HASSAN NASER ABDIRAHMAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 759/2025

[2025] HKCFI 1908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 759 OF 2025

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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 26 March 2025 seeking his release from Tai Tam Gap Correctional Institution (“TTGCI”)  where he is presently being detained (“the Application”). He has been detained since 8 October 2024 making the period of detention to date 213 days (“the Detention”).

2.  On 31 March 2025, I directed the Director of Immigration (“the Director”)  and the Secretary for Security, named as the Respondents in the Application, to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application (“the Affirmation”). 

3.  A Response for the Director dated 28 April 2025 (“the Response”)  has been lodged. In the Response, it stated that the Applicant has been detained under s.32(3A)  of the Immigration Ordinance, Cap. 115 (“IO”)  as authorised by an Assistant Director of Immigration.  I accept, as submitted by Mr Wong, Government Counsel, who appears today representing the Director, that only the Director should properly be the Respondent to the Application.

4.  The Applicant has appeared in person without the benefit of an interpreter as the only freelance Somali interpreter of the Court is unavailable.   By letter dated 29 April 2025, the Court informed the Applicant in advance that no interpreter could be arranged for today’s hearing and he was to confirm whether he could conduct the hearing in English or otherwise provide his own interpreter.  At today’s hearing, the Applicant confirmed that he was speak English and to proceed with today’s hearing as scheduled.  At today’s hearing, the Applicant was able to converse and read documents in English to me.  He also confirmed that he had received the Response and hearing bundles prepared by the Director.

5.  This is my Decision having heard the oral submissions of the Applicant and Mr Wong.

B.   Background

B1.   Immigration status and stay in HK

6.  The Applicant is a Somali national born on 27 May 1990.

7.  On 8 May 2013, the Applicant, being undocumented, presented for arrival clearance at the China Ferry Terminal and was refused permission to land in Hong Kong. 

8.  On 11 July 2013, a removal order (“RO”)  under s.19(1)(b)  of the Ordinance was made against the Applicant.

9.  Whilst released on recognizance, the Applicant was convicted of the following offences:

(1)  On 15 January 2016, the Applicant was convicted of theft and was sentenced to a fine of HK$500 and compensation of HK$15;

(2)  On 13 March 2017, the Applicant was convicted of assaulting a police officer and was sentenced to a fine of HK$480;

(3)  On 25 June 2018, the Applicant was convicted of criminal damage and common assault.  He was sentenced to a fine of HK$500 and compensation of HK$49 for the former conviction and 30 days’ imprisonment suspended for 12 months for the latter conviction;

(4)  On 9 October 2019, the Applicant was convicted of assault occasioning actual bodily harm. He was sentenced to 30 days’ imprisonment and suspended sentence of 10 days’ imprisonment to run consecutively;

(5)  On 4 November 2021, the Applicant was convicted of assault occasioning actual bodily harm and was sentenced to 4 months’ imprisonment; and

(6)  On 25 September 2024, the Applicant was convicted of attempted criminal damage and was sentenced to 3 months’ imprisonment suspended for 3 years upon review of sentence.

10.  Whilst on recognizance, the Applicant had also failed to report to recognizance (on 6 occasions)  and jumped police and court bail (on 2 occasions).

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

11.  The Applicant first lodged a NRC on 4 March 2014.  On 21 February 2018, the Director refused the Applicant’s NRC.  On 5 May 2020, the Applicant’s appeal against the Director’s refusal was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

12.  On 12 April 2022, the Applicant made an out of time application for leave to apply for judicial review against the Board’s decision (“the JR Leave Application”)  which was refused by the Court of First Instance on 1 September 2022 (“the Refusal Decision”). 

13.  On 20 March 2023, the Applicant made an application for extension of time to appeal against the Refusal Decision but this was dismissed on 12 April 2023.

14.  On 9 January 2025, the Applicant made an out of time application to the Court of Appeal for leave to appeal against the Refusal Decision.

 B3.    Steps towards the removal of the Applicant

15.  Prior to the Detention, re-entry seeking has been initiated by the Immigration Department (“ImmD”)  by writing to the Embassy of the Federal Republic of Somalia in Beijing (“the Embassy”)  on 24 July 2013 seeking their assistance to verify the Applicant’s identity and issue a replacement travel document to the Applicant.

16.  On 26 July 2013, the Embassy confirmed the personal particulars provided by the Applicant and that he was a citizen from Somali.  However, during subsequent interviews with the Applicant, both before and after the Detention commenced, he expressed his unwillingness to fill in the application form for a Somali passport or to attend re-entry interviews with the Embassy.  He was reminded that his uncooperativeness would prolong the detention and impede his removal.  He was also reminded that pursuant to s.32(4A)  of IO, his detention shall not be regarded as unlawful if he prevents or delays the removal.

17.  Despite the Applicant’s non-cooperation, ImmD sent emails and chasers to the Embassy seeking their assistance in issuing the Applicant a replacement travel document or alternative means to issue a travel document.  ImmD was informed that for the issuance of an emergency travel document (“ETD”), the Applicant is required to complete re-entry seeking formalities which include: (1)  providing a clear copy of his Somali passport; (2)  recent photos; and (3)  attendance of a phone interview with the Embassy.  Subject to the Applicant’s cooperation in completing the re-entry seeking formalities, it is anticipated an ETD will be issued in around 1 month.

B4.   Reviews of Detention

18.  The last review of detention conducted by the Director was on 3 April 2025.  Having considered and balancing the following factors, it was decided by the Director that the release of the Applicant on recognizance was not warranted:

(1)  The JR Leave Application was refused on 1 September 2022. Under the prevailing removal policy, the removal of unsubstantiated NRC can be proceeded upon the dismissal of his application for leave to apply for judicial review, hence there is no outstanding legal proceedings hindering his removal;

(2)  The Applicant has persistently been uncooperative to complete the necessary re-entry application form and to attend interviews with the Embassy which is a self-inflicted obstacle to his removal;

(3)  Close liaison has been maintained with the Embassy for seeking alternatives to issue travel document for the Applicant’s return regardless of the Applicant’s non-cooperation.  If the Applicant cooperates, an ETD can be issued to the Applicant within 1 month such that removal can be completed within a reasonable period of time;

(4)  The Applicant is a repeated offender and there is a real and substantial risk of him re-offending, and he poses a threat to the community given the previous convictions and sentence imposed by the court;

(5)  There is a real and significant risk of absconding given the Applicant’s absconding record and clear unwillingness to return to his home country; and

(6)  The Applicant’s local family connection, including a wife and daughter who are Hong Kong permanent residents, has been taken into account but such factor does not outweigh the other factors against the release of the Applicant.

C.   The Applicant’s submissions

19.  In the Affirmation, essentially the following submissions were made:

(1)  He claimed that the purpose of the Detention is to deport him but no deportation order (“DO”)  has been made against him;

(2)  His removal is not possible within a reasonable period;

(3)  He is still waiting for the Court of Appeal’s determination of his leave to appeal out of time;

(4)  He has to take care of his daughter who is turning 7 years old; and

(5)  The Detention has caused him emotional and psychological anxiety and stress.

20.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  I gave the Applicant a further opportunity to supplement his submissions even though strictly speaking what he said in court was not on oath and could have been, and ought to have been, contained in the Affirmation in support.  Essentially, he further submitted:

(1)  It was him who had pro-actively contacted ImmD and only one time did ImmD take the initiative to contact him concerning making a re-entry application but he refused;

(2)  He does not dispute that he had failed to report recognizance or jumped court bail but it was either because he had to go to the Government hospital or due to the weather conditions he was not able to do so.  However, he reported recognizance or attended the court subsequently and did not go underground.  Furthermore, given that he has stayed in Hong Kong for over 11 years, the number of times he failed to report recognizance was relatively few.  Now that he knows the seriousness consequences of the failure to report recognizance he would not fail to report again;

(3)  In respect of the previous convictions, he pleaded guilty as advised but did not commit those offences.  Besides, compared to crimes related to drugs and involving the use of weapons, those offences were not as serious.  During his detention, he has never caused any problems with the other detainees.  He further undertake not to commit other crimes in the future and wish to make her daughter proud of him;

(4)  His daughter is 7 years old and he needs to take care of her, as he did when she was first born. The maternal grandmother is unable to take care of his daughter and his wife has dual nationality and goes to Thailand where she has properties;

(5)  It is not easy, nor encouraged, to receive medical treatments at the Government hospital whilst being detained at the TTGCI.   On one occasion, in March 2025 when he had swollen feet, even though the medical officer advised that he seek treatment immediately at the Government hospital, arrangements could only be made for him to go the next day;

(6)  He was also not satisfied with the schedules of meal-taking and the installation of CCTVs at TTCGI; and

(7)  He gave to ImmD the contact address of his wife and mentioned that it was his wife who was his guarantor when he was imprisoned in 2019.

21.  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

22.  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).

23.  I also remind myself that the burden is on the respondent to an application for writ of habeas corpus to justify the lawfulness of the applicant’s detention.

24.  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.

25.  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(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

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

27.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A)  of IO.  There is no dispute that the RO is valid and extant.  Whilst no DO is issued against the Applicant, under s.32(3A), given a removal order is in force against him, he may be detained pending his removal.

28.  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 Director must intend to deport (or in this case, remove)  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 Director will not be able to effect deportation (or in this case, removal)  within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

(4)  The Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

29.  The starting point is that the period of detention to date is 213 days, against which the other factors must be weighed and balanced.

30.  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.  This is evident from the Director’s efforts in seeking travel documents for the Applicant even before the Detention.  Therefore HS1 is satisfied.

31.  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 travel documents, continued liaison with Embassy to secure the return of the Applicant to Somalia by alternative means if necessary, and interviews with the Applicant to complete the necessary re-entry seeking formalities.  HS4 is also satisfied.

32.  Given that the NRC has been determined and the JR Leave Application dismissed, such that there is no legal impediment for the Applicant’s removal, it is reasonable to think that deportation can be effected within a reasonable period if the Applicant cooperates.   Any unreasonable behavior which prolongs detention will not be regarded as an unreasonable period of detention.

33.  I accept the Director’s assessment that with the Applicant’s history of offences and absconding record whilst on recognizance, coupled with the Applicant’s stated unwillingness to return to Somalia, there is a real risk of the Applicant absconding and/or re-offending.  If he were to re-offend, the potential gravity will not be a low one given the nature of the offences he had previously committed.   If he were to abscond, 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.

34.  Although the Applicant claims he has a wife and daughter in Hong Kong, and he needs to take care of his daughter, most recently, on 1 April 2025, the Applicant informed ImmD that his wife and daughter were in Thailand and he has not contacted them for 4 months.   

35.  In relation to the Applicant’s claimed physical and mental 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: 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.   The Applicant confirmed that, albeit not immediately as advised by the medical officer, he did previously receive treatment at the Government hospital and currently, he is not suffering from any physical illness or condition that requires medical attention.

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

F.   Conclusion

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