Tanbir Alam v. Director of Immigration

HCAL 1035/2026

[2026] HKCFI 4849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1035 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 8 June 2026 seeking his release from Castle Peak Bay Immigration Centre (“CIC”) where he is currently being detained (“the Application”).  He has been detained since 9 March 2026 (“the Detention”) making the period of detention to date 166 days.

2.On 11 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 for the Respondent dated 7 August 2026 (“the Response”) has been lodged. 

3.In the Response, it was stated inter alia that the Applicant is currently being detained under s.32(3A) of the Immigration Ordinance, Cap. 115 (“IO”) authorised by the Director of Immigration (“the Director”) who also decides whether the Applicant should be released on recognizance and enforces the Removal Order issued against the Applicant on 21 November 2019 (“RO”). The Response was thus filed on behalf the Director.  I agree that the Director is the proper respondent to the Application and should be treated as such. 

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 acting on behalf of the Director.

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

B.  Background

B1.  Immigration status and stay in HK

6.The Applicant is an Indian national born on 14 May 1982. 

7.The Applicant came to Hong Kong on 8 February 2008 on the strength of his Indian passport and was permitted to remain as a visitor until 22 February 2008.  He did not depart and overstayed since 23 February 2008.

8.On 16 March 2008, the Applicant was arrested by the Police for overstaying.

9.On 11 January 2019, the Applicant was convicted of the offence of possession of a dangerous drug and was fined HK$1,400.

10.On 21 November 2019, the RO was issued against the Applicant pursuant to s.19(1)(b) of IO.

11.On 22 August 2022, having been convicted of the offence of possession of a dangerous drug, the Applicant was sentenced to 3 months’ imprisonment.

12.On 17 January 2023, having been convicted of the offence of possession of a dangerous drug, the Applicant was sentenced to 4 weeks’ imprisonment.

13.On 9 March 2026, the Applicant’s recognizance was ceased and he was detained at CIC until present.

B2.  The Applicant’s Torture Claim, Non-Refoulement Claim (“NRC”) and related legal proceedings

14.On 25 March 2008, the Applicant lodged a torture claim under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment which was treated as a NRC and assessed under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) but this was rejected by the Director on 20 January 2015 (“Director’s Decision”).

15.On 20 January 2015, the Applicant appealed against the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) but this was dismissed on 7 April 2017.

16.On 21 April 2017, the Director invited the Applicant to submit any additional facts relevant to the NRC on other applicable grounds including under Article 2 of HKBOR.  By a Notice of Further Decision dated 9 May 2017 (“Director’s Further Decision”), the Director rejected the NRC on other applicable grounds.

17.The Applicant lodged an appeal/petition to the Board against the Director’s Further Decision which was treated as withdrawn by the Board upon receiving the Applicant’s written submissions requesting to withdraw his NRC related proceedings, as informed by the Board’s letter to the Applicant on 28 June 2019 (“the Board’s Decision”).

18.On 26 June 2020, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“JR Leave Application) but this was dismissed by the Court of First Instance on 29 January 2026.

B3.  Steps towards the removal of the Applicant

19.Even before the commencement of the Detention, by letters dated 26 January 2015, 14 June 2019 and 11 February 2026, the Immigration Department (“ImmD”) informed the Consulate General of India (“CG”) of the intended repatriation of the Applicant and for issuance of a replacement travel document (“RTD”) as the Applicant’s passport had expired.

20.Upon the commencement of the Detention, a letter was sent to CG notifying them of the Detention.  Further chasers for issuance of RTD were sent by letters dated 16 March 2026 and 28 April 2026.

21.Before and during the Detention, by written submissions or when the Applicant was interviewed by ImmD, at times (on 9 March 2026, 13 March 2026 and 20 April 2026), the Applicant expressed his willingness to return to India but other times (on 23 February 2026, 2 April 2026, 8 May 2026, 22 May 2026, 22 June 2026 and 21 July 2026), he expressed his unwillingness to return.  He was explained detention would not be considered unlawful if he prevented or delayed the removal under s.32(4A) of IO.  He was reminded that his uncooperativeness would impede his removal and potentially prolong his detention.

22.On 8 May 2026, the Applicant attended interview with CG and his application for RTD was submitted to CG on the same day.

23.On 27 May 2026, a RTD was issued to the Applicant with validity until 26 November 2026.

24.A removal operation for the Applicant’s removal is scheduled for 26 August 2026.

B4.  Reviews of Detention

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

(1)  With the JR Leave Application dismissed on 29 January 2026 and a valid Indian passport, save for the present application, there is no legal impediment to removal and the removal of the Applicant is possible within a reasonable time if he cooperates;

(2)  The Applicant has past convictions for serious drug-related offences, coupled with his unwillingness to return and lack of local connections, there is a real and substantial risk of his absconding and/or re-offending if released; and

(3)  There are no other circumstances in favour of the Applicant’s release.

C.  The Applicant’s Submissions

26.In the Applicant’s Affirmation, in gist, the following submissions were made:

(1)  He does not understand why he is being detained and ImmD detained him for no reason when he has never committed any serious crime in Hong Kong;

(2)  The food at CIC is of a very low quality which has caused his body to “deteriorate very badly”;

(3)  Any complaint to the superintendent and senior officer at CIC would result in him being “treated very badly”;

(4)  He should not be detained to protect the public;

(5)  The period of the Detention is unreasonable;

(6)  ImmD failed to take into account relevant considerations and submissions made by him during the Detention;

(7)  ImmD failed to give him a time of his removal;

(8)  His NRC is still being processed, he can appeal further and he has filed an application to the Court of Appeal.  He can file a subsequent claim because his life is still in danger;

(9)  The Director does not intend to deport him and he is not being detained for that purpose;

(10)  He has never committed offence connected with violence and of a serious nature.  He is willing to give an undertaking that he will not commit any offence or engage in any illegal activities such that he does not pose a risk to the community if released;

(11)  He provides an address of his friend who is a Hong Kong permanent resident where he can be found;

(12)  There are factors in favour of him being released on recognizance and if released, he is willing to comply with any conditions imposed by the Director as he may think appropriate; and

(13)  The officers at CIC told him various lies such as that he will be returned within a matter of days and if he cooperated and went to CG for a RTD to be issued he will be released but yet he remains in detention.

27.At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further submitted a two-page document with further submissions.  It mentioned that: (1) he was asked to go to CIC for signature on 9 March  2026 but was then told he would be detained and he will be sent back to his home country in 4 days yet ImmD took a long time and he decided he would not go back; (2) he repeated the promises by ImmD to give him “bail” if he went to CG and the lies told by the immigration officer; (3) he requested a reasonable time so he can sort out his problems and that he “need to go back country from outside not from CIC”; and (4) he can provide the HKID number and phone number of his Hong Kong resident guarantor.

28.I will take these submissions into account, and give them the weight in the balancing exercise as seems to me to be appropriate.

D.  Applicable Principles

29.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.

30.I 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.

31.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.

32.Moreover, the Court of Appeal 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.”

33.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

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

35.There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A) of IO which provides that in respect of a person whom a removal order is in force, he may be detained under the authority of the Director pending his removal.  There can be no dispute that the RO made against the Applicant is valid and extant. 

36.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).

37.The starting point is that the period of detention to date is 166 days against which the other factors must be weighed and balanced.

38.Contrary to the Applicant’s submissions, 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.  These are evident from the regular interviews with the Applicant in the hope that he would express willingness to return to India and cooperate with the removal, and the proactive liaison with CG to procure the RTD and removal operation arrangements.  HS1 and HS4 are satisfied.

39.With the disposal of the Application (contrary to the Applicant’s assertion, there are no outstanding NRC related proceedings),  a valid passport and repatriation scheduled for 26 August 2026, if the Applicant cooperates, there can be no doubt that he can be removed within a reasonable period of time.  In so far as the Applicant has failed to cooperate with the removal arrangements and indicates he may make subsequent claims or further appeal but had not done so promptly, any 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. His serious allegations against officers at CIC is not supported by any evidence and besides he can hardly complain about any delay to his removal caused by his own refusal to cooperate.  Given there are no outstanding NRC, he is expected to cooperate with the obtaining of travel documents and the removal.

40.I also accept the Director’s assessment that with the Applicant’s past convictions for a serious offence, coupled with the Applicant’s unwillingness to return and lack of local ties, and bearing in mind he is an over-stayer, there is a real and substantial risk of the Applicant re-offending and/or absconding.  If he were to abscond or re-offend, that would defeat the primary purpose for which the power to detain has been conferred and the intended effects of the RO.  The risks of absconding and re-offending are of critical and paramount importance in the assessment of the lawfulness of the detention. See Harjang Singh at §164(14).

41.Although the Applicant says that his life is in danger in India, as has been stated and repeated in many previous decisions, an application for habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his application for habeas corpus will not look at the merits of such claim. 

42.In relation to the Applicant’s claimed health conditions, in view of previous decided cases, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required.  There is no record of his complaints about to his health being affected by the quality of the food at CIC and there is no evidence to suggest that the Applicant is medically unfit for continued detention.  See e.g. Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government (Unrep) HCAL 2428/2018, 6 November 2018, per Chow J (as he then was) at §27 and Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 at §30 per Coleman J.

43.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.

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

F.  Conclusion

45.For all the above reasons, I dismiss the Application with no order as to costs.

The Applicant appeared in person

Mr Frenki Fung, Acting Senior Government Counsel of Department of Justice, for the Respondent