Imam Hossain Khan v. Director of Immigration and Another

HCAL 558/2026

[2026] HKCFI 3410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 558 OF 2026

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BETWEEN

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DECISION

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A. Introduction

1.I have before me an application for writ of habeas corpus by the Applicant filed on 12 March 2026 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”)  where he is currently being detained (“the Application”).  He has been detained since 7 July 2025 making the period of detention to date is 338 days (“the Detention”).

2.This is the second application for writ of habeas corpus by the Applicant.  The first was filed on 28 November 2025 and was dismissed by me following the hearing on 13 January 2026: see [2026] HKCFI 277 (“1^st Decision”).

3.On 16 March 2026, I directed the named respondents to the Application inter alia to lodge and serve their response to the Application and the Applicant’s Affirmation filed in support of the Application.  A Response/Skeleton Submissions for the Respondents dated 21 May 2026 (“the Response”)  has been lodged on behalf of the Respondents.  

4.At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.  He has confirmed that he has been served the Response and two bundles of documents prepared by the Department of Justice (“DOJ”)  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

6.In sections B1-B3 of the 1^st Decision (see §§6-25), I had set out the background which shall not be repeated herein.  For convenience and ease of reference, save as otherwise defined, I shall adopt the same definitions and abbreviations as the 1^st Decision.

7.The salient events which occurred after the 1^st Decision are as follows:

(1)  ImmD conducted an interview with the Applicant on 6 February 2026 and, for the first time, the Applicant indicated his willingness to return and agreed to cooperate with the re-entry formalities.  In subsequent interviews by ImmD (on 12 February 2026, 26 February 2026, 12 March 2026, 18 March 2026, 20 March 2026, 24 March 2026, 9 April 2026, 20 April 2026 and 13 May 2026), he maintained his willingness to return;

(2)  On 26 February 2026, the completed re-entry application form and photos and written submissions regarding the Applicant’s willingness to return were secured from the Applicant;

(3)  On 5 March 2026, ImmD wrote to CG seeking to expedite the issuance of the Applicant’s travel document (“TD”);

(4)  On 9 March 2026, ImmD liaised with CG and an appointment was made to submit the Applicant’s re-entry application on 12 March 2026 which was so submitted;

(5)  On 13 March 2026, CG conducted a phone interview with the Applicant for his re-entry application;

(6)  On 16 March 2026, ImmD contacted CG requesting to expediate the issuance of TD;

(7)  On 24 March 2026, ImmD contacted CG and requested the issuance of TD. CG stated that the application was under active processing in Bangladesh.  The Applicant was contacted and confirmed that CG had contacted him in relation to the re-entry application;

(8)  On 25 March 2026, ImmD requested CG to expedite the issuance of TD.  CG stated that the provision of the Applicant’s mobile phone number would facilitate the re-entry application;

(9)  On 8 and 15 May 2026, ImmD again requested CG to expedite the process of issuance of the TD;

(10)  The last review of detention was conducted by the Director on 9 April 2026.  Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(a)  The removal of the Applicant is imminent.  Given the Applicant’s recent cooperative behaviour and active liaison with CG, the Applicant could be removed as soon as TD is issued in the foreseeable future; and

(b)  Given the Applicant had failed to report recognizance and last abscondence for more than two years, and the fact that a HKPR fiancée does not outweigh other factors against release stated above.

C.  The Applicant’s Submissions

8.In the Applicant’s Affirmation, apart from reciting general legal principals and quotation copied from similar previous applications, in gist, the following submissions were made:

(1)  It is not possible to remove him within a short reasonable period and therefore the present detention is unlawful;

(2)  He has been detained more than 8 months now and still he has not been sent back;

(3)  He has cooperated with ImmD but it has been at least 3 months since and ImmD failed to obtain the TD;

(4)  He previously failed to report because he could not access his case officer and he was under stress due to his father’s death;

(5)  He promises to remain law abiding and report as requested by ImmD and is willing to provide a cash surety and has HKPR friends who can act as his surety.

9.At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He had also written a letter dated 28 May 2026 which repeated that despite his cooperation, the Director has not been able to obtain a travel document for him and his further detention is unlawful and unreasonable. 

10.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

11.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.

12.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.

13.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.

E.  Analysis

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

15.There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A)  of IO pending his removal from Hong Kong.  There is no dispute that the RO made against the Applicant is valid and extant. 

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

See Harjang Singh at §164(8).

17.The starting point is that the period of detention to date is 338 days, against which the other factors must be weighed and balanced.

18.I accept that the Applicant has been detained for the purpose of his removal from Hong Kong 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 Director’s repeated efforts to seek to expedite the issuance of TD and frequent interviews with the Applicant.  Therefore both HS1 and HS4 are satisfied.

19.Whilst the TD has not been issued despite the Director’s efforts, this is not a matter within the control of the Director.  Generally speaking, the processing time for the issuance of TD would be around 6 months upon fulfilling all requirements of CG which is a reasonable period of time.  With the Applicant’s continued cooperation, the active liaison with CG and reassurance from CG that the TD application is under active processing, there is no reason to believe that the Applicant cannot be removed within a reasonable period of time.  Had the Applicant cooperated earlier, it may well be that the TD would have been issued and the prolonged detention by his earlier lack of cooperation should not turn an otherwise lawful detention into an unlawful one: see 1^st Decision, §42.

20.I also accept the Director’s assessment that with his past record of absconding, coupled with the Applicant’s previous stated unwillingness to return and even taking into account his HKPR fiancée and his submissions, 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).

21.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.

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

F.  Conclusion

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

The Applicant, appeared in person

Mr Cliff Chan, Government Counsel of Department of Justice, for the 1^st and 2^nd Respondents