Shipon M R Shamsuzzaman v. Director of Immigration

HCAL 1004/2026

[2026] HKCFI 4711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1004 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 2 June 2026 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he is currently being detained (“the Application”).  He has been detained since 31 July 2025 making the period of detention to date is 383 days (“the Detention”).

2.On 4 June 2026, I directed the named respondent to the Application inter alia to lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.  A Response/Skeleton Submissions for the Respondent dated 31 July 2026 (“the Response”) has been lodged. 

3.It came to this court’s attention by a Memorandum of Notification of an Application for Legal Aid dated 4 August 2026 that the Applicant has applied for legal aid.  Pursuant to s.15(4) of the Legal Aid Ordinance, Cap. 91 and s.7A of the Legal Aid Regulations, Cap. 91A, a 42-day stay of these proceedings was triggered.  By letter dated 12 August 2026 from the Department of Justice (“DOJ”), acting on behalf of the Respondent, it was submitted that the stay ought to be lifted.  On the same day, this court lifted the stay and ordered today’s hearing do stand.  My reasons for doing so are similar to those as stated by Coleman J in Ousmane Issa Boubacar v Director of Immigration [2023] HKCFI 2602 (see §7):

(1)  Applications for a writ of habeas corpus are to be heard as soon as is practicable;

(2)  But, if a writ of habeas corpus has been issued in respect of a detained person, the person having custody of the detained person must not, until the writ has been discharged or the proceedings are concluded allow the detained person to be removed from Hong Kong: see s.22A(11) of High Court Ordinance, Cap.4;

(3)  Hence, the practical effect of making an application for writ of habeas corpus is to create a legal impediment to removal of the detained person from Hong Kong;

(4)  There is an inherent inconsistency between: (1) making an application which seeks immediate release from detention, and which should be heard as soon as practicable; and (2) making another application (here, an application for legal aid which has the effect of triggering an automatic stay of 42 days) which by its nature would prevent or delay release from detention;

(5)  There is also inconsistency or tension between an application which seeks immediate release and a collateral application which frustrates an imminent release in fact already arranged;

(6)  Hence, if the Applicant is correct, and his detention has become and/or will become unlawful, his own action in applying for legal aid – thereby triggering the automatic stay – might cause him real unfairness and prejudice;

(7)  The counter risk of prejudice is in depriving the Applicant of the potential opportunity to obtain legal representation is significantly less likely to give rise to any real prejudice;

(8)  This is because of the approach to habeas corpus applications, where the central question to be determined is whether there is, and continues to be, lawful authority for the detention, where an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances;

(9)  It is not incumbent on the applicant to demonstrate unlawfulness;

(10)  The burden of showing that detention is lawful lies upon the respondent, but the Court is the primary decision maker as to the reasonableness of the detainee’s continued detention;

(11)  Either continuing detention is reasonable and so lawful, or it is not;

(12)  Further, on a habeas corpus application, the Court is not dealing with a non-refoulement claim (“NRC”), and is not deciding whether the applicant should not be removed from Hong Kong;

(13)  Instead, the Court is deciding whether the applicant – typically subject to a removal order and/or deportation order – has been lawfully detained, and can continue to be lawfully detained, pending his removal or deportation from Hong Kong.

4.At today’s hearing, the Applicant has appeared in person with the assistance of an interpreter.  He has also confirmed that he has been served the Response and a bundle of documents prepared by DOJ.

5.This is my Decision having heard the oral submissions of the Applicant and Mr Tong, Acting Senior Government Counsel, appearing for the Respondent.

B.  Background

B1.  Immigration status and stay in HK

6.The Applicant is a Bangladeshi national born on 3 May 1977.

7.On 5 January 2016, the Applicant was arrested by the Police for suspected illegal remaining.  He was released on recognizance on 25 January 2016.

8.On 8 January 2019, a removal order (“RO”) under s.19(1)(b) of the Immigration Ordinance, Cap.115 (“IO”) was issued against the Applicant.

9.On 25 May 2023, the Applicant failed to report recognizance. On 8 June 2023, he reported recognizance and claimed that he lost his immigration paper.

10.On 4 July 2023, the Applicant’s recognizance was resumed.

11.On 31 July 2025, the Applicant’s recognizance was ceased and he was detained.

B2.  The Applicant’s NRC and related legal proceedings

12.On 8 January 2019, the Applicant’s NRC was refused by the Director of Immigration (“the Director”) on all applicable grounds (“the Director’s Decision”).

13.On 3 October 2019, the Applicant’s appeal/petition against the Director’s Decision was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

14.On 8 October 2019, the Applicant applied for leave to apply for judicial review against the Board’s Decision (“JR Leave Application”) which was dismissed by the Court of First Instance on 13 May 2025 (“the CFI Decision”).

15.On 14 January 2026, the Immigration Department (“ImmD”) received the Applicant’s written request to make a subsequent claim which was refused on 6 March 2026.

16.On 12 March 2026, the Applicant applied for an extension of time to appeal against the CFI Decision which was dismissed on 29 April 2026.

17.On 25 June 2026, the Applicant applied for an extension of time to appeal against the CFI Decision from the Court of Appeal.

18.On 16 July 2026, ImmD received a second request to make a subsequent claim from the Applicant which was refused on 23 July 2026.

B3.  Steps towards the removal of the Applicant

19.Since the commencement of the Detention, the Applicant was interviewed by ImmD (on 31 July 2025, 21 August 2025, 5 September 2025, 19 September 2025, 9 October 2025, 22 October 2025, 31 October 2025, 25 November 2025, 17 December 2025, 30 December 2025, 20 January 2026, 28 January 2026, 3 March 2026, 18 March 2026, 13 April 2026, 27 April 2026, 13 May 2026, 24 June 2026 and 13 July 2026) but save for one interview on 4 September 2025, he consistently expressed his unwillingness to return to Bangladesh and refused to cooperate with the re-entry seeking formalities including completing the application form, taking photos and attending interview with the Consulate General  of the People’s Republic of Bangladesh (“CG”).  He had been informed that his uncooperativeness would impede his removal and eventually prolong his detention.

20.Given the Applicant’s uncooperative attitude, by letters/emails dated 7 August 2025, 9 September 2025, 6 November 2025, 7 December 2025, 5 January 2026, 6 January 2026, 5 February 2026, 3 March 2026, 30 March 2026, 8 April 2026, 5 May 2026, 5 June 2026 and 24 June 2026, ImmD requested CG’s assistance for alternative means for the issuance of a replacement travel document (“RTD”) as soon as possible given the Applicant’s passport had expired.

21.On 4 March 2025 and 15 June 2026, arrangements were made for CG to conduct interview with the Applicant at TGCI but the Applicant refused to attend both interviews.

22.Furthermore, ImmD phoned CG for exempting the requirement for re-entry application form on 9 July 2026. However, CG maintained that the Applicant was required to complete the re-entry application for issuance of the RTD.

B4.  Reviews of Detention

23.The last review of detention was conducted by the Director on 23 July 2026. Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  Following the refusal of the JR Leave Application, and despite his appeal to the Court of Appeal, the Applicant is liable to be removed, and with active liaison with CG to issue a RTD to the Applicant and if he cooperates, a RTD can be issued within 2 weeks, his removal is going to be possible within a reasonable time;

(2)  Given his expressed unwillingness to return to his home country, coupled with the lack of local connection and having failed to report once, it is considered that there is a risk of absconding if he was released on recognizance; and

(3)  Having considered all the relevant circumstances and balancing all factors including the length of detention, release is not warranted.

C.  The Applicant’s Submissions

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

(1)  The Director has failed to exercise proper, reasonable diligence to carry out his removal;

(2)  The Detention has exceeded what is reasonably necessary;

(3)  The Director failed to present an actual schedule when he can be removed or to show that he can be removed within the foreseeable future;

(4)  The Director has not conducted “updated, individualized assessment” showing how passage of time affects the risk factors;

(5)  It is not correct that the Applicant does not have close connections to Hong Kong as he has a girlfriend who lives and work lawfully in Hong Kong as a foreign domestic helper; and

(6)  His girlfriend can act as his guarantor and can provide full financial support of the Applicant such as to eliminate any concern that the Applicant would seek unlawful work.

25.At the hearing, the Applicant confirmed the preceding paragraph represent an accurate summary of his submissions.  He further supplemented that his wife was killed by “a political party” on 15 April 2025 and he has a 10 years old son in his home country but no one is looking after him. Nonetheless, he confirmed that he did not wish to return to his home country. 

26.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

27.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.

28.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.

29.Under s.32(4A) of IO, the detention of a person under s.32 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.

30.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:

“(1) It is plain that the relevant relatively lengthy period of immigration detention is substantially caused and necessitated by the applicant’s own unreasonable conduct and acts in significantly delaying the disposal of his NRC. In other words, had he pursued his NRC reasonably diligently, as he ought to have, he would most likely have been ready to be removed expeditiously upon his release from prison. As stated by the Judge at [31] of the Written Judgment, the Liberian Embassy would be able to issue the applicant the replacement passport in 2 weeks once all the formalities have been completed, and in fact, it was the applicant’s own case that he would be able to obtain the replacement passport even quicker. In the premises, the applicant’s further frustration of the replacement of his passport has therefore further compounded the delaying effect caused by his unreasonable conduct in his pursuit of the NRC.

(2) In the circumstances, the Judge’s emphasis on the relatively long period of the detention in the present case as the starting and in effect the tipping point to show that the detention had become unreasonably excessive simply cannot be right.

(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.”

31.Furthermore, at §37, it was held that even if there are ongoing NRC, 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 NRC is disposed of. 

E.  Analysis

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

33.There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A) of IO.  There can be no dispute that the RO made against the Applicant is valid and extant. 

34.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 for Security (“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).

35.The starting point is that the period of detention to date is 383 days, which no doubt is a very long period of time, against which the other factors must be weighed and balanced.

36.I accept that the Applicant has been detained for the purpose of removal, and that the power of detention is being used only for that purpose.  Contrary to the Applicant’s submissions, I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the proactive efforts and continued liaison with CG to secure a RTD for his return and the numerous and frequent interviews to ascertain Applicant’s willingness to return to his home country.  I am of the view that both HS1 and HS4 are satisfied.

37.Although there is an outstanding application to the Court of Appeal, under the current removal policy, this does not constitute a legal impediment to removal.  With the active liaison with CG, there is no reason to believe that the Applicant cannot be removed within a reasonable period of time if he cooperates.  The failure to give a time frame for removal is his own-doing.  In so far as the Applicant had not previously cooperated with the re-entry seeking formalities and not pursuing his NRC promptly and only sought to appeal against the CFI Decision after commencement of the Detention, the prolonged period of detention as a result of his unreasonable conduct should not be regarded as unreasonable or turn an otherwise lawful detention into an unlawful one.  Otherwise, the more unreasonably and uncooperatively he behaves in seeking to frustrate or delay his removal, the more likely he is to be released which the Court of Appeal in Johnson Benjamin held cannot be the intention of the Hardial Singh principles. 

38.I also accept the Director’s assessment given the Applicant’s unwillingness to return to his home country, previous failure to report recognizance, coupled with his lack of connection to Hong Kong even if he claims to have a girlfriend in Hong Kong who is not a permanent Hong Kong resident, 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).

39.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.

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

F.  Conclusion

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

The Applicant, appeared in person

Mr Andrew Tong, Acting Senior Government Counsel of Department of Justice, for the Respondent