ABDUL RAUF HARIS v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2365/2025

[2025] HKCFI 6412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2365 OF 2025

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D E C I S I O N

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A.  Introduction

1.  I have before me an application for writ of habeas corpus filed by the Applicant on 22 October 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he is currently being detained (“the Application”). He has been detained since 12 May 2025 making the period of detention to date is 225 days (“the Detention”).

2.  This is the second application for writ of habeas corpus by the Applicant. The first was filed on 13 June 2025 and was dismissed by me following the hearing on 26 August 2025 (see [2025] HKCFI 3876 (“1^st Decision”)).

3.  On 27 October 2025, I directed the named respondents to the Application inter alia to lodge and serve their response to the Application and the Applicant’s Affirmation filed in support of the Application. “The Respondents’ Response to the Applicant’s Habeas Corpus Application” dated 11 December 2025 (“the Response”) has been lodged on behalf of the Respondents.

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 a bundle of documents prepared by the Department of Justice acting on behalf of the Respondents.

5.  This is my Decision having heard the oral submissions of the Applicant and Miss Tang, Government Counsel, appearing for the Respondents.

B.  Background

6.  In sections B1-B3 of the 1^st Decision (see §§5-26), I had set out the background which shall not be repeated herein. For convenience and ease of reference, I shall adopt the same definitions and abbreviations as the 1^st Decision.

7.  The salient events which occurred after the 1^st Decision are as follows:

(1)  On 4 September 2025, the Applicant applied for an extension of time to appeal against the Court of First Instance’s dismissal of the JR Leave Application which was allowed on 18 September 2025 to the effect that the appeal shall be filed on or before 2 October 2025;

(2)  On 14 November 2025, the Applicant informed ImmD that he has filed the appeal under CACV 824/2005;

(3)  ImmD continued to conducted interviews with the Applicant (on 29 August 2025, 10 September 2025, 29 September 2025, 21 October 2025 and 20 November 2025) but he maintained his unwillingness to return to Pakistan and refused to complete the re-entry application forms, take photos and attend interview with CG. He was informed that his uncooperativeness would prolong his detention and impede his removal;

(4)  ImmD also continued to liaise with CG (by email dated 12 September 2025 and letters dated 13 October 2025 and 4 November 2025) to request confirmation of the Applicant’s re-entry and any possible alternative means to issue a ETD to the Applicant;

(5)  The last review of detention was conducted by the Director on 7 November 2025. Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(a)  The removal of the Applicant is possible within a reasonable time given the Applicant’s application for judicial review in relation to his NRC was refused by the Court of First Instance on 30 July 2025 and under the prevailing policy, irrespective of whether an appeal has been filed to higher courts by unsubstantiated claimants, there is no impediment to his removal;

(b)  During recognizance, the Applicant was convicted of 2 counts of trafficking in dangerous drugs, gambling and attempted theft which are convictions associated with crimes of serious nature and it is assessed that he posed a threat/security risk to the community;

(c)  The Applicant had failed to report recognizance and comply with the terms/conditions of release and may re-offend or abscond if released;

(d)  The Applicant has directly or indirectly prevented or delayed removal by his expressed unwillingness to return since the present detention and his lack of cooperation hindered and impeded his removal; and

(e)  The fact that he has an Indonesia girlfriend with two young children in Hong Kong, who are also non-refoulement claimants on recognizance, has been taken into account but does not outweigh other factors against release stated above.

C.  The Applicant’s Submissions

8.  In the Applicant’s Affirmation, a number of general principles and citations from previous cases were recited (clearly copied from similar applications), but essentially, the following submissions in so far they relate to the Applicant were made:

(1)  Having spent a considerable amount of time in detention, he is aware of the importance of abiding with the law and regulations and undertakes to be law-abiding, not engage in any activities that could jeopardize his release and will report as required by ImmD;

(2)  He is prepared to provide self-surety of HK$4,000 and report once a week; and

(3)  He does not want to go back to Pakistan because his life is in danger and torture and death in police custody are common in Pakistan.

9.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions. He further supplemented that that he has ongoing legal proceedings before the Court of Appeal.

10.  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

11.  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.

12.  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.

13.  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.

14.  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 by 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.”

15.  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

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

17.  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 from Hong Kong. There is no dispute that the RO made against the Applicant is valid and extant.

18.  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).

19.  The starting point is that the period of detention to date is 225 days, against which the other factors must be weighed and balanced.

20.  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 proactive efforts to seek re-entry assistance from CG long before the Detention and the continued liaison with CG to secure an ETD during the Detention. There were also numerous interviews with the Applicant in hope that he would express willingness to return to Pakistan. Therefore HS1 is satisfied.

21.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal. This is evident from the Director’s proactivity to seek an ETD from CG and continued liaison with CG, the regular interviews with the Applicant to seek his co-operation with the re-entry seeking arrangements, and following up with the Court of First Instance following the hearing of the JR Leave Application.

22.  With no legal impediment to the Applicant’s removal and if the Applicant cooperates with the re-entry seeking arrangements, it is reasonable to think an ETD will be issued and his removal can be effected within a reasonable period. Insofar as the Applicant has refused and continues to refuse to cooperate with the re-entry seeking arrangements, and despite warnings that this would prolong his 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.

23.  Furthermore, given the serious delay and failure by the Applicant to promptly take out any NRC-related proceedings (the JR Leave Application was made more than 1 year 9 months out of time against the Board’s Decision) which clearly contributed to the delay in its determination, any period of detention caused or prolonged by such unreasonable conduct should not be regarded as unreasonable. No doubt if the JR Leave Application was promptly taken out, there is a real possibility that they would have been determined prior to the commencement of the Detention and the Applicant removed long ago when it was determined against the Applicant.

24.  I also accept the Director’s assessment that with his past convictions of offences of very serious nature, record of absconding, coupled with the Applicant’s stated unwillingness to return and lack of local ties, there is a real 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 effect 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).

25.  Although the Applicant says that he cannot go back to Pakistan because his life is in danger, 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.

26.  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.

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

F.  Conclusion

28.  By reasons of the above, I dismiss the Application with no order as to costs. Although in the Response, the Respondents have sought costs against the Applicant by relying on the cases of Akram Muhammad v Secretary for Security & Anor [2023] HKCFI 314 and Ali Nazakat v Director of Immigration & Ors [2024] HKCFI 1133, I do not consider that the circumstances of the present case justifies such an order.