ISRAR AHMED KIYANI alias MOHAMMAD ISRAR KIYANI v. DIRECTOR OF IMMIGRATION DEPARTMENT AND ANOTHER

HCAL 1747/2025

[2025] HKCFI 5120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1747 OF 2025

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D E C I S I O N

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1.  Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 27 October 2008 and 29 September 2022. He has been held in immigration detention pursuant to section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”) since 19 November 2024. As at the date of the hearing before me, he has been detained for 343 days.

1.2  This is my decision on the Applicant’s application made on 7 August 2025 for a writ of habeas corpus. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. Ms Lynn Hui, Acting Senior Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.  Legal aid stay

2.1  The Applicant has recently applied for legal aid. At the hearing, I indicated that I would lift the legal aid stay. These are my reasons for doing so.

2.2  In Ousmane Issa Boubacar v Director of Immigration [2023] HKCFI 2602, Coleman J dealt with the issue of whether the mandatory legal aid stay of 42 days ought to be lifted in a very similar context, namely a belated application for legal aid by an applicant of a writ of habeas corpus. The learned Judge observed as follows:

“[7] After considering matters, I refused the adjournment – and, on the assumption that there has been a legal aid application relating to these proceedings which would have triggered an automatic 42-day stay of these proceedings – I lifted the legal aid stay. I did so for the following reasons:

(1) Applications for a writ of habeas corpus are to be heard as soon as is practicable.

(2) But, if a writ of habeas corpus has been issued in respect of a detained person, the person having custody of the detained person must not, until the writ has been discharged or the proceedings are concluded allow the detained person to be removed from Hong Kong: see section 22A(11).

(3) Hence, the practical effect of the making of an application for writ of habeas corpus is to create a legal impediment to removal of the detained person from Hong Kong.

(4) There is an inherent inconsistency between: (1) making an application which seeks immediate release from detention, and which should be heard as soon as possible; and (2) making another application which by its nature would prevent or delay release from detention, whether it is (a) an application for an adjournment, perhaps to seek legal advice, or (b) an application for legal aid which has the effect of triggering an automatic stay of 42 days.

(5) There is also inconsistency or tension between an application which seeks immediate release and a collateral application which frustrates an imminent release in fact already arranged.

…

(7) Hence, if the Applicant is correct, and his detention has become and/or will become unlawful, his own action in applying for legal aid – thereby triggering the automatic stay – and seeking an adjournment might cause him real unfairness and prejudice.

(8) The counter risk of prejudice is in depriving the Applicant of the potential opportunity to seek and obtain legal representation is significantly less likely to give rise to any real prejudice.

(9) This is because of the approach to habeas corpus applications, where the central question to be determined is whether there is, and continues to be, lawful authority for the detention, where an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(10) It is not incumbent on the applicant to demonstrate unlawfulness.

(11) The burden of showing that detention is lawful lies upon the respondent, but the Court is the primary decision maker as to the reasonableness of the detainee's continued detention.

(12) Either continuing detention is reasonable and so lawful, or it is not.

(13) Further, on a habeas corpus application, the Court is not dealing with a non-refoulement claim (“NRC”), and is not deciding whether the applicant should or should not be removed from Hong Kong.

(14) Instead, the Court is deciding whether the applicant – typically subject to a removal order and/or a deportation order – has been lawfully detained, and can continue to be lawfully detained, pending his removal or deportation from Hong Kong.”

2.3  I agree entirely the reasons adumbrated by Coleman J. In any event, at the hearing, the Applicant confirmed that he was desirous for the hearing today to proceed. I should record that the Applicant was not aware that the effect of making an application for legal aid might lead to a stay and he confirmed at the hearing that he did not object to the application being heard and dealt with today.

2.4  For the above reasons, I decided to uplift the legal aid stay and the hearing proceeded.

3.  Background

3.1  The Applicant is a Pakistani national. He first arrived in Hong Kong on 6 October 2000 and has since 19 October 2000 overstayed.

3.2  On 4 January 2008, the Applicant was convicted of section 19 wounding and breach of condition of stay (overstaying) and sentenced to a total of 15 months’ imprisonment.

3.3  Upon the Applicant’s discharge from prison on 19 September 2008, he was referred to the Immigration Department. As noted above, the Removal Order was made against him on 27 October 2008. He was subsequently released on recognizance on 2 November 2008.

3.4  On 8 August 2024, an emergency travel document was issued by the Consulate General of Pakistan (“CG”) to the Applicant, with validity last extended to 10 October 2025.

3.5  Prior to the commencement of the present detention a repatriation flight was arranged for the Applicant’s return to his home country on 6 September 2024 (“1^st Repatriation Operation”). As the Applicant was then on recognizance, he was informed of 1^st Repatriation Operation on 29 August 2024, upon which the Applicant indicated that he would render his cooperation. However, on 6 September 2024, he changed his mind and did not show up at the airport. He has since refused to return to Pakistan.

3.6  On 19 November 2024, the Applicant’s recognizance was ceased, upon which the present detention commenced. Two more repatriation operations were scheduled during the present detention, respectively on 13 March (“2^nd Repatriation Operation”) and 25 June 2025. On both occasions, the Applicant refused to cooperate with the removal arrangements. His emotional and erratic behaviour led to the calling-off of the two repatriation operations due to security considerations.

3.7  The Applicant has no family ties in Hong Kong.

4.  Non-refoulement claim (“NRC”) and related proceedings

4.1  On 6 February 2008, the Applicant lodged a torture claim, which claim was refused by the Director on 22 December 2014 (“Director’s 1^st Decision”).

4.2  On 29 December 2014, the Applicant lodged an appeal/petition against the Director’s 1^st Decision to the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“TCAB”).

4.3  On 6 June 2017, the Applicant was invited to submit additional facts in relation to his NRC on all applicable grounds including the right to life under Article 2 of the Hong Kong Bill of Rights (“BOR 2”). As the Director did not receive any reply from the Applicant, his NRC on the ground of BOR 2 was refused by the Director on 6 July 2017 (“Director’s 2^nd Decision”).

4.4  On 3 December 2019, TCAB received the Applicant’s letter (“26/11/19 Letter”) dated 26 November 2019 (1) stating that he wanted to return to his home country as it was safe for him to do so and (2) indicating that he wanted to cancel his NRC.

4.5  By a letter dated 12 December 2019, the TCAB informed the Applicant that it would treat the 26/11/19 Letter as an application to withdraw the appeal/petition against the Director’s 1^st and 2^nd Decision, stated the consequences of the proposed withdrawal (ie resulting in a dismissal of the appeal/petition) and advised him to seek independent legal advice. The TCAB requested the Applicant to provide a reply on or before 19 December 2019, failing which the TCAB would proceed to consider the application for withdrawal. As I understand the position, no further response was received from the Applicant.

4.6  On 8 January 2020, the TCAB informed the Applicant that his appeal/petition was withdrawn and no further action would be taken by the TCAB.

4.7  Following the commencement of the present detention and shortly before the 2^nd Repatriation Operation, the Applicant wrote to the TCAB requesting to reopen his appeal/petition, to which TCAB replied on 14 March 2025 that his appeal/petition was withdrawn and therefore finally determined.

4.8  Shortly before the present hearing, on 17 September 2025, the Applicant applied for leave to apply for judicial review against the Director’s 1^st and 2^nd Decisions (HCAL 2099/2025). On 25 September 2025, the Department of Justice requested the Court of First Instance to accord priority to HCAL 2099/2025.

5.  The present detention and its reviews

5.1  Following the aborted 1^st Repatriation Operation, the Immigration Department interviewed the Applicant on 19 November 2024 when he reported recognizance. At that interview, the Applicant showed strong resistance to leave Hong Kong and refused to complete travel document application for his removal arrangement. Upon review, his recognizance was ceased and the Applicant has since been detained under section 32(3) of the Ordinance pending his removal from Hong Kong pursuant to the Deportation Order.

5.2  As noted above, two repatriation operations were planned but aborted during the present detention. The Applicant’s detention was reviewed on 13 October 2025 and it was considered that there were grounds for continued detention:

(1)  HCAL 2099/2025 was lodged significantly out of time. As a request had already been made to the court to accord priority, there was sufficient reason to believe that it could be finalized within a reasonable time;

(2)  The CG had already issued a replacement travel document, which could be extended for his eventual deportation once HCAL 2099/2025 concluded;

(3)  The Applicant appeared to be using HCAL 2099/2055 to impede his own removal;

(4)  The Applicant’s deportation was delayed by his own actions. Had he cooperated with any of the previous repatriation operations, he could have been returned to his home country and released much earlier;

(5)  The Applicant posed a threat and security risk to the local community;

(6)  There was risk of the Applicant (re)offending / absconding.

5.3  At the hearing, I was provided with the latest review endorsed by the Principal Immigration Officer of 20 October 2025. The conclusion that the Applicant’s detention should continue is based largely on factors identified above.

6.  The Applicant’s submissions

6.1  In his written materials, the Applicant puts forward the following grounds:

(1)  He cannot be removed within a reasonable time;

(2)  There is currently a legal impediment to his removal as HCAL 2099/2025 remains extant;

(3)  Even were HCAL 2099/2025 determined against him, he has avenues to challenge the adverse decision and the right to request for a subsequent claim;

(4)  He explains that previously he truly held the view that he could return to his home country as he thought he had compromised the dispute with his “enemy” but that turned out to be not the case and he fears for his own safety if repatriated to his home country;

(5)  His failure to show up at the airport for the 1^st Repatriation Operation was not deliberate as there was miscommunication and typhoon signal 8 was hoisted[1];

(6)  Unlike imprisonment where there is a finite period, his current detention does not have a fixed date of release;

(7)  His conviction was in 2008 and he has since been on good behaviour and he therefore reasons that he does not pose a threat or security risk to the community;

(8)  He promises not to abscond and through the assistance of the ISS he can provide a fixed address;

(9)  He offers HK$4,000 as bail money and is willing to comply with reporting conditions;

(10)  He is suffering from (1) a psychiatric condition and has been on medication for 14 years, (2) high blood pressure, (3) high cholesterol, (4) liver problems, (5) tooth pain and (6) lower back pain and his conditions have been exacerbated by the current detention;

6.2  At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of his application. He supplemented as follows: (1) the name of his father on the emergency travel document is incorrect, (2) he has a wife in Hong Kong, (3) he is not receiving proper treatment for his health conditions, (4) there is still an outstanding criminal case, in that he was fined for not wearing a mask and he is still in the processing of meeting the fine imposed by installments and (5) his friend had told him on 17 December 2024 that he should not return to his home country as the problem remained unresolved.

7.  The applicable principles

7.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

7.2  I remind myself that the burden is on the Respondents to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

7.3  Under Section 32(4A) of the Ordinance, 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, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) 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 and (4) factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

7.4  The Court of Appeal has provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee's own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention. It is stated 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 behaviours or conducts 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 and 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."

7.5  Johnson Benjamin is also an authority for the proposition that it is legitimate for the court to take into account the timing of the steps taken by an applicant in relation to his NRC (and the reasonableness thereof):

“[25] On the other hand, as mentioned above, the Judge rightly found that the applicant by his own conducts had not pursued with any reasonable diligence his NRC for a long period of time. By the time when he eventually seriously pursued it in December 2021 (just before he was to be released from prison), it was already 10 years since the applicant first lodged the NRC…

[26] In this respect, it is also important to note that the Judge further rightly observed and accepted at [70] and [71] of the Written Judgment that (a) the equivocation of the applicant had significantly contributed to the significant delay in the determination of his NRC, and (b) had the applicant chosen to pursue his case with some diligence, his NRC might have been resolved long before February 2022, when the immigration detention commenced.”

8.  Analysis

8.1  During the present detention, the Applicant is and has been detained pursuant to section 32(3) of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

8.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 343 days, against which the various other factors must be weighed and balanced.

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

8.4  I accept that, throughout the period of detention, the intention of the Director and the Secretary is to remove the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied. I also accept that the Director and the Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. The foregoing is amply demonstrated by the matters set out above, including the arrangement of the repatriation operations and the efforts made to expedite the resolution of HCAL 2099/2025.

8.5  As at the commencement of the present detention, there was neither any legal nor practical impediment to the Applicant’s removal. A legal impediment, by way of HCAL 2099/2025, has belatedly arisen. I am of the firm view the resulting lengthening of the current detention is all attributable to the Applicant. HCA 2099/2025 seeks to challenge the Director’s 1^st and 2^nd Decisions, which were made in 2014 and 2017. As observed at Johnson Benjamin §§25 and 26, the manner in which the Applicant has handled his NRC is unreasonable on multiple fronts, first in the substantial delay and secondly in his equivocation in withdrawing his NRC and subsequently seeking to reopen it. The chronology also lends credence to the Respondents’ assessment that the Applicant is seeking to use HCAL 2099/2025 predominantly for the purpose of delaying is removal.

8.6  In the light of the time elapsed since the Applicant’s convictions, I am prepared to proceed on the basis that they no longer give rise to a serious concern that he poses a threat or security risk to the community. However, there remains a risk of (re)offending, which risk, if materializes, may delay his removal by reason of consequential investigations and potential court proceedings.

8.7  Perhaps more significantly, I accept the Respondents’ submission that there is a real risk of the Applicant absconding given his lack of local ties and his professed reluctance to return to his home country. His assertion for the first time at the hearing that he has a wife in Hong Kong is suspect. I was told by the Respondents that the Immigration Department has no record of the Applicant having or claiming to have a wife in Hong Kong.

8.8  In relation to the Applicant's claimed health conditions, there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained. In any event, the Applicant's medical condition, whether physical or mental, does not have the effect of altering his continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

8.9  I also attach weight to the Respondents’ submission that had the Applicant cooperated with the previous repatriation operations, he would have been released, albeit in the form of being returned to his home country, long ago.

8.10  I also do not accept the Applicant’s assertion, again made for the first time at the hearing, that there is any error on the particulars of the father set out in the Applicant’s emergency travel document. As pointed out by the Respondents, the CG had already verified the Applicant’s identity.

8.11  Overall weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

9.  Conclusion

9.1  By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention (at least until the resolution of HCAL 2099/2025) has been and will remain lawful. I have no doubt that the Applicant’s detention will be further reviewed when the result of HCAL 2099/2025 becomes known.

9.2  I therefore dismiss the application with no order as to costs.