MAHMOOD DANISH ARSHAD v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2163/2025

[2025] HKCFI 5119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2163 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 September 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) (“the Application”).  He had been detained since 20 May 2023 making the period of detention to date 889 days (“the Detention”).

2.  On 2 October 2025, I directed the named respondents to the Application, the Director of Immigration (“the Director”) and the Secretary for Security (“the Secretary”), inter alia to lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application on or before 10 October 2025. Subsequently, on 9 October 2025, I granted an extension of time for the Response to be lodged and served on or before 14 October.  A Response/Skeleton Submissions for the Respondents dated 13 October 2025 (“the Response”) was lodged.

3.  By letter dated 16 October 2025 from the Department of Justice (“DOJ”), acting on behalf of the Respondents, the court was informed that the Applicant is currently detained at Castle Peak Bay Immigration Centre (“CIC”).

4.  By DOJ’s further letter dated 21 October 2025, Supplemental Written Submissions dated 21 October 2025 (“Supplemental Response”) and further documents were submitted to provide the court with an update on further developments since the lodging of the Response.

5.  At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.  He told me that although there were attempts to serve documents on him, he took the view they were filed late (and he was not notified of the court’s extension of time), he refused to receive them.   Anyhow, he said he is not literate and would not understand them.   At start of today’s hearing I offered the Applicant the opportunity for the interpreter to interpret or explain to him the Response but he said that was not necessary.   However, he accepted my invitation for the Supplemental Response to be interpreted to him which the interpreter did.

6.  This is my Decision having heard the oral submissions of the Applicant and Mr Cheung, Senior Government Counsel, appearing for the Respondents.

B.   Background

B1.  Immigration status and stay in HK

7.  The Applicant is a Pakistani national, born on 24 November 1980.

8.  On 3 January 2008, the Applicant was arrested by the Police for being an illegal immigrant.  He claimed to have entered Hong Kong illegally by boat on 29 October 2006.  He was referred to the Immigration Department (“ImmD”) on 5 January 2008 and was detained.

9.  On 29 January 2008, a removal order (“RO”) was issued against the Applicant under s.19(1)(b) of the Immigration Ordinance, Cap  115 (“IO”).

10.  On 2 April 2008, the Applicant was released on recognizance.

11.  Whilst on recognizance:

(1)  On 5 October 2010, the Applicant was arrested for common assault.  On 18 November 2010, he was bound over without conviction at HK$1,000 for 12 months;

(2)  On 29 March 2015, the Applicant was arrested by the Police for theft but was acquitted on 8 June 2015;

(3)  On 28 February 2018, the Applicant failed to report recognizance until arrested by the police on 26 March 2018;

(4)  On 3 March 2021, the Applicant was arrested for the offence of taking employment while being a person in respect of whom a removal order is in force.  He was convicted of the offence and sentenced to 22 months’ imprisonment on 3 March 2022.

12.  On 20 May 2023, upon discharge from prison, the Applicant was referred to ImmD and detained.

13.  On 20 September 2023, a deportation order (“DO”) was issued against the Applicant under s.20(1)(a) of IO.

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

14.  On 2 November 2006, the Applicant registered an asylum claim with the United Nations High Commissioners for Refugees which was closed on 28 September 2007.

15.  On 31 January 2008, the Applicant lodged a NRC in relation to Article 3 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), persecution risk and torture risk which was refused by the Director on 16 January 2015.   On 2 December 2016, the Applicant’s appeal/petition against the Director’s refusal to the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) was dismissed.

16.  The Director also rejected the Applicant’s NRC in relation to Article 2 of HKBOR on 12 January 2017 (“the Director’s Decision”).

17.  On 7 August 2017, the Applicant’s appeal/petition against the Director’s Decision to the Board (“the Board’s Decision”) was dismissed.

18.  On 29 June 2018, more than 7 months late, the Applicant filed an application for leave to apply for judicial review (in HCAL 1235/2018) against the Board’s Decision (“the JR Leave Application”) but was dismissed by DHCJ Bruno Chan (“the learned Judge”) on 3 June 2021 (“CFI’s Decision”).

19.  On 24 August 2023, more than 2 years after the expiry of the time limit for appealing and only after the Detention commenced, the Applicant applied for extension of time to appeal against the CFI Decision but was dismissed by the learned Judge on 12 October 2023.

20.  On 10 October 2024, the Applicant applied for leave to appeal out of time which was treated as a renewed application for extension of time to appeal against the CFI Decision but was dismissed by the Court of Appeal on 2 April 2025.

21.  On 20 November 2023, ImmD first received a request by the Applicant to make a subsequent claim which was refused on 13 March 2024.  Between March 2024 and July 2025, further letters were written by the Applicant to ImmD in relation to his claim but all requests for making a subsequent claim were refused by ImmD.

22.  On 15 October 2025, after this Application was made, the Applicant filed an application for leave for judicial review against the Board’s decision dated 2 December 2016 under HCAL 2300/2025.  On the same date, the Registrar of the High Court sent a letter to the Applicant, copied to ImmD, seeking his explanation in writing why that application should not be struck out on the ground of abuse of process as it has come to the Court’s attention that he had filed a similar application in HCAL 1235/2018.  By letter dated 16 October 2025, DOJ has requested the Registrar to accord priority to HCAL 2300/2025.

B3.  Steps towards the removal of the Applicant

23.  Prior to the Detention, the Director had written to the Consulate General of the Islamic Republic of Pakistan (“CG”) on 22 January 2015 informing of the Director’s intention to repatriate the Applicant back to Pakistan save for that the Applicant’s Pakistani passport had expired.  The Director sought issuance of a replacement travel document.  Further follow-up letters were sent to CG on 19 June 2018, 7 December 2022 and 4 May 2023.

24.  During the Detention, by letter dated 29 June 2023 to CG, ImmD further sought assistance on alternative means to issue to the Applicant a travel document despite the Applicant’s uncooperative attitude and refusal to complete the application form.

25.  During interviews by ImmD (on 25 May 2023, 2 June 2023, 5 June 2023, 30 June 2023, 2 August 2023, 4 August 2023, 25 August 2023, 31 August 2023, 6 September 2023, 16 October 2023, 19 October 2023, 30 October 2023, 23 November 2023, 5 January 2024, 25 January 2024, 23 February 2024, 18 March 2024, 25 March 2024, 5 April 2024,  8 April 2024, 11 April 2024, 3 May 2024, 14 May 2024, 17 May 2024, 14 June 2024, 9 August 2024, 15 August 2024, 21 August 2024, 4 September 2024, 26 September 2024, 27 September 2024, 3 October 2024, 10 October 2024, 25 October 2024, 31 October 2024, 18 November 2024, 22 November 2024, 19 December 2024, 15 January 2025, 20 January 2025, 17 February 2025, 20 February 2025, 3 April 2025, 6 May 2025, 5 June 2025, 9 July 2025, 11 August 2025, 26 August 2025, 11 September 2025 and 30 September 2025), the Applicant all along expressed unwillingness to return to his home country and refused to submit a re-entry application and attend interview with CG.

26.  On 31 August 2023, CG issued an emergency travel document (“ETD”) to the Applicant with a validity of 30 days.  Upon the requests by ImmD, CG extended the validity of the ETD repeatedly and it was last extended to 3 January 2026.

27.  To date, ImmD had arranged six removal operations to remove the Applicant on 30 October 2023, 11 April 2024, 17 May 2024, 15 August 2024, 22 November 2024 and 17 February 2025.  On each occasion, the Applicant refused to cooperate and resisted removal.  Taking into account security and safety, each time the removal operation was called off and the Applicant sent back to detention at TCGI or CIC.

28.  The next removal operation is tentatively scheduled for 3 November 2025.

B4.  Reviews of Detention

29.  The last review of detention was conducted by the Director on 15 October 2025.  Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  There is no NRC related impediment to removal upon the dismissal of the JR Leave Application on 3 June 2021 and refusal of the request for making a subsequent claim on 13 March 2024;

(2)  An ETD has been issued with validity last extended until 3 January 2026 and if the Applicant cooperates, removal is possible within a reasonable time;

(3)  The Applicant’s removal is hindered and detention self-inflicted by his refusal to cooperate in both the re-entry seeking and repatriation arrangements;

(4)  Given the Applicant’s previous conviction of a serious crime and absconding record, coupled with his persistent unwillingness to return, his uncooperative attitude and resistance in the removal operations, there is a real risk of absconding and/or re-offending;

(5)  The fact that he has a wife and three children in Hong Kong who are all non-refoulement claimants and has a Hong Kong permanent resident (“HKPR”) friend who agreed to act as the Applicant’s guarantor, health concerns and the duration of detention have been taken into consideration but do not outweigh those factors in support of continued detention.

The Applicant’s Submissions

30.  In the Applicant’s Affirmation, handwritten totaling 80 pages excluding exhibits, apart from reciting general legal propositions and citations from other cases, the following submissions were made:

(1)  The period of detention must by now have become unlawful;

(2)  He has a HKPR friend willing to act as his surety/guarantor and he will reside with his friend at a fixed abode where he can be easily located;

(3)  His medical condition has worsened since detention in TCGI and the facilities are uncomfortable;

(4)  ImmD failed to give a time for his removal.  His NRC is still processing and he is preparing to make an application for judicial review and even if dismissed he has the opportunity to appeal and lodge a subsequent claim;

(5)  He cannot return to Pakistan as his life is in danger;

(6)  The crime he committed for working illegally was committed unintentionally and he has served the sentence.  He is remorseful and he does not pose a danger to society.  He is willing to give an undertaking not to commit any offence or engage in illegal activities;

(7)  He previously failed to report recognizance because he had a head injury, his wife was pregnant and he had to look after his two children;

(8)  CG without his permission issued a travel document to ImmD;

(9)  He has a wife, a daughter and two sons in Hong Kong.  One of his son has mental problems.  The Detention has caused anxiety and depression to one of his children; and

(10)   He is prepared to provide self-surety of HK$4,000 and to report recognizance once a week and comply with other conditions deemed necessary.

31.  At the hearing, the Applicant told me although he had signed the Affirmation, it was not written by him, someone else copied it for him and he did not know the content thereof as he was illiterate.  I afforded him the opportunity to tell me through the interpreter what were his grounds for the Application.   In summary, these were:

(1)  He had been detained because he was illegally employed and he tried to appeal against that conviction not because of money but he did not want to be seen as a criminal;

(2)  He has a wife who is applying for divorce and 3 children here;

(3)  He cannot be sent back because his life is in danger and he has documents to show that;

(4)  He has been detained for a long period of time although he is not saying that the detention was unlawful because ImmD can do what they want;

(5)  ImmD knows that his life is in danger and that is why they have not sent him back even though they tried 7 to 8 times in the last 2 years;

(6)  He has applied for judicial review and he has ongoing case in the Family Court in relation to his wife’s petition to divorce him which he has applied for legal aid;

(7)  He has raised a subsequent claim by letters sent on 10 June 2025 but received no reply;

(8)  He has not claimed for damages for unlawful detention and has not accepted any money offered from M C Lai;

(9)  If released, he can get the “evidence” for the application for judicial review;

(10)  He will cooperate with ImmD if they give him “bail”;

(11)  One of his son has suffered from mental disorder because of the Detention;

(12)  His family is “outside” and he is “inside” and he loves his family very much;

(13)  The Respondents have misguided the court when they say they have prepared the travel document.

32.  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

33.  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.

34.  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.

35.  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.

36.  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.”

37.  The Court of Appeal accepted the first instance judge’s observations that the applicant in that case by his own conduct in not pursuing with any reasonable diligence his NRC contributed to the significant delay in the determination of his NRC and had the applicant chosen to pursue his case with some diligence, his NRC might have been resolved long before the immigration detention commenced (§25). In those circumstances, the Court of Appeal held that the relatively lengthy period of immigration detention is substantially caused and necessitated by the applicant’s own unreasonable conduct and acts in significantly delaying the disposal of his NRC and should not be regarded as an unreasonable period of detention  (§§29(1) and 29(3)).

38.  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. 

D.   Analysis

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

40.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A) (from 20 May 2023 to 11 September 2023), s.29(1) (from 12 September 2023 to 19 September 2023), and s.32(3) (from 20 September 2023 to date) of IO.  There can be no dispute that the RO and DO made against the Applicant are valid and extant. 

41.  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).

42.  The starting point is that the period of detention to date is 889 days, which no doubt is a very long period, against which the other factors must be weighed and balanced.

43.  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 travel document to the Applicant from CG long before the Detention, the continued liaison with CG to secure and renew the validity of the ETD during the Detention, numerous interviews with the Applicant in hope that he would express willingness to return to Pakistan as well as the numerous attempted repatriation operations.  HS1 is satisfied.

44.  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 assistance from and continued liaison with CG, the many and frequent interviews with the Applicant and swiftly writing to the High Court to seek the court’s assistance to accord priority to HCAL 2300/2025.  HS4 is also satisfied.

45.  Whilst under the prevailing removal policy there is currently a legal impediment to the Applicant’s removal by the belated taking out of HCAL 2300/2025, I am confident that priority would be accorded to its disposal and that it would be determined within a reasonable period of time.  In any event, there will no doubt be further reviews of detention by the Director in the interim period to consider releasing the Applicant if the period of detention will become unreasonable or it becomes apparent that the Applicant cannot be removed within a reasonable period.

46.  Given that I have every confidence that HCAL 2300/2025 could be determined within a reasonable period of time, and if dismissed, with a valid ETD, there is no reason to believe that the Applicant’s removal cannot be effected within a reasonable period if the Applicant cooperates.  Any further appeals upon the dismissal for leave to apply for judicial review do not constitute legal impediment to removal under the prevailing removal policy.  

47.  Furthermore, given the serious delay and failure by the Applicant to promptly take out the NRC-related proceedings (more than 2 years after the expiry of the time limit for appealing against the CFI Decision and taking a further year to renew the application before the Court of Appeal, and taking out HCAL 2300/2025 more than 8 years out of time against the Board’s decision dated 2 December 2016), which clearly contributed to the delay in their determination, any period of detention caused or prolonged by such unreasonable conduct should not be regarded as unreasonable.  No doubt if they were taken out promptly there is a real possibility that they would have been determined prior to the commencement of the Detention and the Applicant removed long ago.

48.  Insofar as the Applicant had refused to cooperate with the re-entry seeking formalities and removal arrangements when there was no legal impediment to his removal, and despite warnings that this would prolong his detention, the prolonged period of detention as a result of his unreasonable conduct should also 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.  I also accept the Director’s assessment that with his past conviction of an offence of sufficient serious nature to lead to the issuance of the DO, record of absconding, coupled with the Applicant’s stated unwillingness to return and refusal to cooperate with the repatriation arrangements, there is a real risk of the Applicant absconding and/or re-offending.  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 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).

50.  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.

51.  As for the Applicant’s fear for his own safety if repatriated, as has been stated and repeated in many previous decisions, an application for writ of habeas corpus is not an opportunity for the applicant to continue to assert his concerns underpinning his NRC and the court in his application for writ of habeas corpus will not look at the merits of such claim.

52.  I do not believe that the Applicant’s other submissions, which I have taken into account, can have the effect of outweighing the matters identified in the preceding paragraphs to justify his release.   In respect of his desire to reunite with his family, the fact of the matter remains that his wife and children are unsubstantiated non-refoulement claimants who are liable to be removed and his desire to reunite with them is best achieved by reuniting with them outside Hong Kong:  see Ruz Esmiralde Naguimbing v Immigration Director [2023] HKCFI 5684, §§38-40 per Coleman J.

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

E.   Conclusion

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