling in a gambling establishment. He was released unconditionally on 24 February 2022.

11.  The Applicant failed to report recognizance since 20 January 2023 and re-surfaced on 30 January 2023 claiming that he forgot to report recognizance.

12.  On 24 February 2023, recognizance was resumed.

13.  On 28 October 2024, recognizance was ceased and the Applicant was detained.

B2. The Applicant’s NRC (“NRC”) and related legal proceedings

14.  On 2 March 2009, the Applicant lodged the NRC which was refused by the Director of Immigration (“the Director”) on 5 December 2014 (“the Director’s Refusal”).

15.  On 17 December 2014, the Applicant filed a Notice of Appeal/Petition against the Director’s Refusal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) but this was refused on 5 October 2015 (“the Board’s Decision”).

16.  On 26 January 2017, the Director refused the NRC under Article 2 of the Hong Kong Bill of Rights (“Director’s Further Decision”).

17.  On 25 June 2018, the Applicant filed an application for extension of time for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”) which was refused on 16 April 2019 (“CFI Decision”).

18.  On 24 April 2019, the Applicant filed an application for extension of time to appeal against the CFI Decision which was refused on 24 May 2019.

19.  On 27 May 2019, the Applicant renewed his application for leave to appeal in the Court of Appeal which was dismissed on 23 April 2020. His appeal against the Court of Appeal’s decision was dismissed by the Appeal Committee of the Court of Final Appeal on 26 July 2021.

20.  On 2 August 2021, the Applicant made a request to make a subsequent claim which was withdrawn by the Applicant on 28 October 2021.

21.  On 18 December 2024, the Applicant filed an application for writ of habeas corpus which was withdrawn with leave of court on 11 February 2025.

22.  On 14 November 2025, the Applicant made a second request for making a subsequent claim but the same was withdrawn by the Applicant on 12 January 2026.

23.  On 2 February 2026, the Applicant appealed against the Director’s Further Decision (made 9 years prior). A letter was sent to the Board by ImmD seeking expedition on the Applicant’s appeal. The appeal was dismissed by the Board on 23 February 2026 (“the Board’s Further Decision”).

24.  On 14 April 2026, the Applicant filed an application for leave to apply for judicial review against the Board’s Further Decision.

B3. Steps towards the removal of the Applicant

25.  Even prior to the Detention, as early as 12 December 2014, the Director initiated re-entry seeking by writing to the Consulate General of the People’s Republic of Bangladesh (“CG”). Subsequently, the Applicant’s identity was verified. Prior to the Detention, a travel permit was issued to the Applicant on 5 June 2018 and a repatriation flight was scheduled on 4 July 2018 but did not proceed due to the filing of the JR Leave Application.

26.  After the commencement of the Detention, on 20 November 2024, a letter was sent to CG seeking re-entry and a travel permit issued on 13 December 2024 with validity of three months. There was then further liaison with CG for re-issuance of travel permits (the last travel permit was issued on 29 January 2026 valid for 3 months).

27.  During the Detention, the Applicant was interviewed and initially expressed his willingness to return to Bangladesh (on 28 October 2024, 28 November 2024, 12 December 2024 and 21 January 2025). On 24 February 2025, he changed his mind and expressed unwillingness to leave Hong Kong. Thereafter, there were occasions when he expressed his willingness to return (25 February 2025, 26 March 2025, 10 June 2025, 25 July 2025 and 9 January 2026) but on other occasions he expressed his unwillingness to return (19 June 2025, 29 August 2025, 8 October 2025, 5 November 2025, 12 November 2025, 25 November 2025, 11 December 2025, 12 December 2025, 19 December 2025, 29 December 2025, 2 February 2026 and 4 March 2026).

28.  Repatriation flights were scheduled (for 28 January 2025, 24 February 2025, 24 June 2025 and 10 March 2026) but ultimately due to the Applicant’s lack of cooperation were suspended. The next repatriation flight is scheduled for 23 April 2026.

B4. Reviews of Detention

29.  The last review of detention was conducted by the Director on 11 February 2026. Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1) The Applicant’s removal is going to be possible within a reasonable time given the JR Leave Application was refused by the Court of First Instance on 16 April 2019 and there is no legal impediment to his removal;

(2) After verification, travel permits were issued by CG and flights were scheduled for his removal but were called off as the Applicant refused to cooperate with the removal operations. The Applicant’s uncooperative behaviour has directly or indirectly prevented or delayed his removal;

(3) Given his expressed unwillingness to return to his home country, coupled with the lack of local connection in Hong Kong, there is a real risk he may abscond if released from detention; and

(4) Having considered all the relevant circumstances and balancing all factors, including his health condition and length of detention, release is not warranted.

The Applicant’s Submissions

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

(1) The purpose of detention should not be to protect the public and that he was not being detained pending removal but awaiting final determination of his NRC;

(2) The Detention has continued for a period of time that is unreasonable;

(3) The Respondents cannot say when or how they will effect his removal within a reasonable time;

(4) The Respondents failed to take into account relevant considerations;

(5) He has been detained without any notice and reason;

(6) The Director did not take active steps to effect his removal including liaison with CG regarding the issuance of travel documents;

(7) He has never disobeyed the rules and regulations of ImmD and from 2006 never missed reporting to ImmD;

(8) He has an ongoing judicial review which constitutes a legal impediment to his removal and the assertion that his removal is possible within a reasonable time frame is unfounded;

(9) He has never committed any offence connected with violence and can give an undertaking not to commit any offence or engage in illegal activities;

(10) He has friends in Hong Kong willing to support him and he can provide a guarantor;

(11) He is willing to offer self-surety of HK$4,000 and undertake to report recognizance and comply with any conditions as the Director thinks appropriate;

(12) There is danger to his life if he is returned as he still believes he is the target of his enemies;

(13) Every single day he goes through the emotional and psychological trauma of being unlawfully detained and being detained with other detainees with criminal records is affecting his physical and mental health; and

(14) He is suffering from hypertension and has head and chest pains due to the Detention. Even though he had been admitted to the hospital and received treatments whilst being detained, he believes that he will become healthy again if he is released.

31.  By letter received by this court on 30 March 2026, the Applicant further challenged the Director’s latest review of detention. Essentially, it was submitted:

(1) Until 23 March 2026, there was no decision from the Board and even if they decide to reject his claim, he has the right to judicial review the decision which means it is impossible for him to be removed;

(2) He previously failed to report recognizance on one occasion because due to typhoon and even though he went to report recognizance he was informed that they could not process the reporting. He was told that an officer would call him but he did not receive any call but he did report the next week;

(3) He did not cooperate with the removal arrangements because of his outstanding legal claims;

(4) He provided the name and contact number of his close friend who is willing to act as his guarantor and can provide him with a fixed abode if he is released on recognizance; and

(5) His change of mind to return was due to change of the situation of his home country and because of his outstanding claims.

32.  At the hearing, the Applicant confirmed the preceding paragraphs represent an accurate summary of his submissions. He further submitted a letter to me and additional documents essentially, to request an adjournment to today’s hearing because he wished to await the decision from the Legal Aid Department in respect of his legal aid application. He also informed me of the outstanding application for leave to apply for judicial review against the Board’s Further Decision. He urged that “bail on recognizance” be granted so that he can properly prepare his judicial review with proper legal assistance and advice.

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

C. Applicable Principles

34.  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.

35.  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.

36.  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.

37.  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.”

38.  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.

D. Analysis

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

40.  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.

41.  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 (“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).

42.  The starting point is that the period of detention to date is 537 days, which no doubt is a long period of time, against which the other factors must be weighed and balanced.

43.  I accept that the Applicant has been detained for the purpose of removal, and that the power of detention is being used only for that purpose. Contrary to the Applicant’s assertion, the reasons for his detention has been made known to him under the Notice of Detention given to him and the Notices of Review of Detention which were interpreted to him. I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal. This is evident from the proactive efforts and continued liaison with CG to secure a travel document for his return and the numerous and frequent interviews to ascertain Applicant’s willingness to return to his home country and the repatriation arrangements. I am of the view that both HS1 and HS4 are satisfied.

44.  The current and recent legal impediment to the Applicant’s removal was only due to his seriously late lodging of an appeal against the Director’s Further Decision (9 years after the event) and the application for leave to apply for judicial review against the Board’s Further Decision. The prolonged period of detention as a result of his belated taking of legal proceedings to frustrate his removal which plainly is 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. Had he pursued the NRC and related legal proceedings together with the application for legal aid promptly, I have no doubt that they would have been determined long before the commencement of the Detention. If his latest application for leave to apply for judicial review is accorded priority, I have no reason to doubt that it would be determined within a reasonable period of time. Besides, there will be reviews of detention triggered by any relevant change of circumstances and the continuing length of the detention. If the application for leave to apply for judicial review is dismissed, there being no legal impediment and if the Applicant cooperates, there is no reason to believe that he cannot be removed within a reasonable period of time.

45.  I also accept the Director’s submissions given the Applicant’s stated unwillingness to return, constant changing of his mind whether he was willing to return which frustrated all previous scheduled repatriations, coupled with his lack of connection to Hong Kong that there is a real risk of the Applicant absconding. If he 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).

46.  In relation to the Applicant’s claimed physical and mental conditions, in view of previous decided cases, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required. There is no evidence to suggest that the Applicant is medically unfit for continued detention: see Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government (Unrep) HCAL 2428/2018, 6 November 2018, per Chow J (as he then was) at §27 and Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 at §30 per Coleman J.

47.  In relation to the Applicant’s submissions that he should be released in order to properly prepare his application for judicial review, as held by Coleman J in Arif v Director of Immigration & Anor [2023] HKCFI 2518 at §33, no significant weight should be attached because such application is concerned with examining the integrity of the decision-making process of the Board and seeing if the Applicant identified with the benefit of the scrutiny of the Court any reasonably arguable public law error on the Board in reaching its decision. It is not a re-hearing of the NRC dealt with by the Board. His detention would not prevent him from submitting any necessary documents when all the relevant documents would have been filed and should have been provided to the Board.

48.  Although the Applicant says that his life is in danger in Bangladesh, as has been stated and repeated in many previous decisions, an application for habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his application for habeas corpus will not look at the merits of such claim.

49.  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 his release.

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

E. Conclusion

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