Barua Shibli v. Immigration Department and Another

HCAL 1080/2026

[2026] HKCFI 4875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1080 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 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 27 May 2026 making the period of detention to date is 90 days (“the Detention”).

2.On 17 June 2026, I directed the named respondents 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 Respondents dated 10 August 2026 (“the Response”) has been lodged. 

3.At today’s hearing, the Applicant has appeared in person with the assistance of an interpreter.  He has confirmed that he has been served the Response and 2 bundles of documents prepared by the Department of Justice (“DOJ”) acting on behalf of the Respondents.

4.This is my Decision having heard the oral submissions of the Applicant and Mr Mok, Government Counsel, appearing for the Respondents.

B.  Background

B1.  Immigration status and stay in HK

5.The Applicant is a Bangladeshi national born on 6 June 1986.

6.On 28 April 2025, the Applicant arrived in Hong Kong on the strength of his Bangladeshi passport and was permitted to stay in Hong Kong as a visitor until 6 May 2025.  He did not depart and since 7 May 2025 overstayed.

7.On 21 May 2025, the Applicant was arrested by the Police for: (a) taking employment/establishing/joining in any business while being a person who remains in Hong Kong in breach of the limit of stay imposed in relation to the permission given to land; and (b) breach of condition of stay.  He was convicted and sentenced to a total of 15 months’ imprisonment.

8.On 27 May 2026, the Applicant was discharged from prison and since then detained at CIC.

9.On 7 July 2026, a deportation order (“DO”) was issued against the Applicant under s.20(1)(a) of the Immigration Ordinance, Cap. 115 (“IO”).

B2.  The Applicant’s non-refoulement claim (“NRC”) and related legal proceedings

10.On 10 July 2025 and 1 August 2025, the Applicant lodged a NRC which was refused by the Director of Immigration (“the Director”) on 10 November 2025 (“the Director’s Decision”).

11.On 9 December 2025, the Applicant lodged an appeal/petition against the Director’s Decision but this was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office on 19 December 2025 (“the Board’s Decision”).

12.On 11 August 2026, the Applicant applied for leave to apply for judicial review against the Board’s Decision (“JR Leave Application”). 

13.By letter dated 12 August 2026, DOJ wrote to the High Court to inform that the Applicant is being detained at CIC pending deportation and to seek priority to be accorded to the JR Leave Application. 

14.The JR Leave Application will be heard on 17 September 2026.

B3.  Steps towards the removal of the Applicant

15.Since the commencement of the Detention, the Applicant was interviewed by the Immigration Department (on 5 June 2026, 16 June 2026, 16 July 2025, 22 July 2026 and 28 July 2026) but he consistently expressed his unwillingness to return to Bangladesh and refused to cooperate with the removal arrangement.  He had been informed that under s.32(4A) of IO his detention would not be unlawful if he prevented or delayed the removal.

16.A removal operation was scheduled for 27 August 2026.

B4.  Reviews of Detention

17.The last review of detention was conducted by the Director on 6 August 2026. Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  There being no application to the Court of First Instance in relation to the Board’s Decision, with a valid travel document and removal operation scheduled for 27 August 2026, if the Applicant cooperates, his removal is going to be possible within a reasonable time;

(2)  Given his previous convictions which formed the basis of the DO, expressed unwillingness to return to his home country, coupled with the lack of local connection, it is considered that there is a risk of absconding and/or re-offending if he was released on recognizance; and

(3)  Having considered all the relevant circumstances including the claimed medical condition of the Applicant, balancing all factors, release is not warranted.

C.  The Applicant’s Submissions

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

(1)  The purpose of the Detention is not being used for the purpose of removal but to protect the public;

(2)  The Detention is unreasonable;

(3)  His removal cannot be effected within reasonable time and the Director cannot say when or how he can be removed;

(4)  The Director failed to take into account relevant considerations, his representations and submissions;

(5)  He has been detained without notice and without reason other than there is an intention to deport him;

(6)  He has never committed any serious crime in Hong Kong or been convicted of any crime connected to violence.  He is willing to give an undertaking not to commit any offence or engage in illegal activities.  Therefore he does not pose a security risk to the community if released;

(7)  He has applied for judicial review and until now no hearing date has been fixed and he has the opportunity to further appeal to the Court of Final Appeal and lodge a subsequent claim.  The assessment that his removal is possible is unreasonable given the legal impediment to his removal;

(8)  He is willing to give an undertaking to report on a weekly basis and comply with any conditions as the Director thinks appropriate and provide an address to the Court;

(9)  He can pay HK$4,000 as surety;

(10)  He believes that he is the prime target of his enemies and if he falls into their hands, he will be tortured or even killed.  He faces serious harm or death if returned; and

(11)  Every single day he goes through emotional and psychological trauma of being unlawfully detained and any additional time in detention will create unnecessary stress and pressure affecting his physical and mental health.

19.At the hearing, the Applicant confirmed the preceding paragraph represent an accurate summary of his submissions.  He further supplemented that he had delayed filing the JR Leave Application because he was in detention and no one could help him.  Now that he has applied for judicial review he should be released.  He also mentioned that he knows of other detainees who were released and were not detained for as long as him.  He also stated that he has son in Bangladesh who is 4 years old but he has only been allowed a 5 minutes phone call to his son every week.  

20.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

21.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.

22.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.

23.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.

24.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.”

E.  Analysis

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

26.There is clear prima facie authority for the detention of the Applicant throughout the Detention: (a) between 27 May 2026 and 2 June 2026 under s.32(A)(a) of IO pending the decision whether a removal order should be made against him; (b) between 3 June 2026 and 16 June 2026 under s.32(2A)(b) of IO pending the decision whether a removal order should be made against him; (c) between 17 June 2026 and 30 June 2026 under s.29(1)  of IO for inquiry as to whether a deportation order should be made against him; (d) between 1 July 2026 and 7 July under s.29(2) of IO for inquiry as to whether a deportation order should be made against him; and (e) since 7 July 2026 under s.32(3A) of IO pending his removal from Hong Kong under the DO.  There can be no dispute that the DO made against the Applicant is valid and extant. 

27.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).

28.The starting point is that the period of detention to date is 90 days, against which the other factors must be weighed and balanced.

29.Contrary to the Applicant’s submissions, 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.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal. This is evident from the regular and frequent interviews to ascertain Applicant’s willingness to return to his home country, the repatriation arrangements and swiftly seeking priority to be accorded to the JR Leave Application.  I am of the view that both HS1 and HS4 are satisfied.

30.Notwithstanding there is now a legal impediment to the Applicant’s removal, with a hearing scheduled for 17 September 2026 to determine the JR Leave Application, I have no reason to believe that once determined against the Applicant, if the Applicant cooperates, he cannot be removed within a reasonable period of time.  In so far as the Applicant had not previously cooperated with the removal arrangements and not pursued his NRC promptly and only filing the JR Leave Application 5 months out of time, 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. I do not accept that being in detention excuses the Applicant from pursuing his NRC-related claims promptly and certainly has not prevented him from filing the Application and the JR Leave Application.

31.I also accept the Director’s assessment given the Applicant’s previous convictions of offences, the seriousness of which led to the making of DO, his expressed unwillingness to return to his home country, coupled with his lack of connection to Hong Kong, also bearing in mind he is an overstayer, there is a real risk of the Applicant absconding and/or re-offending.  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 effect of the DO.  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).

32.Although the Applicant says that his life is in danger in his home country, 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. 

33.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 evidence to suggest that the Applicant is medically unfit for continued detention: see 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.

34.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.

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

F.  Conclusion

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

The Applicant appeared in person

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