HAYAT SIKANDAR v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 412/2025

[2025] HKCFI 1085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 412 OF 2025

_____________

_____________

____________________

D E C I S I O N

____________________

A.  Introduction

1.  I have before me an application for writ of habeas corpus by the Applicant filed on 13 February 2025 seeking his release from Tai Tam Gap Correctional Institution where he has been detained since 25 October 2024 (“the Application”).  The period of detention to date is 140 days.

2.  On 17 February 2025, I directed the Respondents (“Rs”) inter alia to lodge and serve their response to the Application, which they have done so by way of a Response/Skeleton Submissions for the Respondents dated 6 March 2025 (“Rs’ Submissions”).  The Security Bureau has been named as the 2^nd Respondent and Rs’ Submissions were filed on behalf of the 1^st Respondent, the Director of Immigration (“the Director”) as well as the 2^nd Respondent.  However, since the Applicant is currently detained under s.32(3A) of the Immigration Ordinance, Cap 115 (“IO”) as authorized by an Assistant Director of Immigration, only the Director should properly be the Respondent to the Application.    

3.  At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.  Rs are represented by Ms Lam, Government Counsel.

4.  This is my Decision.   

B.  Background

B1.  Immigration status and stay in HK

5.  The Applicant is a Pakistani national born on 25 December 1989.

6.  On 25 April 2019, the Applicant surrendered to the Immigration Department (“ImmD”) for illegal remaining.  He claimed to have entered Hong Kong illegally from the Mainland on 21 April 2019 and that his Pakistani passport was lost.  He produced a copy of his Pakistani passport as proof of identity.  Upon record check, it was revealed that he had no arrival movement record.

7.  On 15 May 2019, the Applicant was released on recognizance.

8.  On 9 August 2019, a removal order (“RO”) was made against the Applicant. 

9.  The Applicant had previously failed to report recognizance on 3 occasions on 13 November 2019, 19 August 2020 and 13 October 2021 respectively.

10.  Furthermore, whilst on recognizance, the Applicant was arrested for the offence of robbery on 25 August 2022 and was convicted of the same on 5 January 2024.  He was sentenced to 39 months’ imprisonment on 23 January 2024.

11.  Since being discharged from prison on 25 October 2024, the Applicant has been held in immigration detention until present (“the Present Detention”).

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

12.  The Applicant first lodged his NRC on 15 May 2019.

13.  On 27 November 2019, the Director rejected the Applicant’s NRC.

14.  On 3 December 2019, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) received the Applicant’s Notice of Appeal/Petition (“the Appeal”).

15.  On 17 November 2020, the Appeal was dismissed by the Board.

16.  On 1 December 2020, the Applicant applied for leave to apply for judicial review against the Board’s decision (“the JR”).  Upon the Director’s request for priority to deal with the JR, on 25 February 2025, the JR was heard by DHCJ R Lai (“the Judge”). 

17.  The Applicant applied for legal aid and a memorandum was issued under s.15(4) of the Legal Aid Ordinance, Cap 91 on 26 February 2025.  The Judge has directed that the JR shall be determined after the statutory legal aid stay expires on 9 April 2025 or the determination of the legal aid application or order of the court uplifting the statutory stay, whichever the earlier.

18.  If the JR is determined against the Applicant, that will remove any legal impediment to the Applicant’s removal from Hong Kong as a result of the updated removal policy of the Director which took effect from 7 December 2022: see LC Paper No CB(2) 968/2022(02), “Legislative Council Panel on Security Enhancing the Handling of Non-refoulement Claims”, §§15-16.

B3.     Steps towards the removal of the Applicant

19.  Even prior to the Present Detention, ImmD informed the Consulate General of the Islamic Republic of Pakistan (“CG”) inter alia of the Applicant’s criminal conviction and requested their assistance in issuing the necessary travel document for his home passage and to confirm his re-entry to Pakistan.

20.  Shortly after the commencement of the Present Detention on 31 October 2024, and thereafter on 9 December 2024 and 8 January 2025 respectively, in interviews conducted by ImmD, the Applicant indicated his refusal to return to Pakistan and his refusal to cooperate with any repatriation formalities.  He was reminded that his uncooperativeness would eventually prolong his detention and impede his removal.

21.  On 24 January 2025, ImmD sent a chaser letter to CG seeking alternative means to issue to the Applicant a travel document despite his uncooperative attitude.  For the issuance of emergency travel documents (“ETD”), the Applicant is required to complete the re-entry seeking formalities which include: (a) a completed re-entry application form; (b) a recent passport photo; (c) consent for release of information; and (d) attendance of interview with CG in person.  Subject to compliance with the aforesaid, it is anticipated that the ETD would be issued within 2 to 3 weeks.

22.  Subsequent to the Application being filed, the Applicant had maintained in further interviews that he would not cooperate with the re-entry seeking formalities.

B4.     Reviews of Detention

23.  The last review of detention was conducted on 24 January 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 Applicant has a JR leave application and it is believed that its hearing could be finalized in the foreseeable future;

(2)  Liaison with CG was closely maintained for seeking alternative means to issue a ETD and should the Applicant be cooperative a ETD would be issued within a reasonable time;

(3)  The Applicant’s criminal conviction of robbery was of serious nature.  He posed a threat to the local community;

(4)  The Applicant demonstrated strong unwillingness to return to his home country.  There is a risk of absconding and/or re-offending; and

(5)  Despite the request for release on recognizance and the Applicant had provided a Hong Kong Permanent Resident as a guarantor, the factors could not outweigh those factors against the release of the Applicant.

C.  The Applicant’s submissions

24.  In the Applicant’s Affirmation filed in support of the Application, the following submissions were made:

(1)  The JR is a legal impediment to his removal and it is not possible to remove him within a reasonable period;

(2)  He has established local connections including family friends who are Hong Kong residents and willing to support him;

(3)  He can provide a guarantor and offer self-surety in the sum of HK$4,000; and

(4)  Returning to his home country poses a significant risk to his life.

25.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further supplemented that his previous mistakes had consequences for which he had already served his sentence.  According to him, he returned the proceeds of the robbery to the police, he pleaded guilty and had a 40% discount to his sentence.  He says that has reflected on his behavior whilst in detention and will do better.  He heard of other cases in the District Court for serious crimes with long list of previous convictions who were granted bail.

26.  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

27.  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.

28.  I 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.

29.  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.

30.  Moreover, the Court of Appeal recently provided guidance in Johnson Benjamin v Director of Immigration [2023] HKCA 1368 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 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 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.”

31.  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

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

33.  During the Present Detention, the Applicant is and has been detained pursuant to 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, the Deputy Director of Immigration or any assistant director of immigration pending his removal. 

34.  There can be no dispute that the RO made against the Applicant is valid and extant.  It therefore follows that there is and has been prima facie authority to detain the Applicant.

35.  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 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 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).

36.  The starting point is that the period of detention to date is 140 days, against which the other factors must be weighed and balanced.

37.  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 in seeking a ETD for the Applicant even before the Present Detention.  Therefore HS1 is satisfied.

38.  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 a ETD as already mentioned and continued liaison with CG to secure the return of the Applicant to Pakistan once there is no legal impediment to his return.  This is also evident from the Director’s request to the court for priority to determine the JR.  HS4 is also satisfied.

39.  The JR has been heard and it is reasonable to think that it will be determined within a reasonable period of time given the directions of Judge.  Furthermore, any period of time taken for the JR to be determined due to the Applicant’s late application for legal aid (over 4 years after the application for JR was made) should not be regarded as an unreasonable period. 

40.  In so far as the Applicant has refused and continues to refuse to cooperate with the re-entry formalities, despite warnings that this would prolong his detention, and in the absence of any circumstances to find that he acted reasonably to do so, that prolonged period of detention should not be regarded as unreasonable or turn an otherwise lawful detention into an unlawful one.

41.  Furthermore, given the serious nature of his past conviction, I accept that there is a real risk of re-offending.  In the Reasons for Sentence dated 23 January 2024, Deputy District Judge Francis Cheng enhanced the Applicant’s sentence by 3 months considering that the armed robbery committed by the Applicant “falls into the category of offence which affects the community at large and have a significant impact on Hong Kong’s reputation for order and security”.  I also note that the offence was committed whilst the Applicant was on recognizance evidencing that he is prepared to breach the terms of his release.  I would therefore accept the Director’s assessment that with this history, the risk of re-offending and him posing a threat to society is not low.  This is so even after taking into account the submissions made to me by the Applicant that he has reflected on his past and will do better.  If the risk were to eventuate, the magnitude and impact could be serious.

42.  From the Applicant’s stated unwillingness to return and steadfast refusal to cooperate with the re-entry formalities, I also accept that there is a real risk of the Applicant absconding.  If he were to abscond, that would defeat the primary purpose for which the power to detain has been conferred. Even though he has stated that he has family friends in Hong Kong, he does not have any family here.  I do not accept that the Applicant has established local ties and connections.

43.  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.  As regards the Applicant’s fears of his own safely if he was repatriated, as has been stated and repeated in many previous decisions, an application for writ of habeas corpus is not an opportunity to continue to assert his fears underpinning his NRC and the court in an application for habeas corpus will not look into the merits of such claim.

45.  I do not believe that the Applicant’s offer of self-surety or guarantor 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.