Shoman Abu Zafor v. Director of Immigration and Another

HCAL 1113/2025

[2025] HKCFI 3580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1113 OF 2025

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D E C I S I O N

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1.Introduction

1.1The Applicant is subject to a Removal Order and a Deportation Order respectively dated 24 March 2017 and 13 December 2024. He has been held in immigration detention since 27 July 2024 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 381 days.

1.2This is my decision on the Applicant’s application for a writ of habeas corpus filed on 14 May 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Ms Linda Lam, Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.Background

2.1The Applicant is a Bangladeshi national born in 1985. On 1 March 2017, he was arrested by the police as a suspected illegal immigrant. He was later released on recognizance on 6 May 2017.

2.2The Applicant failed to report for recognizance on 17 January 2022 and subsequently surrendered on 21 March 2022. His recognizance was resumed on 28 March 2022.

2.3Whilst on recognizance, on 26 September 2023, the Applicant was arrested for suspected breach of condition of stay. On 24 October 2023, the Applicant was convicted of “taking employment while being a person in respect of whom a removal order is in force” and sentenced to 15 months’ imprisonment.

2.4The current detention commenced upon the Applicant’s discharge from prison.

2.5The Applicant does not have family connection in Hong Kong. However, he has adduced evidence that he has a friend who is a permanent resident in Hong Kong and is willing to act as his guarantor for his release.

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

3.1The Applicant’s NRC was rejected by the Director on 11 December 2018. His subsequent appeal/petition to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office was dismissed on 25 March 2021 (“TCAB Decision”).

3.2The Applicant’s application for leave to apply for judicial review against the TCAB Decision (HCAL 777/2021) was refused by DHCJ To on 29 October 2024 (“CFI Decision”). His subsequent application for extension of time to appeal against the CFI Decision was refused on 5 December 2024.

3.3On 16 January 2025, the Applicant renewed his application to the Court of Appeal for extension of time to appeal against the CFI Decision (CAMP 12/2025), which renewed application was dismissed on 29 May 2025.

4.The present detention and its reviews

4.1The current detention is pursuant to the following sections of the Ordinance:

(1)  From 27 July to 28 November 2024, pursuant to section 32(3A) pending removal under the Removal Order;

(2)  From 29 November to 12 December 2024, pursuant to section 29(1) for inquiry as to whether the Applicant should be deported;

(3)  From 13 December 2024, pursuant to section 32(3) pending removal under the Deportation Order.

4.2As the Applicant does not possess a valid travel document, even prior to the commencement of the present detention, efforts were made to liaise with the Consulate General of the People’s Republic of Bangladesh (“CG”) for the issuance of an emergency travel document.

4.3Throughout the present detention, the Applicant has persistently expressed his unwillingness to return to his home country and refused to cooperate in completing the reentry formalities. Despite efforts made to explore alternative means with the CG given the Applicant’s refusal to cooperate in completing the reentry formalities, no progress has been made. It is expected that were the Applicant to cooperate with the necessary formalities, an emergency travel document can be issued in about 2 weeks’ time.

4.4In the latest reviews conducted in July 2025, the Applicant’s release was considered to be unwarranted by reason of the following broad grounds:

(1)  His removal was going to be possible within a reasonable time;

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

(3)  He might abscond and/or (re)offend;

(4)  There were no other circumstances in favour of his release.

5.The Applicant’s submissions

5.1In his written materials, the Applicant puts forward the following grounds:

(1)  The length of his detention has become unreasonable;

(2)  He has the right to appeal to the Court of Final Appeal and lodge a subsequent claim;

(3)  He has a guarantor who is a permanent resident;

(4)  He fears for his own safety if repatriated;

(5)  No active steps have been taken to effect his removal;

(6)  He is suffering from his physical ailments and his mental health is affected by the current detention.

5.2At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of his application. He supplemented as follows: (1) he has in fact filed a Notice of Motion to the Court of Final Appeal on 9 July 2025, (2) the condition of detention is akin to being imprisoned, (3) he provided to the court a letter from a lawyer in Bangladesh to show that he has some political issues in his home country and a warrant of arrest has been issued against him, (4) he points out that he does not have any previous conviction involving violence, (5) he reiterates that he has health issues and (6) he is adamant that he does not wish to return to his home country by reason of perceived safety issues.

6.The applicable principles

6.1The 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.

6.2I 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.

6.3Under 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.

6.4The 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 §29(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.”

7.Analysis

7.1During the present detention, the Applicant is and has been detained pursuant to the identified sections of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2The 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 381 days, against which the various other factors must be weighed and balanced.

7.3As 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.

7.4I 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. The foregoing is amply demonstrated by the matters adumbrated above, including the efforts made in respect of an emergency travel document, despite the Applicant’s own refusal to cooperate.

7.5As at the commencement of the present detention, there were both legal and practical impediments to the Applicant’s removal. By reason of the Updated Removal Policy, the legal impediment was removed following the handing down of the CFI Decision in October 2024. Whilst the length of the present detention is objectively lengthy, it has been caused primarily by the Applicant’s own refusal to cooperate with the reentry formalities. As has been explained in Johnson Benjamin, such self-induced behaviour does not have the effect of rendering a period of detention caused by it to become unreasonable.

7.6In the light of the nature of the Applicant’s criminal record, I am prepared to proceed on the basis that he does not pose a threat or security risk to the community. I am however satisfied that the risks of reoffending and abscondment are real (especially given his professed unwillingness to return to his home country as emphasized at the hearing). I place weight on the risk of absconding, as that risk, if it materializes, would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.7The Applicant, through his former solicitors, had already informed the Immigration Department in October 2024 of his physical ailments in the form of a swollen ankle and a lump in his stomach. I accept Ms Lam’s submission that there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained. Indeed, the medical records adduced by the Applicant himself show that he regularly received treatment from outside hospitals, and the medical records adduced by the Respondents show that follow-up treatments and examinations have been scheduled. In any event, the Applicant's medical condition, whether physical or mental, does not have the effect of altering his continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.8The Applicant has adduced evidence to show that his friend, Mr Hussain Sabir, has a Hong Kong Identity Card and appears to be financially capable to act as his guarantor. However, I agree with Ms Lam that the offer of a guarantor does not outweigh the other factors against his release.

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

8.Conclusion

8.1By 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.

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

The Applicant, acting in person

Ms Linda Lam, Government Counsel, of the Department of Justice, for the Respondents