IMAM HOSSAIN KHAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2631/2025

[2026] HKCFI 277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2631 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 filed by the Applicant on 28 November 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he has been detained since 7 July 2025 (“the Application”).  The period of detention to date is 191 days (“the Detention”).

2.  On 2 December 2025, 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.  A Response/Skeleton Submissions for the Respondents (“the Response”) has been lodged. 

3.  In the Response, it was stated that as the relevant power of detention under the Immigration Ordinance, Cap. 115 (“IO”) in respect of the detention of the Applicant was exercised by the Director of Immigration (“the Director”), the proper respondent to the Application should be the Director only and not the Secretary for Security. 

4.  At today’s hearing, the Applicant has appeared in person with the assistance of an interpreter.  He has also 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.

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

B.      Background

B1.    Immigration status and stay in HK

6.  The Applicant is a Bangladeshi national, born on 2 August 1976.  On 21 July 2006, he arrived in Hong Kong on the strength of a valid passport (valid until 19 November 2010) and was permitted to stay until 28 July 2006.  However, he did not depart and overstayed in Hong Kong since 29 July 2006.

7.  On 22 October 2007, the Applicant was arrested by the Police for being suspected overstaying.

8.  On 24 October 2007, the Applicant was referred to the Immigration Department (“ImmD”).  He was released on recognizance on 6 December 2007.

9.  On 3 September 2010, ImmD decided not to prosecute the Applicant for the suspected overstaying offence.

10.  On 13 February 2012, a removal order (“RO”) under s.19(1)(b) of IO was issued against the Applicant.

11.  On 20 April 2023, the Applicant failed to report recognizance and only resurfaced on 3 May 2023. Recognizance was resumed on 8 June 2023.

12.  On 20 June 2023, the Applicant again failed to report recognizance and only resurfaced on 24 August 2023 and 18 February 2025.

13.  On 7 July 2025, the Applicant was re-arrested by ImmD and detained under s.32(3A) of IO.

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

14.  On 31 October 2007, the Applicant lodged a torture claim which was refused by the Director on 6 February 2014 (“the Director’s Refusal”).

15.  On 21 March 2014, the Applicant’s late appeal to the Torture Claims Appeal Board against the Director’s Refusal was refused.

16.  The Applicant’s NRC on all applicable grounds other than torture risk was rejected by the Director on 15 January 2019 (“the Director’s Decision”).

17.  On 28 January 2019, the Applicant lodged an appeal / petition against the Director’s Decision to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office which was dismissed on 2 January 2020 (“the Board’s Decision”).

18.  On 17 January 2020, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”) which was dismissed on 20 May 2025 (“CFI Decision”).

19.  On 18 December 2025, the Applicant applied for an extension of time to appeal to the Court of Appeal against the CFI Decision.

B3.    Steps towards the removal of the Applicant

20.  Even prior to the Detention, on 19 September 2022, ImmD had sent a letter to the Consulate General of the People’s Republic of Bangladesh (“CG”) to inform of the Director’s intention to repatriate the Applicant and for the issuance of a replacement travel document (“RTD”) as soon as possible.

21.  During an interview with the Applicant on 16 July 2025, the Applicant expressed strong unwillingness to return to his home country.

22.  On 29 July 2025, ImmD sent another letter to CG seeking assistance to issue a RTD to the Applicant as soon as possible.

23.  The Applicant was interviewed on 14 August 2025 and 11 September 2025, but maintained his strong unwillingness to return to his home country and refused to cooperate with re-entry seeking formalities including filling in the application form and taking photos.  He was explained that the detention shall not be unlawful if he prevents or delays his removal.

24.  On 26 September 2025, ImmD sent another letter to CG seeking alternative means to issue the Applicant a travel document regardless of his refusal to cooperate with re-entry seeking formalities.  Further emails to follow up were sent to CG on 6 November 2025 and 7 December 2025.

25.  The Applicant was interviewed on multiple occasions (on  13 October 2025, 12 November 2025, 13 November 2025, 24 November 2025, 25 November 2025, 16 December 2025 and 23 December 2025) but maintained his unwillingness to return and refusal to cooperate with the re-entry seeking formalities.

B4.    Reviews of Detention

26.  The last review of detention was conducted by the Director on 24 December 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 JR Leave Application was dismissed on 20 May 2025.  Despite his application to the Court of Appeal, this does not constitute a legal impediment under the prevailing removal police and the removal of the Applicant is imminent once his re-entry seeking is completed.  With ongoing liaison with CG, removal of the Applicant should be effected within a reasonable period of time;

(2)     The Applicant expressed unwillingness to return and refused to comply with the re-entry seeking formalities.  The Applicant’s uncooperative behaviour has resulted in the delay of his removal;

(3)     The Applicant had failed to report recognizance twice previously, the last abscondence for more than two years, coupled with his expressed unwillingness to return to his home country, there is a real risk he may abscond; and

(4)     The Applicant having a Hong Kong permanent resident fiancée has been taken into account but having considered all the relevant circumstances and balancing all factors, including the time of detention, his release is not warranted.

The Applicant’s Submissions

27.  In the Applicant’s Affirmation, apart from reciting general legal principles and quotations obviously copied from previous similar applications, essentially, insofar as relevant to the facts of his case, the following submissions were made:

(1)     The Detention has continued for a period of time that is in all circumstances unreasonable;

(2)     ImmD cannot clearly identify a time when they can realistically remove him;

(3)     He has a further appeal to the Court of Appeal notwithstanding his JR Leave Application was refused and he is in the process of appealing against the deportation order;

(4)     He does not have a criminal record and does not pose a threat to the community;

(5)     He has a fiancée/wife in Hong Kong who is also his guarantor;

(6)     ImmD failed to take into account his problem in Bangladesh and why he applied for protection in Hong Kong as to why he refused to cooperate.

28.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further mentioned that his fiancée/wife is present in court today. 

29.  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

30.  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.

31.  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.

32.  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.

33.  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.”

34.  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

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

36.  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. 

37.  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 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 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 Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

38.  The starting point is that the period of detention to date is 191 days against which the other factors must be weighed and balanced.

39.  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.  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. I am of the view that both HS1 and HS4 are satisfied.

40.  With no legal impediment to the Applicant’s removal upon the JR Leave Application being dismissed, there is no reason to believe that his removal cannot be effected within a reasonable period if the Applicant cooperates.

41.  Whilst the Applicant submits that he has a further appeal and may take other legal proceedings, again any detention prolonged by the Applicant’s delay in making such claims and not pursing it with reasonable diligence should not be regarded as an unreasonable period of detention.  Besides, under the prevailing removal policy of the Government, the Applicant’s appeal against the dismissal of the JR Leave Application is not an impediment to his removal.

42.  As held by the Court of Appeal in Johnson Benjamin, even if the Applicant takes the view that he has outstanding legal proceedings in relation to his NRC, there is no reason why he should not be expected to cooperate with the relevant authorities to obtain the travel document to facilitate his removal once his NRC is determined.  Insofar as the Applicant has not and does not cooperate with the re-entry seeking 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.

43.  I also accept the Director’s assessment with his previous records of absconding coupled with the Applicant’s stated unwillingness to return, even taking into account his connection in Hong Kong, 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).

44.  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.

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

E.      Conclusion

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