ALI QASIM v. IMMIGRATION DEPARTMENT

HCAL 2855/2025

[2026] HKCFI 808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2855 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 24 December 2025 (“the Application”)  seeking his release from Tai Tam Gap Correctional Institution where he is currently been detained.   He has been detained since 10 September 2025 making the period of detention to date 147 days (“the Detention”).

2.  On 5 January 2026, I directed the named respondent to the Application to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.  A Response of the Respondent dated 29 January 2026 (“the Response”)  has been lodged.

3.  In the Response, it was stated that the Applicant was detained various powers of detention under ss.29(1), 29(2), 32(3)  and 32(3A)  of the Immigration Ordinance, Cap. 115 (“IO”). Since the detention under s.32(3A)  of IO was authorised by the Director of Immigration (“the Director”)  and under ss. 29 and 32(3)  of IO was authorised by the Secretary for Security (“the Secretary”), I am of the view 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 acting on behalf of the Respondents.  The Applicant’s wife was also present in court and exceptionally, notwithstanding she filed no affirmation in respect of the Applicant, upon the request of the Applicant, I also heard her.

5.  This is my Decision having heard the oral submissions of the Applicant (and his wife)  and Mr Yau, Government Counsel, appearing for the Respondents.

B.  Background

B1. Immigration status and stay in HK

6.  The Applicant is a Pakistani national, born on 15 January 1986.

7.  On 9 April 2009, the Applicant was arrested by the Police for illegal remaining.  He admitted that he entered Hong Kong illegally from the Mainland on 9 April 2009.

8.  He was released on recognizance on 25 April 2009.

9.  On 7 June 2012, the Applicant was convicted of the offence of taking employment while being a person who remained in Hong Kong without the authority of the Director after having landed in Hong Kong unlawfully and was sentenced to 14 months’ imprisonment.

10.  On 21 February 2013, a removal order (“RO”)  was issued against the Applicant under s.19(1)(b)  of IO.

11.  On 6 September 2018, the Applicant was convicted of the offence of taking employment while being a person in respect of whom an RO was in force and was sentenced to 16 months’ imprisonment.

12.  During recognizance, the Applicant had absconded on the following occasions:

(1)  28 May 2013 until intercepted by the police on 5 October 2013;

(2)  30 May 2016 until the Applicant surrendered to Immigration Department (“ImmD”)  on 14 July 2016; and

(3)  6 April 2023 until the Applicant surrendered to ImmD on 24 April 2023.

13.  On 24 October 2025, a deportation order (“DO”)  was issued against the Applicant under s.20(1)(a)  of IO.

14.  On 10 September 2025, the Applicant’s recognizance was ceased and he was detained at Castle Peak Bay Immigration Centre.

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

15.  On 12 April 2009, the Applicant lodged a torture claim which was refused by the Director on 10 May 2013.

16.  On 8 and 16 October 2013, the Applicant lodged a NRC which was refused by the Director on 29 November 2018 (“the Director’s Refusal”).

17.  On 14 December 2018, the Applicant lodged an appeal/petition against the Director’s Refusal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office but this was dismissed on 29 November 2019 (“the Board’s Decision”).

18.  On 11 December 2019, 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 11 April 2025 (“CFI’s Decision”).

19.  On 31 October 2025, the Court of Appeal dismissed the Applicant’s appeal against CFI’s Decision.

B3. Steps towards the removal of the Applicant

20.  Even prior to the Detention, by letters and chasers dated 24 October 2012, 20 May 2013, 24 October 2013, 12 December 2019 and 29 June 2023, ImmD wrote to the Consulate General of the Islamic Republic of Pakistan (“CG”)  informing of the intention to deport the Applicant and seeking assistance in issuing a replacement travel document to the Applicant. 

21.  On 28 November 2023, CG confirmed the Applicant’s Pakistani nationality.

22.  During the Detention, in all the interviews conducted with the Applicant by ImmD (on 10 September 2025, 9 October 2025, 21 November 2025, 24 November 2025, 15 December 2025, 23 December 2025 and 22 January 2026), the Applicant consistently expressed strong unwillingness to return to Pakistan and refused to cooperate with the re-entry formalities.

23.  By letters dated 16 September 2025, 5 November 2025 and 11 December 2025, ImmD wrote to inform CG that the Applicant remains uncooperative and refused to complete the application form and to attend CG for interview.  Enquiry was made on possible alternative means to issue a travel document regardless of the Applicant’s uncooperative attitude.

B4.  Review of Detention

24.  In the latest review of detention conducted by the Secretary on 21 January 2026 and by the Director on 27 January 2026, it was considered that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  With no NRC related impediment to removal after the JR Leave Application was refused on 11 April 2025, and active liaison with CG but the Applicant had persistently refused to cooperate with the removal, the Applicant’s removal is going to be possible within a reasonable time if he cooperates;

(2)  With the Applicant’s previous convictions which were the basis for the DO, coupled with his absconding records and unwillingness to return, there is a real risk which is not low that he will re-offend and/or abscond; and

(3)  The fact that he has a wife who is a Hong Kong permanent resident (“HKPR”)  who requested his release as the wife has a mental problem and relied on the Applicant’s support have been taken into account but having considered and balancing all factors, including the length of detention, release on recognizance is not warranted.

The Applicant’s Submissions

25.  In the Applicant’s Affirmation, apart from reciting general legal propositions and quotations from cases, clearly copied from previous similar applications, so far as relevant to the facts of his case, in gist the following submissions were made:

(1)  He cannot return to his home country due to the active threat from his rival and fear of extra judicial killing that he may face if deported;

(2)  The period of detention has been unreasonable;

(3)  If ImmD thinks he may abscond or pose a risk to society, his wife is willing to stand as guarantor/surety and he will reside with her at her address; and

(4)  The Detention has deprived him from living with his family.

26.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further submitted as follows:

(1)  He suffers from chest pain which required follow-up prior to the Detention but he had not done so as he was afraid to have surgery.  During the Detention, he mentioned that he had chest pains but no one took him seriously and he was detained in a cell;

(2)  His life is in danger if he is sent back to his home country.  He knows of an incident where another person had been sent back to his home country but died upon landing at the airport;

(3)  His wife is suffering from stress and experienced panic attack when he was detained.  He submitted medical records to show that his wife suffered from insomnia, recurrent panic attack and depressive symptoms, and was diagnosed with mixed anxiety depressive disorder as a result of which she has limited working capacity.  She has attended follow-up at the Castle Peak Hospital;

(4)  He does not have a “bad record” and although he previously absconded he will not do so again. He engaged in illegal employment because he was “compelled to do so” when he had no property back in Pakistan and needed to borrow money to see a private doctor for his toothache.  He is remorseful for his past behaviour and will not re-offend or jump bail again;

(5)  He donated blood many times and is a member of Takreem Islamic Association; and

(6)  He wish to challenge the DO if he is released.

27.  His wife also submitted that she wished the Applicant to be released so that he could give her company and accompany her to see the doctor for the physical and mental problems that she suffers from.

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

C.  Applicable Principles

29.  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.

30.  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.

31.  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.

32.  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.”

33.  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. 

D.  Analysis

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

35.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under: (a)  s.32(3A)  (from 10 September 2025 to 8 October 2025); (b)  s.29(1)  (from 9 October 2025 to 22 October 2025); (c)  s.29(2)  (on 23 October 2025); and (d)  s.32(3)  (from 24 October to present)  of IO.  There can be no dispute that the RO and DO made against the Applicant are valid and extant.  Notwithstanding the Applicant submitted that he wished to challenge the DO, to date he has not done so.

36.  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).

37.  The starting point is that the period of detention to date is 147 days, against which the other factors must be weighed and balanced.

38.  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 efforts to seek issuance of a replacement travel document to the Applicant from CG long before the Detention, the continued liaison with CG and the regular interviews with the Applicant in hope that he would express willingness to return to Pakistan.  HS1 is satisfied.

39.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the frequent interviews with the Applicant and active liaison with CG.  HS4 is also satisfied.

40.  With no legal impediment to the Applicant’s removal under the prevailing removal policy, there is no reason to believe that his removal cannot be effected within a reasonable period if the Applicant cooperates.  Insofar as the Applicant has refused and continues to refuse to cooperate with the removal arrangement 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. 

41.  Whilst the Applicant submits that he may take legal proceedings to challenge the DO, he has not done so.  The serious delay and failure to do so must mean that any detention caused or prolonged by the Applicant’s unreasonable conduct should not be regarded as an unreasonable period of detention.

42.  I also accept the Secretary’s and Director’s assessments that with his past convictions of offences of a very serious nature (evident from the sentence imposed)  which led to the issuance of the DO, coupled with his history of absconding and the Applicant’s stated unwillingness to return, even taking into account his local connections, there is a real risk of the Applicant absconding and/or re-offending.  If he were to abscond and/or re-offend, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the 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).

43.  Although the Applicant has a HKPR wife and no doubt the Detention is likely to cause stress and have some effect on both the Applicant and his wife, this has been taken into account.  Besides, the fact of the matter is that the Applicant is liable to be deported under the valid and extant DO hence it is only possible for him to reunite with his wife outside Hong Kong.  It should also be noted that the Applicant and his wife got married after the RO was issued so they must have known that the Applicant will be removed from Hong Kong.  Furthermore, the Applicant had absconded and was convicted of and sentenced to a long period of imprisonment even after he was married.  Thus his family circumstances should not be overstated and should be afforded little weight in light of the other factors mentioned above including the proximity of his removal.

44.  Although the Applicant says that he has problems in his home country, 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.

45.  In relation to the Applicant’s claimed physical and medical 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.  According to the Respondents, there is no record of the Applicant having requested for medical treatment during the Detention. 

46.  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.

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

E.  Conclusion

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