Rubel Sheikh v. Hong Kong Sar Government

HCAL 701/2025

[2025] HKCFI 1725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 701 OF 2025

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BETWEEN

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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 18 March 2025 seeking his release from Castle Peak Bay Immigration Centre (“CIC”)  where he is presently being detained (“the Application”).  He has been detained since 21 January 2025 making the period of detention to date 94 days (“the Detention”).

2.On 20 March 2025, I directed the Respondent to lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.  An Initial Response for the Respondent dated 17 April 2025 (“the Response”)  was lodged.  In the Response, it is stated that the Hong Kong SAR Government is named as the Respondent to the Application but as the Applicant is being detained under s.32(3A)  of the Immigration Ordinance, Cap. 115 (“IO”)  authorised by the Director of Immigration (“the Director”), the Deputy Director of Immigration or any assistant director of immigration, and it is the Director who also decides whether the Applicant should be released on recognizance under s.36(1)  of IO, the Response is filed on behalf of the Director.  I accept that the Director is the proper Respondent and should be treated as the Respondent to the Application.

3.At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.   He confirmed that he has been served the Response and the bundles of documents.  The Director was represented by Ms Cheung, Senior Government Counsel.

4.This is my Decision having heard the oral submissions of the Applicant and Ms Cheung.

B.  Background

B1.  The Applicant’s immigration status and stay in HK

5.The Applicant is a Bangladeshi national born on 21 April 1988.

6.He entered Hong Kong illegally and was arrested by the police for being a suspected illegal immigrant on 21 April 2014.  He claimed to have entered Hong Kong illegally on 21 April 2014 by swimming and has remained in Hong Kong since then.

7.The Applicant was released on recognizance from 20 May 2014 to 20 January 2025.

8.On 17 May 2019, whilst on recognizance, the Applicant was arrested by the police for gambling in a gambling establishment and was subsequently fined HK$500.

9.On 27 September 2019, a removal order (“RO”)  was made against the Applicant.

10.The Applicant’s recognizance was ceased on 21 January 2025 upon review and was detained under s.32(3A)  of IO pending his removal from Hong Kong.

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

11.The Applicant first expressed his intention to lodge an NRC on 24 April 2014.

12.On 26 February 2016, the Director refused the Applicant’s NRC on grounds of torture, BOR3 and persecution risks. By a Notice of Further Decision dated 10 February 2017, the Applicant’s NRC on ground of BOR2 was rejected by the Director.

13.On 26 July 2019, the Applicant’s appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

14.On 29 July 2019, the Applicant applied for leave to apply for judicial review against the Director’s and the Board’s decisions (“the JR Leave Application”).  On 3 January 2025, the JR Leave Application was refused by the Court of First Instance.

B3.  Steps towards the removal of the Applicant

15.In view of there being no legal impediment to the Applicant’s removal[1], on 21 January 2025, upon conducting a review of detention, the Director decided to cease the Applicant’s recognizance and he was transferred to CIC for detention under s.32(3A)  of IO.

16.When interviewed on 21 January 2025, the Applicant expressed his unwillingness to return to Bangladesh and refused to complete the issuance of replacement travel document (“TD”)  application nor to attend the interview with the Consulate General of the People’s Republic of Bangladesh (“CG”).

17.A letter was sent by the Director to CG on 3 February 2025, which referred to the Director’s previous letter dated 26 October 2022, to seek the issuance of a replacement TD as soon as possible.

18.It was not until 24 February 2025 that the Applicant changed his mind and expressed willingness to return to Bangladesh.  For the purpose of seeking re-entry, arrangements were then made for the Applicant to fill in the application form, take photo and sign a consent letter.

19.On 4 March 2025, the Director wrote to the CG informing that the Applicant is ready to return to Bangladesh save that his passport has expired and sought a replacement TD as soon as possible.

20.By email dated 14 March 2025, the application for issuance of the travel permit was submitted to CG. The application form and the Applicant’s photo were submitted by hand to CG on 19 March 2025.

21.On 25 March 2025, CG conducted a phone interview with the Applicant.

22.From 28 March 2025 to 6 April 2025, the office of CG was closed for holiday.

23.On 7 April 2025, the Director sought early issuance of the replacement TD and a telephone interview was scheduled on 8 April 2025 for the Applicant with CG.

24.After the phone interview on 8 April 2025, CG confirmed that the Applicant’s replacement TD would be issued on 11 April 2025.  The Applicant’s removal was scheduled for 29 April 2025 and electronic itinerary issued.

25.The Applicant’s replacement TD was issued by CG on 11 April 2025.

B4.  Reviews of Detention

26.The last review of detention conducted by the Director was on 15 April 2025.  Having considered and balancing the following factors, it was decided by the Director that the Applicant should remain in detention:

(1)  The Applicant’s removal is imminent and/or repatriation is being arranged for the Applicant’s departure: under the prevailing removal policy, the removal of unsubstantiated non-refoulement claimant can be proceeded upon the dismissal of his application for leave to apply for judicial review, and there is no outstanding claim impeding removal;

(2)  The Applicant poses a threat/security risk to the community: given that he was arrested by the police in 2019 and fined;

(3)  There is a risk of re-offending given the Applicant had committed offences whilst on recognizance;

(4)  There is a risk of absconding given the Applicant’s initial refusal to cooperate with re-entry formalities; and

(5)  The Applicant does not have a fixed abode or close connection in Hong Kong to make it likely that he will be easily located.

C.  The Applicant’s submissions

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

(1)  He has been detained at CIC without knowing why he has been detained when he has never committed any crime in Hong Kong nor failed to report to ImmD;

(2)  Even though he is now willing to go back to Bangladesh, there is no progress yet and his passport has expired which will take a year to get the verification from the CG and it would not be right for him to be detained for years; and

(3)  He will undertake not to be involved in any illegal activities, break any law and will stay at the address provided by the International Social Service Hong Kong and inform the ImmD of any change of address as well as comply with any condition made by the Director.

28.At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions and that he had no further submissions to make in respect of the Application.

29.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

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 respondent 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.”

E.  Analysis

34.With the above principles in mind, I turn now to consider whether the Detention is lawful.

35.There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A)  of IO.  The RO remains valid and subsisting, and is not the subject of challenge.

36.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).

37.The starting point is that the period of detention to date is 94 days, against which other factors must be weighed and balanced.

38.I accept that, throughout the Detention, the Applicant was detained for the purpose of his removal from Hong Kong, and that the power of detention is being used only for this purpose. This is evident from the Director’s efforts in seeking replacement TD for the Applicant even before the Detention and the continued active liaison with CG after the Applicant was detained.  HS1 is satisfied.

39.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 TD for the Applicant before the Detention and continued liaison with CG to secure the re-entry of the Applicant to Bangladesh.  HS4 is also satisfied.

40.Given that there is now issued to the Applicant a replacement TD and a flight has been scheduled for 29 April 2025, and the Applicant has confirmed he is willing to return to Bangladesh, contrary to the Applicant’s submissions that there is no progress on his removal and he will be detained for years, it is reasonable to think that deportation can be effected within a reasonable period.

41.Based on the authorities cited above: (1)  the period from 21 January 2025 to 23 February 2025, whereby due to the Applicant’s refusal to cooperate with the re-entry formalities, his detention was prolonged; and (2)  the period from 28 March 2025 to 6 April 2025, when the office of CG was closed for the holidays, such that removal was prevented or delayed by a factor not within the control of the Director, 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. 

42.The Applicant submitted that he refused to cooperate with the re-entry because he was not told on 21 January 2025, when he was interviewed, the reasons for his detention. However, he confirmed that he had signed the “Notice of Detention under section 32 of the Immigration Ordinance”.  Although this was not interpreted to him, he confirmed that he received the same document in Bengali, which he had signed.  That document informed him inter alia that was being detained, the provisions of IO that he was detained under and the reasons for detaining him.  I therefore do not accept his given reason for his non-cooperation as reasonable.

43.Moreover, I accept the Director’s assessment that with the Applicant’s history of committing an offence whilst on recognizance (contrary to the Applicant’s submissions he had never committed any offence in Hong Kong), the previous refusal to cooperate with the re-entry formalities, and lack of local ties, there is a real risk of the Applicant absconding and/or re-offending.  If such risk was to eventuate, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO.

44.I do not believe that the Applicant’s undertakings 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.

F.  Conclusion

46.Accordingly, I dismiss the Application with no order as to costs.

The Applicant, appeared in person

Ms Yvonne Cheung, Senior Government Counsel, of Department of Justice for the Respondent