ABDUL RAUF HARIS v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1358/2025

[2025] HKCFI 3876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1358 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 13 June 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he has been detained since 12 May 2025 (“the Application”). The period of detention to date is 107 days (“the Detention”).

2.  On 19 June 2025, I directed the named respondents to the Application inter alia to lodge and serve their response to the Application and the Applicant’s Affirmation filed in support of the Application. An “Initial Response for the Respondents” dated 12 August 2025 (“the Response”) has been lodged.

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 by the Department of Justice acting on behalf of the Respondents.

4.  This is my Decision having heard the oral submissions of the Applicant and Ms Cheung, Senior Government Counsel, appearing for the Director and the Secretary.

B.  Background

B1.  Immigration status and stay in HK

5.  The Applicant is a Pakistani national born on 8 July 1994.

6.  On 1 September 2015, the Applicant presented for arrival clearance at Lo Wu Control Point on the strength of his Pakistani passport. After immigration examination, he was refused permission to land and was detained pending removal from Hong Kong.

7.  On 17 December 2015, a removal order (“RO”) was issued against the Applicant under s. 19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”).

8.  On 13 January 2016, the Applicant was released on recognizance.

9.  On 24 January 2018, the Applicant was arrested by the Police for trafficking in dangerous drugs. On 9 January 2019, he was convicted of two counts of trafficking in dangerous drugs (cannabis resin with estimated street value of over HK$1M) and was sentenced to 3 years’ imprisonment.

10.  On 29 July 2024, he was convicted of gambling in a gambling establishment and was filed HK$1,000.

11.  On 30 August 2024, he failed to report recognizance and resurfaced on 9 September 2024 claiming that he had failed to report because his foot was fractured.

12.  On 13, 20, 27 September 2024 and 3 October 2024, when the Applicant failed to report recognizance, the Immigration Department (“ImmD”) attempted to contact the Applicant but in vain.

13.  On 24 February 2025, the Applicant was convicted of attempted theft and was sentenced to 4 months’ imprisonment.

14.  Upon discharge from prison on 12 May 2025 to present, the Applicant was detained under s.32(3A) of IO.

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

15.  The Applicant lodged a NRC on 1 September 2015 which was rejected by the Director on 26 November 2015.

16.  On 30 December 2015, the Applicant indicated his intention to lodge a NRC under Article 2 of the Hong Kong Bill of Rights which was rejected by the Director on 21 November 2016.

17.  On 27 March 2017, the Applicant filed an appeal/petition against the Director’s refusal of the Applicant’s NRC to the Tortures Claims Appeal Board/Non-refoulement Claims Petition Officer out of time but this was rejected on 23 March 2018 (“the Board’s Decision”).

18.  On 16 March 2020, the Applicant filed an application for leave to apply for judicial review against the Director’s refusal of his NRC and the Board’s Decision (“the JR Leave Application”).

19.  On 27 May 2025, the JR Leave Application was heard by the Court of First Instance.

20.  On 17 July 2025, ImmD confirmed with the High Court that the Applicant attended the hearing of the JR Leave Application and the judge was preparing the judgment. The High Court was also informed that the Applicant had filed the Application.

21.  On 30 July 2025, the JR Leave Application was dismissed.

B3.  Steps towards the removal of the Applicant

22.  Even prior to the Detention, the Director had written to the Consulate General of the Islamic Republic of Pakistan (“CG”) on 8 July 2019 informing of the Director’s intention to deport the Applicant back to Pakistan save for the Applicant’s passport had expired. The Director sought confirmation of re-entry to Pakistan.

23.  On 21 May 2024, the Director wrote to CG seeking verification, issuance of a replacement travel document (“RTD”) and to confirm the Applicant’s re-entry to Pakistan.

24.  During interviews by ImmD during the Detention (on 21 May 2025, 6 June 2025, 11 June 2025, 7 July 2025, 31 July 2025 and 7 August 2025) the Applicant expressed his unwillingness to return to Pakistan and refused to comply with the re-entry formalities.

25.  On 2 June 2025, the Director wrote to CG informing that the Applicant was reluctant to complete the re-entry formalities and sought possible alternative means to issue a travel document.

26.  On 25 June 2025, the Director sent a further letter and email to CG requesting for alternative means to issue a RTD.

B4.  Reviews of Detention

27.  The last review of detention was conducted by the Director on 8 August 2025. Essentially, it was decided that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  The removal of the Applicant is possible within a reasonable time given the Applicant’s application for judicial review in relation to his NRC was refused by the Court of First Instance on 30 July 2025 and irrespective of further proceedings to the higher courts by unsubstantiated claimants, there is no impediment to his removal under the prevailing removal policy;

(2)  During recognizance, the Applicant was convicted of 2 counts of trafficking in dangerous drugs, gambling and attempted theft which are convictions associated with crimes of serious nature and it is assessed he posed a threat/security risk to the community;

(3)  He had failed to report recognizance and comply with the terms/conditions of release and may re-offend or abscond if released;

(4)  The Applicant has directly or indirectly prevented or delayed removal by his expressed unwillingness to return since the present detention and lack of cooperation hindered and impeded his removal; and

(5)  The fact that he has an Indonesia girlfriend (who is also a non-refoulement claimant on recognizance) with two young children in Hong Kong has been taken into account but does not outweigh other factors against release stated above.

C.  The Applicant’s Submissions

28.  In the Applicant’s Affirmation, although he purported to cite a number of legal authority and principles, essentially the following submissions, insofar as they were relevant to him, were made:

(1)  The length of the Detention is unreasonably long and not justified by the Director;

(2)  The Director cannot say when he can be removed when he has ongoing legal proceedings and “other legal proceedings to attempt” so potentially it will be a very long time until he can actually be deported;

(3)  The condition of his detention is similar to detention in a jail or prison;

(4)  He should not be detained for his past offences and he has already served his sentence and has been rehabilitated therefore there is no risk of re-offending. It would be wrong to believe there is a risk of re-offending just because of his prior conviction;

(5)  He should be detained only to effect removal;

(6)  The chance of absconding is low and he is willing to comply with conditions if released on recognizance; and

(7)  He has two young sons and it is hard for his wife to take care of them.

29.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions. He did not have any further submissions to make.

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

D.  Applicable Principles

31.  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.

32.  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.

33.  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.

34.  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.”

35.  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.

E.  Analysis

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

37.  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 pending his removal from Hong Kong. There can be no dispute that the RO made against the Applicant is valid and extant.

38.  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).

39.  The starting point is that the period of detention to date is 107 days, against which the other factors must be weighed and balanced.

40.  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 long before the Detention and the continued liaison with CG to secure the RTD during the Detention. There were also numerous interviews with the Applicant in hope that he would express willingness to return to Pakistan. Therefore HS1 is satisfied.

41.  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 RTD from CG, the numerous interviews with the Applicant to seek his co-operation, and following up with the Court of First Instance following the hearing of the JR Leave Application.

42.  With no legal impediment to the Applicant’s removal and if the Applicant cooperates with the re-entry seeking arrangements, it is reasonable to think a RTD will be issued and his removal can be effected within a reasonable period. Insofar as the Applicant has refused and continues to refuse to cooperate with the re-entry seeking arrangements, 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.

43.  Whilst the Applicant submitted that he may take other legal proceedings, any detention prolonged by the Applicant’s delay and not promptly taking such steps, should not be regarded as unreasonable detention. Besides, any further legal proceedings do not constitute legal impediment to his removal under the Government’s prevailing removal policy.

44.  I also accept the Director’s assessment that with his past convictions of offences of a very serious nature, record of absconding, coupled with the Applicant’s stated unwillingness to return and lack of local ties, there is a real risk of the Applicant re-offending and/or 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 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.  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.

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

F.  Conclusion

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