Abu Saiyed Sumon v. Director of Immigration and Another

HCAL 1185/2025

[2025] HKCFI 3592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1185 OF 2025

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BETWEEN

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DECISION

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1.Introduction

1.1The Applicant is subject to a Removal Order and a Deportation Order respectively dated 5 October 2018 and 21 September 2023. He has been held in immigration detention since 13 November 2024 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 273 days.

1.2This is my decision on the Applicant’s application for a writ of habeas corpus filed on 21 May 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Mr Eric Ko, Senior Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.Background

2.1The Applicant is a Bangladeshi national. On 12 May 2016, he was arrested by the police for illegal remaining. He was later released on recognizance on 12 June 2016.

2.2Whilst on recognizance, on 18 August 2022, 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.

2.3The Applicant does not have family connection in Hong Kong.

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

3.1The Applicant’s NRC was rejected by the Director on 15 May 2018. His subsequent appeal/petition to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office was dismissed on 19 May 2020 (“TCAB Decision”).

3.2The Applicant’s application for leave to apply for judicial review against the TCAB Decision (HCAL 1448/2020) was refused on 16 November 2023 (“CFI Decision”). His subsequent application for extension of time to appeal against the CFI Decision was refused on 11 September 2024.

3.3On 19 September 2024, the Applicant renewed his application to the Court of Appeal for extension to time to appeal against the CFI Decision (CAMP 183/2024), the result of which is now pending.

4.The present detention and its reviews

4.1As the Applicant’s passport had expired on 7 February 2017, efforts were made to liaise with the Consulate General of the People’s Republic of Bangladesh (“CG”) for the issuance of a replacement travel document.

4.2Throughout 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. Were the Applicant to cooperate in completing the reentry formalities, an emergency travel document can be issued within 2 weeks’ time.

4.3In the latest review conducted in June 2025, the Applicant’s release was thought to be unwarranted by reason of the following broad grounds:

(1) There was no legal impediment to the Applicant’s removal and his removal was going to be possible within a reasonable time;

(2) His refusal to cooperate with the reentry formalities had directly or indirectly delayed his removal;

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

(4) There was no indication that he could not receive proper medical care during detention;

(5) 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 promises not to abscond and there is no previous history which might give rise to any concerns;

(3) His legal proceedings have not concluded and were they determined against him, further legal challenges are available to him

(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 (eye problem and knee injury).

5.2At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of his application. He emphasized that CAMP 183/2024 is still ongoing and he will be harmed were he repatriated back to his home country.

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 section 32(3A) 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 273 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.

7.5Shortly after the commencement of the present detention on 13 November 2024, there was no legal impediment to the Applicant’s removal by reason of the Updated Removal Policy as the CFI Decision was handed down on 16 November 2024. The Applicant’s position that CAMP 183/2024 presents a legal impediment is erroneous.

7.6The length of the present detention, whilst lengthy, has been caused primarily by the Applicant’s own refusal to cooperate with the reentry formalities. Viewed thus, the length of the present detention is self-induced by the Applicant’s own behaviour.

7.7In 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).

7.8In relation to the Applicant’s physical ailments, 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. 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.

7.9Overall, 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

Mr Eric Ko, Senior Government Counsel, of Department of Justice, for the respondents