MOHSIN KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1496/2025

[2025] HKCFI 3543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1496 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 by the Applicant filed on 30 June 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he has been detained since 12 January 2024 (“the Application”). The period of detention to date is 575 days (“the Detention”).

2.  On 4 July 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 in support of the Application. An “Initial Response for the Interested Party” dated 22 July 2025 (“the Response”) has been lodged.

3.  In the Response, it was stated that it was wrong for the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) to be named as the Putative Respondent as the Applicant has never been detained by the Board. Rather, the proper respondents to the Applicant should be the Director of Immigration (“the Director”) and the Secretary for Security (“the Secretary”) as they exercised the relevant statutory powers relating to the detention of the Applicant. In the Board’s letter to this court dated 17 July 2025, it was stated inter alia that they have never been involved in the decision to detain the Applicant which is a matter for the Director. Upon receipt of the Board’s letter, I excused the attendance of the Board from attending today’s hearing. I agree that the proper respondents to the Application should be the Director and the Secretary (collectively, “the Respondents”) and they should be taken 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 a bundle of documents prepared by the Department of Justice on behalf of the Respondents.

5.  This is my Decision having heard the oral submissions of the Applicant and Mr Tong, Government Counsel, appearing for the Director and the Secretary.

B.  Background

B1.  Immigration status and stay in HK

6.  The Applicant is a Pakistani national, born in 1988.

7.  On 7 March 2009, the Applicant was arrested by the Police for being an illegal immigrant. He claimed that he had entered Hong Kong illegally on the same day. He was referred to the Immigration Department (“ImmD”) on 9 March 2009.

8.  On 30 April 2009, the Applicant was released on recognizance.

9.  On 6 January 2014, the Applicant was convicted of the offences: (a) taking employment while being a person who remains in Hong Kong without the authority of the Director after having landed in Hong Kong unlawfully; (b) misleading a member of the Immigration Service by making a false declaration; and (c) using an identity card relating to another person. He was sentenced to a total of 17 months’ imprisonment.

10.  On 11 December 2014, the Applicant was discharged from prison and referred to ImmD for detention. He was released on recognizance on 15 January 2015.

11.  On 29 December 2014, a removal order (“RO”) was issued against the Applicant under s. 19(1)(b) of the Immigration Ordinance, Cap.115 (“IO”).

12.  On 10 November 2021, a deportation order (“DO”) was issued against the Applicant under s. 20(1)(a) of IO.

13.  On 12 January 2024, the Applicant’s recognizance was ceased and he was thereafter detained.

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

14.  The Applicant first lodged a torture claim on 10 March 2009. The Applicant’s NRC which covered his torture claim was rejected by the Director on 15 May 2015 (“the Director’s Decision”).

15.  On 28 May 2015, the Applicant appealed against the Director’s Decision to the Board.

16.  On 5 December 2016, the Director further rejected the Applicant’s NRC based on Article 2 of the Hong Kong Bill of Rights.

17.  On 13 July 2018, the Board dismissed the Applicant’s appeal against the Director’s Decision (“the Board’s Decision”).

18.  On 25 July 2018, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision but this was dismissed by the Court of First Instance on 30 April 2021 (“CFI Decision”).

19.  On 7 March 2024, the Applicant applied for extension of time to appeal against the CFI Decision but this was dismissed on 9 April 2024.

20.  On 13 May 2024, the Applicant took out a summons for leave to appeal out of time against the CFI Decision to the Court of Appeal but this was dismissed on 9 January 2025.

21.  On 13 May 2025, the Applicant filed a Notice of Motion for leave to appeal to the Court of Final Appeal.

B3.  Steps towards the removal of the Applicant

22.  Even prior to the Detention, the Director had written to the Consulate General of the Islamic Republic of Pakistan (“CG”) regarding the repatriation of the Applicant and the Applicant was interviewed by CG on 15 June 2023.

23.  On 12 January 2024, in written submissions, the Applicant indicated that he was willing to return to Pakistan and his intention to withdraw his NRC and related legal proceedings.

24.  On 19 January 2024, ImmD sent a letter to CG requesting issuance of a replacement travel document as soon as possible.

25.  When interviewed by ImmD on 5 February 2024, the Applicant continued to express willingness to return to Pakistan.

26.  By written representation dated 5 February 2024, received by ImmD on 7 February 2024, the Applicant first indicated his unwillingness to return to Pakistan stating that his life would be threatened if he returned.

27.  In interviews on 19 February 2024 and subsequent interviews by ImmD thereafter (on 7 March 2024, 18 March 2024, 23 April 2024, 6 May 2024, 24 May 2024, 27 May 2024, 25 June 2024, 16 July 2024, 26 August 2024, 29 August 2024, 27 September 2024, 3 October 2024, 29 October 2024, 13 November 2024, 22 November 2024, 28 November 2024, 13 December 2024, 6 January 2025, 10 January 2025, 14 January 2025, 23 January 2025, 17 February 2025, 5 March 2025, 11 March 2025, 25 March 2025, 10 April 2025, 28 April 2025, 7 May 2025, 12 June 2025 and 19 June 2025), the Applicant maintained his unwillingness to return to Pakistan. He was informed that his uncooperativeness would impede the repatriation progress

28.  On 7 March 2024, ImmD submitted the re-entry application documents to CG.

29.  On 17 April 2024, ImmD had a meeting with the representatives of CG for case update and it was revealed that the case was under active processing by CG.

30.  On 2 May 2024, CG issued an emergency travel document (“ETD”) to the Applicant with validity until 2 June 2024. (The validity of the ETD was subsequently extended 4 times with the last one being extended to 29 August 2025.)

31.  ImmD arranged funding for procurement of air tickets and repatriation flights were scheduled on 4 occasions (27 May 2024, 29 August 2024, 13 December 2024 and 10 April 2025) but each time when the Applicant was interviewed and informed of the removal arrangement scheduled for that day, the Applicant became emotional (such as shouted loudly and uttered offences at the officers), resisted co-operation with the removal arrangement (by refusing to leave the cell to proceed to the airport) and ultimately, taking safety and security into consideration, the removal operation was called off.

32.  On 8 July 2025, ImmD scheduled a repatriation flight for the Applicant on 12 August 2025.

B4.  Reviews of Detention

33.  The last review of detention conducted by the Secretary was on 21 May 2025. Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  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 April 2021 and further proceedings to the higher courts by unsubstantiated claimants do not impede removal under the prevailing removal policy;

(2)  The Applicant was convicted of 3 offences in 2014 which are convictions associated with crimes of serious nature, had failed to comply with terms of recognizance and posed a security risk to the community, may re-offend or abscond if released;

(3)  The Applicant has directly or indirectly prevented or delayed removal by his expressed unwillingness to return since 19 February 2024 and refusal to cooperate with the four deportation arrangements made on 27 May 2024, 29 August 2024, 13 December 2024 and 10 April 2025; and

(4)  The fact that he has a Hong Kong permanent resident friend willing to be his guarantor has been taken into account but does not outweigh other facts against release stated above.

C.  The Applicant’s Submissions

34.  In the Applicant’s Affirmation, whilst he cited numerous purported legal propositions, including those not relevant to the present application for habeas corpus, the submissions that were directly relevant and concerned him were as follows:

(1)  The Director cannot say when he can be removed and he has a pending Notice of Motion for leave to appeal to the Court of Final Appeal in relation to his JR for which there is no decision yet. Even if his appeal is dismissed, he can further appeal and may make a subsequent claim. His removal is not possible within a reasonable period;

(2)  He is not being detained for the purpose of deportation;

(3)  He has never committed any crime of serious nature in Hong Kong and will give an undertaking not to commit any offence or illegal activities and therefore will not pose a security risk or threat to the community;

(4)  He has a friend who is Hong Kong permanent resident willing to stand as his surety and he will live in a fixed place of abode with his friend;

(5)  He is willing to report recognizance and comply with any conditions as the Director thinks appropriate; and

(6)  He suffers from emotional and psychological trauma from being unlawfully detained.

35.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate and complete summary of his submissions. He told me that there were no other submissions that he wish to make in support of the Application.

36.  I will take these submissions into account, and give them the weight in the balancing exercise as seems to me to be appropriate.

D.  Applicable Principles

37.  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.

38.  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.

39.  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.

40.  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.”

41.  Furthermore, at §37, it was held that even if there is an 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

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

43.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s. 32(3) of IO which provides that in respect of a person whom a deportation order is in force, he may be detained under the authority of the Secretary pending his removal. There can be no dispute that the DO made against the Applicant is valid and extant.

44.  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).

45.  The starting point is that the period of detention to date is 575 days, which no doubt is a long period of detention, but against which the other factors must be weighed and balanced.

46.  I accept that the Applicant has been detained for the purpose of his deportation 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 the ETD and its renewal during the Detention. There were also numerous interviews with the Applicant in the hope that he would express willingness to return to Pakistan and there has been 4 repatriation attempts to repatriate him. Therefore HS1 is satisfied.

47.  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 the ETD from CG, the regular interviews with the Applicant to seek his co-operation and the repatriation arrangements made by ImmD.

48.  With no legal impediment to the Applicant’s removal since April 2021 and if the Applicant cooperates with the repatriation arrangements (next scheduled for 12 August 2025) with a valid ETD for the Applicant already secured, there is no reason to believe that his removal cannot be effected within a reasonable period. In so far as the Applicant has refused and continues to refuse to cooperate with the repatriation 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.

49.  In so far as the Applicant submits that he is awaiting the result of his Notice of Motion to the Court of Final Appeal, as mentioned, this is not a legal impediment to his removal. Furthermore, it should be noted that after the CFI Decision in April 2021, no steps were taken to further appeal against the CFI Decision until March 2024. Had he pursued his appeal against the CFI Decision promptly, an extension of time would not have been required and the consideration of his application for judicial review by the appellate courts might well have taken place before the Detention. See Johnson Benjamin, §§25-26 and 29(1).

50.  Whilst the Applicant submitted that he may make a subsequent claim or further appeal, from the further documents shown to me by Mr Tong at today’s hearing, although the Applicant had submitted a request to make a subsequent claim to the Director by letters dated 14 July 2025, 16 July 2025 and 31 July 2025, this was rejected by the Director by letter dated 6 August 2025. Although the Applicant says that he cannot go back to Pakistan as his life is in danger because his enemies have killed his brother and uncle, 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 of habeas corpus will not look at the merits of such claim. Furthermore, any detention prolonged by the unreasonable conduct of the Applicant in not making any claims and appeal promptly should not be regarded as unreasonable detention.

51.  I also accept the Secretary’s assessment that with his past conviction of offences (which having regard to the sentence imposed cannot be said to be not serious as submitted by the Applicant), coupled with the Applicant’s stated and demonstrated 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, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO and 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).

52.  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. In the Response, it was submitted that according to ImmD’s record, the Applicant did once raise by written submissions dated 2 December 2024 that due to the long period of detention he suffered from mental and physical illness. The matter was then forwarded to TGCI for follow-up and no further health issue was raised by the Applicant until the present Application.

53.  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.

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

F.  Conclusion

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