ABBAS SADAQAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2071/2025

[2025] HKCFI 5014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2071 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 15 September 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”)  where he has been detained since 4 August 2024 (“the Application”).  The period of detention to date is 443 days (“the Detention”).

2.  On 17 September 2025, I directed the named respondents to the Application inter alia to lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.  A Response/ Skeleton Submissions for the Respondents dated 13 October 2025 (“the Response”)  has been lodged.  

3.  In the Response, it was stated that in the Application the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  was wrongly named as Putative Respondent given that the Board had no role to play in the exercise of the power of detention against the Applicant.  I agree.  As the Director of Immigration (“the Director”)  and the Secretary for Security (“the Secretary”)  exercised the relevant powers of detention under the Immigration Ordinance, Cap. 115 (“IO”)  in respect of the Detention and the Director decides whether the Applicant should be released on recognizance and enforces the deportation order made against the Applicant, the proper respondents to the Application should be the Secretary and the Director (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.

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

B.   Background

B1. Immigration status and stay in HK

6.  The Applicant is a Pakistani national, born in 1983.

7.  On 9 April 2009, the Applicant was arrested by the Police for illegal remaining.  He claimed to have entered Hong Kong illegally from the Mainland on the same day. 

8.  On 30 October 2013, the Applicant was convicted of theft (pickpocket)  and was sentence to 8 months’ imprisonment.

9.  On 23 May 2014, a removal order (“RO”)  was issued against the Applicant under s. 19(1)(b)  of IO.

10.  Whilst on recognizance, the Applicant had two records of absconding:

(1)  On 16 March 2018, he failed to report recognizance and only reported on 26 April 2018 providing written submissions that he failed to report because of lack of transportation fee; and

(2)  On 28 October 2022, he failed to report recognizance and was arrested by the police on 3 August 2024.  By written submissions dated 22 August 2024, he explained that he failed to report due to his sickness.

11.  On 6 November 2024, a deportation order (“DO”)  was issued against the Applicant under s. 20(1)(a)  of IO.

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

12.  On 12 April 2009, the Applicant made a torture claim which was rejected by the Director on 8 November 2013. 

13.  On 28 November 2013, the Applicant lodged a NRC which was refused by the Director on 29 March 2019 (“the Director’s Refusal”).

14.  On 13 April 2022, the Applicant’s appeal/petition against the Director’s Refusal to the Board was dismissed (“the Board’s Decision”).

15.  On 11 November 2024, after the commencement of the Detention, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”)  but was dismissed by DHCJ Reuden Lai (“the learned Judge”)  on 12 February 2025 (“CFI’s Decision”).

16.  On 17 April 2025, the Applicant applied to the Court of First Instance for extension of time to appeal against the CFI Decision but was dismissed by the learned Judge on 13 June 2025.

B3. Steps towards the removal of the Applicant

17.  Prior to the Detention, the Director had written to the Consulate General of the Islamic Republic of Pakistan (“CG”)  on 26 April 2022 informing of the Director’s intention to deport the Applicant back to Pakistan save for that the Applicant’s Pakistani passport had expired.  The Director sought issuance of a replacement travel document.

18.  By letter dated 14 August 2024, the Director again sent a letter to CG seeking assistance for the issuance of a travel document to the Applicant.

19.  On 9 September 2024, CG confirmed that the Applicant is verified as Pakistani.

20.  During numerous interviews conducted with the Applicant by the Immigration Department, the Applicant consistently expressed strong unwillingness to return to Pakistan and refused to cooperate with re-entry seeking formalities.  Given the Applicant’s uncooperative attitude, by letters dated 14 November 2024 and 16 December 2024, the Director wrote to CG informing that the Applicant remains uncooperative and refused to complete the application and attend interviews, and enquired where there were alternative means to issue him a travel document regardless of his uncooperative attitude.

21.  On 19 December 2024, an emergency passport (“EP”)  with validity for 30 days was issued by CG.

22.  Despite the issuance of the EP, during interviews with the Applicant on 3 and 9 January 2025, the Applicant maintained his unwillingness to return to Pakistan and refused to cooperate with the removal arrangements.

23.  Further interviews were conducted with the Applicant on 12 February 2025, 10 March 2025, 21 March 2025, 28 March 2025, 17 April 2025, 25 April 2025, 29 April 2025, 8 May 2025, 19 May 2025 and 28 May 2025.

24.  On 31 March 2025, the validity of the EP was extended to 27 June 2025 by CG.

25.  A removal operation was initially scheduled for 17 June 2025.  However, during the interview on the same day when informed he would be repatriated the Applicant became emotional, insisted he would not cooperate and refused to proceed to the airport.  Taking security and safety into consideration, the removal operation was called-off.

26.  On 10 October 2025, upon further liaison with CG, the validity of the EP was extended to 3 January 2026.

27.  A further repatriation is next scheduled for 22 October 2025.

B4. Reviews of Detention

28.  The last review of detention was conducted by the Director on 10 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 12 February 2025;

(2)  His removal is hindered by his refusal to cooperate with the re-entry formalities and repatriation attempt;

(3)  The Applicant had previous conviction of serious crime and absconding records, together with his lack of local ties, there is a real risk of absconding and/or re-offending if released; and

(4)  There is no reason to believe the Applicant will not receive appropriate medical treatment in detention.

The Applicant’s Submissions

29.  In the Applicant’s Affirmation, apart from reciting general legal propositions so far as relevant to the facts of his case, in gist the following submissions were made:

(1)  He has been detained for around 15 months;

(2)  He has a medical condition which has worsened since the Detention;

(3)  He questions whether the Immigration Department can clearly identify the time when he can be removed from Hong Kong; and

(4)  He disagreed that he had conviction of serious violent nature or failed to comply with terms and conditions of recognizance.

30.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further supplemented that he has never asked to go back to his home country and that there are many people who do want to go back but has not been sent back. 

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

C.   Applicable Principles

32.  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.

33.  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.

34.  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.

35.  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.”

36.  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

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

38.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s. 32(3A)  (from 4 August 2024 to 17 October 2024), s. 29(1)  (from 18 October 2024 to 31 October 2024), s. 29(2)  (from 1 November 2024 to 6 November 2024)  and s. 32(3)  (from 6 November 2024 to date)  of IO.  There can be no dispute that the RO and DO made against the Applicant are valid and extant. 

39.  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).

40.  The starting point is that the period of detention to date is 443 days, which no doubt is a very long period, against which the other factors must be weighed and balanced.

41.  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 and the continued liaison with CG to secure and renew the validity of the EP during the Detention, numerous interviews with the Applicant in hope that he would express willingness to return to Pakistan as well as the attempted repatriation operations.  HS1 is satisfied.

42.  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 frequent interviews with the Applicant, and writing to the High Court to seek the court’s assistance to accord priority to the JR Leave Application.  HS4 is also satisfied.

43.  With no legal impediment to the Applicant’s removal under the prevailing removal policy, a valid EP, and a flight scheduled for 22 October 2025, there is no reason to believe that his removal cannot be effected within a reasonable period if the Applicant cooperates.  Insofar as the Applicant had previously refused to cooperate with the removal arrangements and continues to do, regardless of whether there were ongoing NRC-related proceedings, 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. 

44.  I also accept the Director’s and Secretary’s assessment that with his past conviction of offence of a very serious nature which led to the issuance of the DO, records of absconding for long periods of time coupled with the Applicant’s stated unwillingness to return and lack of local ties, 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).

45.  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.

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.