KAMMALAGE ANURA FERNANDO v. DIRECTOR OF IMMIGRATION

HCAL 2374/2025

[2026] HKCFI 918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2374 OF 2025

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 12 October 1998 and 26 July 2004.  He has been held in immigration detention since 9 September 2025 pursuant to section 32(3)  of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, he has been detained for 156 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus made on 23 October 2025.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Mr Thomas Tong, Government Counsel, appeared for the Director of Immigration (“Director”)  and the Secretary for Security (“Secretary”).

2.  Background

2.1  The Applicant is a Sri Lankan national.  He is a returned deportee having been removed from Hong Kong twice in the past.  According to the records of the Immigration Department, he had previously used two other different identities (respectively “ID1” and “ID2”)  to enter Hong Kong.

2.2  On 10 February 1998, the Applicant entered Hong Kong under ID1 and was permitted to remain as a visitor until 13 February 1998.  On 28 September 1998, he was arrested by the police for having overstayed in Hong Kong.  He was subsequently convicted for breach of condition of stay and was sentenced to two months’ imprisonment (suspended for 12 months).  He was removed from Hong Kong on 20 October 1998 pursuant to the Removal Order.

2.3  The Applicant entered Hong Kong again on 6 June 1999 under ID2 and was permitted to remain as a visitor until 11 June 1999.  On 31 May 2003, he was arrested by the police and was subsequently convicted of using an identity card relating to another person and breach of condition of stay and was sentenced to a total of 15 months’ imprisonment.  Subsequently, on 22 September 2003, he was convicted of a number of other immigration-related offences.  Upon his discharge from prison, he was removed from Hong Kong on 3 August 2004 pursuant to the Deportation Order.

2.4  The Applicant then entered Hong Kong again under ID3.  On 19 May 2007, the Applicant was intercepted by the police and claimed that he had landed in Hong Kong on 27 February 2005 and was permitted to remain as a visitor for three days.  He was then convicted of a number of immigration-related offences and sentenced to imprisonment on 23 May 2007. Additionally, he was also convicted of the offence of theft and sentenced to 2 month’s imprisonment on 12 September 2007.  

2.5  The Applicant failed to report police bail in February 2007 and until he was arrested by the police on 19 May 2007.

2.6  On 8 December 2007, the Applicant was discharged from prison and he was subsequently released on recognizance on 30 July 2008.

2.7  In May 2008, the Immigration Department began to liaise with the Consulate of the Democratic Socialist Republic of Sri Lanka in Hong Kong for assistance to issue to the Applicant a travel document for his return to Sri Lanka.  On 6 June 2008, the Immigration Department was told that there was in-principle approval from the Embassy in Beijing (“Embassy”)  for a travel document to be issued.

2.8  The issuance of a travel document was held in abeyance in the meantime as the Applicant’s non-refoulement claim was ongoing. 

2.9  The Applicant has no fixed abode or family connections in Hong Kong.

3.  Non-refoulement and (“NRC”)  and related proceedings

3.1  The Applicant’s NRC on the grounds of BOR2, BOR 3 and persecution risks was rejected by the Director on 25 October 2018.  His subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 14 October 2019 (“TCAB Decision”).

3.2  On 21 August 2025, DHCJ KW Lung dismissed the Applicant’s application for leave to apply for judicial review against the TCAB Decision by way of HCAL 3192/2019 (“JR Leave Application”).

3.3  Following the dismissal of the JR Leave Application, the Applicant’s recognizance was ceased on 9 September 2025.

4.  The present detention and its reviews

4.1  Immediately after the commencement of the present detention, the Immigration Department on 12 September 2025 recommenced its effort in respect of the issuance of a travel document to the Applicant.  Although in-principle approval had previously been obtained, as advised by the Embassy, the Applicant was required to complete the reentry formalities, upon which a travel document could be issued within one month’s time.

4.2  At all interviews conducted during the present detention (multiple times in any given month except only once in January 2026), the Applicant has steadfastly expressed his unwillingness to return to his home country and refusal to cooperate in completing the reentry formalities.

4.3  In the latest review of the present detention conducted endorsed on 31 December 2025, the Applicant’s released was considered to by unjustified by reason of the following broad grounds:

(1)  The Applicant’s removal was going to be possible within a reasonable time;

(2)  The Applicant posed or was likely to pose a threat or security risk to the community;

(3)  The Applicant might abscond;

(4)  The Applicant might (re)offend, as the gravity of the previous offence convicted was on the high side;

(5)  The Applicant did not have close connection or fixed abode in Hong Kong;

(6)  There were no other circumstances in favour of the Applicant’s release.

5.  The Applicant’s submissions

5.1  The grounds set out in the Applicant’s written materials may be summarized as follows:

(1)  He has lived in Hong Kong for 30 years and he has to arrange his documents and his properties and he asks to be released for a few months;

(2)  He failed to attend the hearing before DHCJ KW Lung in the JR Leave Application as he had changed address and therefore did not receive any letters from the Court of First Instance;

(3)  He cannot at the moment return to his home country as he has a lot of problems;

(4)  Since 2007, he has been on good behaviour and has always complied with his recognizance conditions.

5.2  At the hearing, I clarified with the Applicant the nature of the alleged problem.  I was told that he a friend with whom he had fallen out had maliciously passed the papers relating to his NRC to the Sri Lankan government.  He fears that the Sri Lankan government, upon discovering the allegations made in his NRC, may cause him difficulties.  In his NRC, he had alleged that he fled his home country because of altercations with gangsters connected to various Ministers of United People’s Freedom Alliance, a political party of Sri Lanka.  However, he told me that it was just his suspicion, but he would like to contact his family and friends to clear up the matter before returning to his home country.  He said that he has lost contact with his family members and friends and need time to reconnect with them. 

5.3  He further supplemented that at the time when his recognizance was ceased on 9 September 2025, he was told by the immigration officer that the hearing of the JR Leave Application was to take place in October and he only later found out that the JR Leave Application had already been dismissed in August 2025.

6.  The applicable principles

6.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99.  I have in particular borne in mind the summary set out at §164 thereof.

6.2  I 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.

6.3  Under Section 32(4A)  of the Ordinance, 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, (2)  whether the person poses, or is likely to pose, a threat or security risk to the community, (3) 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 and (4)  factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

6.4  The Court of Appeal has provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee's own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention.  It is stated at ¬ß29(3):

"In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee's own unreasonable behaviours or conducts 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 and 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."

6.5  In particular, on the issue of a detainee’s refusal to cooperate in completing reentry formalities, Johnson Benjamin §37 observed as follows:

“… In our view, even if there is an ongoing non-refoulement claim, 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 non-refoulement claim is disposed of…”

7.  Analysis

7.1  During the present detention, the Applicant is and has been detained pursuant to section 32(3)  of the Ordinance.  It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention, namely 156 days, against which the various other factors must be weighed and balanced. 

7.3  As regards the Applicant's fear for his own safety if repatriated, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.  In the present case, the reasons given by the Applicant (set out at §5.2 above)  are even further removed, in that they are only suspicions on his part.

7.4  I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove the Applicant and that has been the only purpose of the Applicant's detention.  HS1 is satisfied.  I also accept that the Director/Secretary have acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.

7.5  Given the nature of the Applicant’s previous convictions, I am prepared to proceed on the basis that the Applicant does not present a threat or security risk to the community.  As canvassed above, except for one theft offence committed back in 2007, the other convictions were in respect of immigration-related offences such as the use of a forged travel document or making a false representation to an immigration officer.  I also accord weight to the fact that the Applicant has remained on good behaviour since 2007 and I consider his application in the light that the risk of (re)offending is on the low side.

7.6  I am however persuaded that there is a real absconding risk in the light of: (1)  the Applicant’s obdurate actions to stay in Hong Kong given the history of previous removals from and reentries (by unlawful means)  back in Hong Kong, (2)  his unwillingness to return to his home country, (3)  the imminence of his removal and (4)  lack of local connections.  I have formed the foregoing view even in the light of the Applicant’s “light” absconding record.

7.7  Perhaps even more significantly, as at the commencement of the present detention following the dismissal of the JR Leave Application, there was no legal impediment to the Applicant’s removal by reason of the Updated Removal Policy.  The only impediment was, and remains, a practical one, namely the need for a travel document to be issued to the Applicant and that process has been frustrated only by reason of the Applicant’s refusal to cooperate to complete the reentry formalities.  Had he cooperated, the Applicant would have been released from detention (albeit in the form of removal from Hong Kong).  Viewed thus, the length of the present detention is entirely self-induced and has been unnecessarily prolonged.

7.8  As regards the JR Leave Application, I do not accept the Applicant’s allegation set out ay §5.3 above.  The chronology shows that recognizance ceased shortly after the dismissal of the JR Leave Application.  It seems to me that the present detention was commenced only because there was no longer any legal impediment and the likelihood is that the immigration officer would not misrepresent the status of the JR Leave Application as alleged (and there was plainly no reason to do so).

7.9  Overall weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.  Conclusion

8.1  By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention has been and will remain lawful.

8.2  I therefore dismiss the present application with no order as to costs.