Alam Mahtab v. The Director of Immigration and Another

HCAL 1006/2026

[2026] HKCFI 4320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1006 OF 2026

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DECISION

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1.Introduction

1.1The Applicant is subject to a Removal Order made on 31 October 2024.  He has been held in immigration detention since 15 May 2026 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, he has been detained for 77 days. 

1.2This is my decision on the Applicant’s application for a writ of habeas corpus made on 2 June 2026.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Ms Angie Liu, Government Counsel, appeared for the Direction of Immigration (“Director”). 

2.Background

2.1The Applicant is an Indian national.  He arrived in Hong Kong on 13 November 2023 on the strength of his passport and was permitted to remain as a visitor until 27 November 2023.  He did not depart and has since overstayed. 

2.2On 23 December 2023, the Applicant was arrested by the police for overstaying and was referred to the Immigration department for investigation. He was subsequently released on recognizance on 7 March 2024. 

2.3Whilst on recognizance, on 27 January 2026, he was convicted of the offences of “Dealing with goods to which Dutiable Commodities Ordinance applies” and “Taking employment while being a person in respect of whom a removal order is in force”.  On 30 January 2026, he was sentenced to a total of 15 months’ imprisonment. 

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

2.5The Applicant has no family connection in Hong Kong. 

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

3.1The Applicant’s NRC was rejected by the Director on 21 February 2024. His subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 14 November 2024 (“TCAB Decision”).

3.2On 29 November 2024, the Applicant commenced HCAL 2306/2024 to seek leave to apply for judicial review against the TCAB Decision. 

3.3Even prior to the commencement of the present detention, on 7 May 2026, the Department of Justice had requested the Court of First Instance to accord priority to HCAL 2306/2024.  The hearing of HCAL 2306/2024 has be fixed for 23 July 2026. 

3.4During the present detention, on 8 July 2026, the Applicant applied for legal aid.  I was told today that the legal aid application did not prevent the 23 July 2026 hearing from proceeding as scheduled, as the legal stay was lifted.

4.The present detention and its reviews

4.1Throughout the present detention, the Applicant has persistently indicated his unwillingness to return to his home country and refused to cooperate in completing the reentry formalities. 

4.2As the Applicant’s passport had expired on 2 February 2026, even prior to the present detention, the Immigration Department had, on 16 April 2026, requested the Consulate General of India (“CG”) to issue a travel document to the Applicant. 

4.3An arrangement was made to escort the Applicant to attend CG for an interview on 9 July 2026.  Due to the Applicant’s refusal to cooperate, the escort operation had to be called off. 

4.4In the present application, the Applicant asserts that he is a “disable person”.  I was told today that shortly after the commencement of the present detention, the Applicant had on 19 May 2026 complained of eye pain and hearing problem, the latter requiring the Applicant wearing hearing aid.  His case has been referred to the Pamela Youde Nethersole Eastern Hospital for further management and his next appointment has been scheduled on 13 January 2027.

4.5In the latest review of the Applicant’s detention conducted on 21 July 2026, it was considered that the Applicant’s continued detention was justified by the following broad grounds:

(1)     The Applicant’s removal was going to be possible within a reasonable time as there was no reason to believe that HCAL 2306/2024 could not be finalized within a reasonable period of time;

(2)     There was a real and substantial risk of the Applicant (re)offending and absconding, the latter risk given the Applicant’s lack of local ties and his unwillingness to return to India;

(3)     His health condition had been taken into consideration;

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

5.The Applicant’s submissions

5.1The Applicant’s submissions may be summarized as follows:

(1)     He fears for his own safety if repatriated to his home country;

(2)     HCAL 2306/2024 remains extant;

(3)     He is willing to comply with recognizance conditions imposed;

(4)     He and his (unidentified) guarantor offer HK$4,000 as bail money;

(5)     He claims to be “disable person”. 

5.2At the hearing, the Applicant confirmed the accuracy of the above summary, save that the offered bail money was reduced to HK$2,000 or HK$3,000. He supplemented as follows.  He said that he had already served a lengthy period of imprisonment for his convictions and he would gladly return to his home country once his problems are resolved.  He further wishes to be released so that his medical conditions may be treated.

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.”

6.5In 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

7.1During the present detention, the Applicant is and has been detained pursuant to 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 77 days, against which the various other factors must be weighed and balanced. 

7.3I accept that, throughout the period of detention, the intention of the Director 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 has acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  The foregoing is amply demonstrated by the efforts made for the issuance of a travel document to the Applicant and the requests made to expedite the resolution of HCAL 2306/2024. 

7.4As 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. 

7.5At the hearing, the Applicant unequivocally confirmed that he would not cooperate in completing the reentry formalities.  The foregoing has two related effects.  First, as has been observed at Johnson Benjamin §37 (cited above), the existence of an ongoing non-refoulement does not excuse a detainee from rendering cooperation in completing the reentry formalities and such conduct is regarded as unreasonable.  Secondly, any prolongation of the Applicant’s detention due to his refusal to cooperate in effecting his own release (albeit in the form of repatriation) is entirely self-induced.

7.6I also take into account the timing of the legal aid application.  It seems to be that the timing of that application was, either intentionally or unintentionally, an attempt to seek to derail the hearing of his leave application on 23 July 2026.  In the event, it was not successful, but it seems to me that there is no reason for the Applicant to have only taken out his legal aid application in early July 2026, when HCAL 2306/2024 had been commenced on 29 November 2024.

7.7I accept the Director’s assessment that there is a real risk of the Applicant (re)offending, given that the nature of the convictions suggests that the offences were committed to fund his livelihood.  Should this risk materialize, the Applicant’s removal may be delayed by consequential investigations and court proceedings. 

7.8I further accept the Respondent’s submissions that considerable weight should be given to the assessment of the risk of absconding, given the Applicant’s lack of local ties and his professed unwillingness to return to his home country. 

7.9In relation to the Applicant’s claimed health conditions, they have already been referred to an outside hospital for management.  I have no doubt that the long waiting time for the next appointment in January 2027 is by reason of the heavy demand on the public health service.  I do not attach weight to the Applicant’s wish to be released so that he can obtain treatment, as it seems to me unlikely that he can obtain better or speedier treatment on his own.  In any event, the Applicant's medical conditions do not have the effect of altering her continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30. 

7.10Overall, 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, at least until the determination of HCAL 2306/2024 (which has already been heard) 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 Angie Liu (Government Counsel), of Department of Justice, for the Respondents