SHAHID MOHAMMAD SULEMAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 905/2026

[2026] HKCFI 5537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 905 OF 2026

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 4 July 2025 and 19 August 2026.  He has been held in immigration detention since 30 May 2025 under various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, he has been detained for 488 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus made on 12 May 2026.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Ms Karen Ngai, Senior Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.  Background

2.1  The Applicant is a Pakistani national.  He arrived in Hong Kong on 9 May 2015 on the strength of his Pakistani passport as a dependant of his father who is a permanent resident.  He was granted extension of stay as a dependant, last extended till 9 May 2022.  His passport expired on 31 January 2023.

2.2  The Applicant has two criminal records:

(1)  On 20 December 2021, he was convicted of “Rape” and was sentenced to 5 years and 6 months’ imprisonment;

(2)  On 27 January 2022, he was convicted “Possession of a dangerous drug” and was sentenced to 2 weeks’ imprisonment which was ordered to run consecutively with the sentence of “Rape”.

2.3  The Applicant’s application for leave to appeal against the conviction of “Rape” was dismissed by a single appeal judge on 12 December 2023 (CACC 30/2022).  The Applicant has so far not renewed his application to the full Court of Appeal. 

2.4  On 30 May 2025, the Applicant was discharged from prison, upon which the present detention commenced.

2.5  During the present detention:

(1)  On 16 September 2025, the Applicant sought to appeal against the cancellation of his Hong Kong identity card.  On 13 November 2025, the Immigration Department interviewed the Applicant in person to consider his application for a Hong Kong permanent identity card (“HKPIC Application”), which application was refused on the same day on the grounds that there was insufficient evidence to show that the Applicant has the right of abode in Hong Kong;

(2)  On 3 February 2026, the Applicant lodge his non-refoulement claim (“NRC”).

2.6  The Applicant’s parents and two sisters are all Hong Kong residents.

3.  NRC and related proceedings

3.1  The Applicant’s NRC was rejected by the Director on 19 May 2026 and his subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 20 July 2026 (“TCAB Decision”).

3.2  On 18 September 2026, the Applicant applied for leave to apply for judicial review against the TCAB Decision by way of HCAL 1617/2026 (“JR Leave Application”). 

3.3  On 21 September 2026, the Department of Justice requested the Court of First Instance to accord priority to the JR Leave Application.

4.  The present detention and its reviews

4.1  The present detention was and is authorized pursuant to the following sections of the Ordinance:

(1)  From 30 May to 3 July 2025, section 32(2A) pending decision as to whether a removal order should be made;

(2)  From 4 July 2025 to 3 February 2026, section 32(3A) pending removal under the Removal Order;

(3)  From 3 February to 20 July 2026, section 37ZK pending final determination of the Applicant’s torture claim;

(4)  From 20 to 27 July 2026, section 32(3A) pending removal under the Removal Order;

(5)  From 28 July to 19 August 2026, section 29 for inquiry as to whether the Applicant should be deported;

(6)  From 19 August to 29 September 2026, section 32(3) pending removal under the Deportation Order.

4.2  As the Applicant’s passport had expired in January 2023, even prior to the commencement of the present detention, the Immigration Department had contacted the Consulate General of Pakistan (“CG”) for the purpose of issuing a replacement travel document to the Applicant.

4.3  Throughout the present detention, at interviews conducted on 20 June, 7 November, 5 December 2025, 4 May, 3 June, 13 July, 23 July, 27 August, 18 September and 22 September 2026, the Applicant has persistently indicated his unwillingness to return to his home country and refused to cooperate in completing the re-entry formalities.  As early as on 17 December 2025, the Immigration Department had arranged to the Applicant to be interviewed by CG at the detention centre, but the Applicant refused to attend the interview.

4.4  In the latest review of the present detention conducted on 22 September 2026 and interpreted to the Applicant on 28 September 2026 (which the Applicant refused to acknowledge by signing the Notice of Review of Detention), the Applicant’s continued detention was considered to be appropriate by reason of the following broad grounds:

(1)  There was no sufficient reason to believe that the JR Leave Application could not be finalized within a reasonable period of time;

(2)  The Applicant posed, or was likely to pose a threat of security risk to the community;

(3)  The Applicant might (re)offend or abscond;

(4)  The Applicant had directly or indirectly prevented or delayed his removal by refusing to cooperate in completing the reentry formalities;

(5)  The Applicant’s health conditions and family connection in Hong Kong had been taken into account but those factors did not outweigh the other factors which were in support of the Applicant’s continued detention.

5.  The Applicant’s submissions

5.1  The grounds set out in the Applicant’s written materials may be summarized as follows:

(1)  He is remorseful for his past misdeeds;

(2)  He has not committed any crimes associated with violence;

(3)  He intends to appeal his conviction for “Rape” as the sexual intercourse was consensual;

(4)  His family members are all Hong Kong residents and are willing to act his guarantors;

(5)  His mother underwent heart surgery in 2025 and he is the only son who can take care of his elderly parents;

(6)  He himself is suffering from health problems such as chest pain, high blood pressure and kidney pain, which conditions are exacerbated by the lack of proper food at the detention centre.  He also suffers from back pain;

(7)  He is also suffering from depression and anxiety for being unlawfully detained;

(8)  He wishes to reunite with his family and take care of his parents and he promises to remain on good behaviour if released;

(9)  The JR Leave Application remains extant, and even were the result against him, he has further appeal avenues;

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

(11)  He also promises to abide by recognizance conditions imposed, including reporting conditions.

5.2  At the hearing, the Applicant confirmed the accuracy of the above summary.  He supplemented as follows.  First, he intends to commence court proceedings to challenge (1) the Deportation Order, (2) the Removal Order and (3) the refusal of his HKPID Application.  Secondly, he explains that he has not progressed the criminal appeal as he has been kept in detention.  Thirdly, he emphasizes that he had never failed to report bail or recognizance.  Fourthly, he points out that the medical treatment provided at the detention centre is subpar, and his anxiety is causing him sleepless nights.  Fifthly, he says that were the Immigration Department able to guarantee his safety and his mother’s well-being, he is willing to return to his home country.

5.3  I also record that the Applicant’s family members attended court and have written two letter on his behalf, urging the court to release the Applicant and confirming their willingness to act as his guarantors.

6.  The applicable principles

6.1  The 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.

6.2  I 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.

6.3  Under 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.

6.4  The 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.”

6.5  In 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

7.1  During the present detention, the Applicant is and has been detained pursuant to identified sections of the Ordinance.  It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2  The 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 488 days, against which the various other factors must be weighed and balanced.  I acknowledge that the period is objectively lengthy.

7.3  As 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.

7.4  I accept that, throughout the period of detention, the intention of the Director/Secretary 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/Secretary have acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  The foregoing is amply demonstrated by the efforts made for a replacement travel document to be issued (despite the Applicant’s refusal to cooperate) and the efforts made to expedite the resolution of the JR Leave Proceedings.

7.5  As at the commencement of the present detention, there was no legal impediment to the Applicant’s removal.  A legal impediment was afterwards created by the commencement of the NRC and then subsequently by commencement of the JR Leave Application.  In relation to the former, the Applicant’s NRC was swiftly resolved by the Director and his subsequent appeal/petition was also expeditiously resolved by the TCAB Decision.  Although by reason of the Updated Removal Policy, the commencement of the JR Leave Application does give rise to a legal impediment, the Court of First Instance has been requested to afford priority to it.  I agree with the assessment of the Director/Secretary that there is no sufficient reason to believe that the JR Leave Application could not be finalized within a reasonable period of time.  In this regard, the Applicant complains that he was not released following the commencement of his NRC.  In my view, the Applicant’s complaint is misplaced as there can be no entrenched expectation that a detainee will be released as long as he commences a NRC and each case must depend on its own facts.  In the present case, one must not lose sight of the fact that the present detention commenced after the Applicant had served his term of imprisonment for his convictions of serious crimes, and the NRC was only commenced after the commencement of the present detention.

7.6  Importantly, contemporaneous with the legal impediment, a practical impediment existed throughout due to the Applicant’s refusal to cooperate in completing the reentry formalities.  As already noted at §6.5 above, even if there is an ongoing refoulement claim, it is not reasonable for the Applicant to refuse to render cooperation to obtain the necessary travel document to facilitate his remove the legal impediment is removed.

7.7  As regards the Applicant’s various intended court proceedings to challenge the Deportation Order, the Removal Order and the refusal of the HKPIC Application, the fact remains that such proceedings have not been commenced.  Where the Applicant’s previous application for leave to appeal the conviction of “Rape” (made whilst was imprisoned) was already dismissed by a single judge in December 2023, I do not accept that the lack of progress of the criminal appeal can be attributed to the present detention.  In any event, any challenge to the refusal of the HKPIC Application and his criminal conviction may be pursued even were the Applicant returned to his home country.

7.8  Given the nature of the Applicant’s previous convictions, I accept the Respondents’ submissions that the Applicant does pose a threat or security risk to the community.  Although the application for leave to appeal against the “Rape” conviction had already failed before a single judge (and he has so far not renewed his leave application before the full court), his continued claim of innocence casts doubt on his professed remorse.

7.9  I also accept the Respondents’ submissions that weight should be given to the assessment of the risk of the Applicant absconding given his professed unwillingness to return to his home country and the assessment that his local connection does not outweigh the factor against his release.  I emphasize that I have taken into account the presence of the family members in court and their willingness to act as the Applicant’s guarantors.  The letters are heartfelt but they do not affect the foregoing conclusion that the Applicant presents a flight risk.

7.10  In relation to the Applicant's claimed health conditions (whether physical or mental), there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained.  In any event, the Applicant's medical condition does not have the effect of altering his continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.11  I also do not place weight on the Applicant’s request for the Immigration Department to guarantee his safety in his home country and his mother’s well-being in Hong Kong as conditions for his return to his home country.  There is no legal basis to justify the Applicant’s position.

7.12  Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.  Conclusion

8.1  By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention (at least until the time when JR Leave Application is resolved) has been and will remain lawful.

8.2  I therefore dismiss the present application with no order as to costs.