AKRAM MOHAMMAD v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1315/2025

[2025] HKCFI 3534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1315 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 10 June 2025 seeking his release from Castle Peak Bay Immigration Centre (“CIC”) where he has been detained since 22 May 2024 (“the Application”).  The period of detention to date is 443 days (“the Detention”).

2.  On 12 June 2025, I directed the Respondents (“Rs”) inter alia to lodge and serve their response to the Application and the Applicant’s Affirmation in support of the Application, which they have done so by way of an Initial Response of the Respondent dated 22 July 2025 (“the Response”).   In the Response, it is stated that since the Applicant’s detention under s. 32(3A) of the Immigration Ordinance, Cap. 115 (“IO”) is authorised by the Director of Immigration (“the Director”) who also decides if the Applicant should be released on recognizance under s. 36(1) of IO, the proper respondent to the Applicant should only be the Director and the Response is prepared and submitted on behalf of the Director.

3.  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 on behalf of the Director.

4.  This is my Decision having heard the oral submissions of the Applicant and Miss Wong, Government Counsel, appearing for the Director.

B.  Background

B1.  Immigration status and stay in HK

5.  The Applicant is a Pakistani national born on 12 June 1980.

6.  He arrived in Hong Kong on 10 July 2001 and was permitted to remain as a visitor until 17 July 2001.   He did not depart and overstayed since 18 July 2001.

7.  On 24 March 2008, the Applicant was arrested by the Police for being a suspected overstayer and was referred to the Immigration Department (“ImmD”) on 27 March 2008.

8.  On 27 April 2008, the Applicant was released on recognizance.

9.  On 16 April 2012, a removal order (“RO”) was issued against the Applicant under s. 19(1)(b) of IO. 

10.  The Applicant had previously failed to report recognizance on 3 occasions:

(1)  He failed to report recognizance on 20 May 2009 and was re-arrested by the Police on 30 October 2010;

(2)  He failed to report recognizance on 26 January 2015 and was re-arrested by the Police on 3 April 2015; and

(3)  He failed to report recognizance on 11 August 2016 and was re-arrested by the police on 29 April 2020.

11.  The Applicant’s recognizance was ceased on 22 May 2024 and thereafter has been detained at CIC.

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

12.  The Applicant first lodged a torture claim on 4 April 2008.  His NRC was assessed under the unified screening mechanism and was rejected by the Director on 23 June 2014 (“the Director’s Decision”).

13.  On 4 July 2014, the Applicant appealed against the Director’s Decision but this was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 22 January 2015 (“the Board’s Decision”).

14.  On 22 October 2015, the Applicant applied for leave to apply for judicial review against the Director’s Decision (“the 1^st JR”).

15.  On 2 June 2016, the 1^st JR was refused by the Court of First Instance (“the CFI Decision”).

16.  On 23 June 2016, the Applicant took out an application for extension of time to appeal against the CFI Decision but this was dismissed on 10 August 2016.

17.  On 14 December 2016, the Applicant was invited to submit additional facts, if any, on his NRC on all applicable grounds including Article 2 of the Hong Kong Bill of Rights (“BOR2”).  By a Notice of Further Decision dated 4 January 2017, the Director rejected the Applicant’s NRC under BOR2 (“BOR2 Decision”).

18.  On 1 June 2020, the Applicant filed an application for leave to judicial review against the BOR2 Decision but this was dismissed by the Court of First Instance on 4 March 2021 (“2^nd CFI Decision”).

19.  On 17 March 2021, the Applicant filed a Notice of Appeal against the 2^nd CFI Decision.

B3.  Steps towards the removal of the Applicant

20.  Even prior to the Detention, as early as June 2014, the Director began to seek re-entry assistance from the Consulate General of Pakistan (“CG”).

21.  The Applicant was interviewed on 22 May 2024 when recognizance was ceased but indicated his unwillingness to complete the application form for re-entry seeking.  His unwillingness to return to Pakistan and to cooperate with the re-entry application formality (including filling out the application form, taking photos and attend interview with CG) was maintained in the 13 interviews conducted with the Applicant during the Detention.  He was informed that his uncooperativeness would eventually prolong his detention and impede his removal.

22.  The Director requested further assistance from CG on 5 June 2024, 16 August 2024, 13 November 2024, 4 February 2025 and 2 June 2025 to issue a replacement travel document to the Applicant, and possible alternative means given the lack of cooperation by the Applicant.

B4.  Reviews of Detention

23.  The last review of detention was conducted on 17 June 2025.  Having considered and balancing the following factors, whilst it was acknowledged the period of the Detention was a long one, it was decided by the Director that the release of the Applicant on recognizance was not warranted:

(1)  The Applicant is liable for removal under the prevailing removal policy since his application for judicial review in relation to his NRC was dismissed by the CFI in March 2021;

(2)  His removal is directly or indirectly prevented or delayed by his refusing to cooperate with the re-entry seeking which should not render the Detention unlawful;

(3)  Liaison with CG was closely maintained for seeking alternative means to issue a travel document and as informed by CG on 2 June 2025, subject to the Applicant’s cooperativeness, it generally takes 2 months for verification of handwritten identity document and an emergency travel document could be issued within 2 weeks of verification; and

(4)  The Applicant has previously failed to report recognizance on 3 occasions, in total going underground for 63 months (or over 5 years).  Coupled with his lack of local connections and his expressed unwillingness to return to his home country, there is a real risk of absconding if he is released.

C.  The Applicant’s Submissions

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

(1)  The Respondent cannot say when or how he can be removed;

(2)  He has a pending appeal in relation to his JR.  Even if his appeal is dismissed by the Court of Appeal, he can further appeal to the Court of Final Appeal and may make a subsequent claim to the Director;

(3)  He is not being detained for the purpose of deportation or the Director does not intend to deport him;

(4)  He has never been associated with any crime of a 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;

(5)  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 where he can be easily located;

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

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

25.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further supplemented:

(1)  In the past 25 years that he has been in Hong Kong including whilst in detention, save he had failed to report recognizance, he has not doing anything wrong or illegal;

(2)  He suffers from a heart problem which was made known to the medical officers of CIC; and

(3)  He has family residing in the United Kingdom who will be coming to Hong Kong to assist him to complain about his case to the Police and they are willing to sponsor his visa application to the United Kingdom.

D.  Applicable Principles

26.  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.

27.  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.

28.  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.

29.  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.”

30.  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

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

32.  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, the Deputy Director of Immigration or any assistant director of immigration pending his removal.  There can be no dispute that the RO made against the Applicant is valid and extant. 

33.  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).

34.  The starting point is that the period of detention to date is 443 days, against which the other factors must be weighed and balanced.

35.  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 even before the Detention, the continued liaison with CG and the regular interviews with the Applicant to ascertain his willingness to return to Pakistan.  Therefore HS1 is satisfied.

36.  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 replacement travel document, continued liaison with CG for issuance of an emergency travel document to the Applicant despite his refusal to co-operate and regular interviews with the Applicant in the hope of securing his cooperation.  HS4 is also satisfied.

37.  With no legal impediment to the Applicant’s removal under the prevailing removal policy of the Government, and if the Applicant cooperates with the re-entry formalities, there is no reason to believe that removal cannot be effected within a reasonable period.  In so far as the Applicant has refused and continues to refuse to cooperate with the re-entry formalities, and despite warnings that this would prolong his detention, such unreasonable conduct that prolonged the period of detention should not be regarded as unreasonable or turn an otherwise lawful detention into an unlawful one.

38.  I note that the Applicant submitted that he is awaiting the determination of his appeal to the Court of Appeal but there was clear inordinate delay by only making the application for judicial review against the BOR2 Decision (dated 4 January 2017) in June 2020, and had the application been made promptly, the application for judicial review and any further appeals therefrom could well have been determined before the Detention commenced.  See Johnson Benjamin, §§25-26 and 29(1).  As for the Applicant’s submissions that he may make a subsequent NRC, any detention prolonged by the Applicant’s unreasonable conduct in not making such a claim reasonably diligently should not be regarded as unreasonable detention. 

39.  I also accept the Director’s assessment that with his history of failing to report recognizance and going underground for long periods of time (on two occasions he went underground 17 months and 44 months respectively until he was re-arrested by the Police), coupled with the Applicant’s stated unwillingness to return and lack of local ties, 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 and the intended effect of the RO.  The risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention.  See Harjang Singh at §164(14).

40.  In relation to the Applicant’s claimed physical and mental conditions, the Applicant confirmed that he has been seen by the medical officers of CIC and has not complained that he is not receiving proper medical treatment.  In any event, 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. 

41.  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.

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

F. Conclusion

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