SAEED UR REHMAN v. DIRECTOR OF IMMIGRATION

HCAL 98/2026

[2026] HKCFI 1936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 98 OF 2026

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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 January 2026 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he is currently being detained (“the Application”).  He has been detained since 14 November 2025 making the period of detention to date is 138 days (“the Detention”).

2.  On 13 January 2026, I directed the named respondent to the Application to inter alia 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 20 March 2026 (“the Response”) has been lodged. 

3.  In the Response, it was stated that it was the Secretary for Security (“the Secretary”) who authorised the powers of detention of the Applicant under s.32(3) of the Immigration Ordinance, Cap. 115 (“IO”) whereas it was the Director of Immigration (“the Director”) who decides whether the Applicant should be released on recognizance and therefore the Response is filed on behalf of both the Secretary and the Director.  The Director and the Secretary should be treated as the Respondents to the Application.

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 Miss Hui, Acting Senior Government Counsel, appearing for the Respondents.

B.     Background

B1.     Immigration status and stay in HK

6.  The Applicant is a Pakistani national, born on 11 June 1987.

7.  On 22 May 2007, the Applicant first arrived in Hong Kong as a dependent of his ex-wife who is a Hong Kong permanent resident (“HKPR”) with a limit of stay last extended up to 15 April 2016.

8.  On 3 February 2015, the Applicant jumped Police bail and was re-arrested by the Police on 6 March 2015.

9.  On 23 March 2015, the Applicant was convicted of the offence of possession of dangerous drugs and was sentenced to be admitted to Drug Addiction Treatment Centre.

10.  The marriage between the Applicant and his ex-wife was dissolved in February 2016. 

11.  Between 2016 to 2024, the Applicant had twice applied for verification of eligibility for permanent identity card but these were refused by the Immigration Department (“ImmD”).   The appeal against the first application was dismissed by the Registration of Persons Tribunal (“ROPT”) on 21 February 2024 and the appeal against the second application filed on 9 September 2024 is under processing.

12.  On 4 August 2017, the Applicant was convicted of the offence of attempted burglary and was sentenced to 3 years and 3 months’ imprisonment.

13.  On 16 April 2019, a removal order (“RO”) was issued against the Applicant under s.19(1)(b) of IO.

14.  The Applicant failed to report recognizance since 11 November 2019 and also jumped Police bail on 7 September 2020.

15.  On 30 April 2021, the Applicant was convicted of gambling in a gambling establishment and was fined HK$500.

16.  On 12 December 2023, the Applicant was convicted of gambling in a gambling establishment and was fined HK$1,000.  He was re-arrested by Police on the same day for jumping bail.

17.  On 9 August 2024, a deportation order (“DO”) was issued against the Applicant under s.20(1)(a) of IO.  On 28 October 2024, the Applicant applied for leave to apply for judicial review to challenge the DO but this was dismissed by Coleman J on 15 January 2025.

18.  On 5 December 2024, the Applicant was convicted of assault occasioning actual bodily harm and was sentenced to 4 weeks’ imprisonment.

19.  The Applicant again failed to report recognizance since 5 September 2025.  The Applicant was re-arrested by the Police on 13 November 2025.  The Applicant was referred to the ImmD on 14 November 2025 and was detained since then.

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

20.  On 21 January 2025, the Applicant lodged a torture claim which was rejected by the Director on 4 June 2025 (“the Director’s Decision”).

21.  On 9 December 2025, the Applicant’s lodged an appeal/petition against the Director’s Refusal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) late but this was not allowed on 29 December 2025 (“the Board’s Decision”).

22.  On 3 March 2026, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”).

23.  On 13 March 2026, DOJ wrote to the Court of First Instance to request for priority to be accorded to the JR Leave Application in light of the Applicant’s detention and the Application.

B3.     Steps towards the removal of the Applicant

24.  Since 14 November 2025, ImmD has liaised with the Consulate General of the Islamic Republic of Pakistan (“CG”) seeking their assistance in issuing a travel document to the Applicant. 

25.  On 18 December 2025, an emergency travel document (“ETD”) valid until 11 June 2026 was issued by CG to the Applicant.

26.  During the Detention, in all the interviews conducted with the Applicant by the ImmD (on 21 November 2025, 11 December 2025, 16 December 2025, 31 December 2025, 6 January 2026, 7 January 2026, 19 January 2026, 26 January 2026, 6 February 2026, 16 February 2026 and 2 March 2026), the Applicant expressed strong unwillingness to return to his home country and refused to cooperate with the re-entry formalities.

B4.     Reviews of Detention

27.  In the latest review of detention conducted by the Secretary on 16 March 2026 and the Director on 18 March 2026, it was considered that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)     It is believed that with the request for priority to be accorded, the JR Leave Application could be determined within a reasonable period of time and with the ETD issued, the Applicant could be removed within a reasonable period of time if he cooperates;

(2)     The Applicant is the subject of a DO made on the basis of his convictions and given his two absconding records (the longest was four years) and two records of jumping police bail, coupled with his unwillingness to return to Pakistan, there is a real risk of re-offending and/or absconding if he was released; and

(3)     The presence of his HKPR daughter under the care of his ex-wife, the fact that he has a HKPR girlfriend who has been hospitalized since February 2025 due to mental illness and a HKPR daughter and son who are under the care of their maternal grandmother, and his HKPR cousin is willing to be his guarantor, have been taken into consideration but on balance, release on recognizance is not warranted.

C. The Applicant’s Submissions

28.  In the Applicant’s Affirmation, which mainly rehearse legal principles and quotations clearly copied from various other similar applications, but in a jumbled manner, in so far as I can gather the following submissions were made:

(1)     He is awaiting the appeal to the ROPT under ROPT 206/24 for the appeal against the Commissioner of Registration’s refusal to issue a Hong Kong permanent identity card to him and the application for judicial review against the DO issued against him;

(2)     He applied for legal aid for the JR Leave Application on 5 January 2026 because he wanted to seek legal advice;

(3)     He has three children all of them born in Hong Kong and are HKPR and he wishes to take care for his children; and

(4)     His wife will be his guarantor if he is released.

29.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further made the following supplemental submissions:

(1)     The JR Leave Application was filed on time and the grounds are very strong.  The grounds for his NRC are also strong.  He has written to the High Court on 18 March 2025 to request the delay of the determination of the JR Leave Application because he needs to get documents from Pakistan and his application for legal aid is still pending.  He is sure that the JR Leave Application will take a long time to be determined;

(2)      As there are ongoing legal proceedings and as far as he knows a “fresh” or first application for judicial review filed on time is acceptable to ImmD, he should be granted “bail”;

(3)     His wife is in a mental hospital since February 2025 and even though his mother in law is temporarily helping him to look after the children, as he has custody of them he should be granted “bail” so that he can take care of them; and

(4)     He has given the information concerning his guarantor to ImmD.  He can also offer cash surety and is willing to abide by any conditions imposed by ImmD including reporting whenever required.

30.  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

31.  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.

32.  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.

33.  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.

34.  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 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. …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.”

35.  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

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

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

38.  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).

39.  The starting point is that the period of detention to date is 138 days, against which the other factors must be weighed and balanced.

40.  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.  This is evident from the Director’s efforts to seek issuance of a travel document to the Applicant from CG and the numerous interviews with the Applicant in hope that he would express willingness to return to Pakistan.  HS1 is satisfied.

41.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the frequent interviews with the Applicant, active liaison with CG, ImmD writing to the Board to seek priority to the Applicant’s appeal/petition and DOJ writing to the High Court to seek priority to the JR Leave Application.  HS4 is also satisfied.

42.  As held by Coleman J in the decision dismissing the Applicant’s application for leave to apply for judicial review against the DO, the outstanding ROPT appeal is not a legal impediment to his removal (see [2025] HKCFI 265 at §42).  Whilst the JR Leave Application has not been determined which currently constitutes a legal impediment to his removal, if accorded with priority, I am confident that it will be determined within a reasonable period of time and if dismissed, with a valid ETD and if the Applicant cooperates, he can be removed within a reasonable time.  Furthermore, given the serious delay and failure by the Applicant to promptly lodge his NRC (he arrived in Hong Kong in 2007 but only did so in 2025 which was 9 years after he overstayed) and had he done so his NRC could have been determined prior to the commencement of the Detention, any period of detention caused or prolonged by such unreasonable conduct should not be regarded as unreasonable.

43.  I also accept the Secretary’s and Director’s assessments that with his past convictions of offences of a very serious nature which led to the issuance of the DO, coupled with his history of not reporting recognizance and jumping bail and the Applicant’s stated unwillingness to return, and even taking into account his local connections, there is a real risk of the Applicant absconding and re-offending.  If he were to re-offend and/or abscond, 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).

44.  I do not doubt that the Detention would have some effect on the Applicant’s family but given that the Applicant is subject to a valid and extant DO, and he committed various crimes even after his children were born as a result of which he had been sentenced to imprisonment, the Applicant’s family circumstances and his alleged desire to care for his children are of little significance when weighed against the other factors overall (see Hardial Singh, §156).

45.  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.

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

F.     Conclusion

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