Hassan Naser Abdirahman v. Director of Immigration

HCAL 1555/2025

[2025] HKCFI 4422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1555 OF 2025

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D E C I S I O N

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1.Introduction

1.1The Applicant is subject to a Removal Order made on 11 July 2013. He has been held in immigration detention pursuant to section 32(3A) of the Immigration Ordinance Cap 115 since 8 October 2024. As at the date of the hearing before me, he has been detained for 347 days.

1.2This is my decision on the Applicant’s second application made on 8 July 2025 for a writ of habeas corpus (“Present Application”). His first application was made on 26 March 2025 (“First Application”) and dismissed by DHCJ Grace Chow on 8 May 2025 in HCAL 759/2025[1] (“Previous Decision”). By the Previous Decision, the learned Judge held that the period of detention from 8 October 2024 to 8 May 2025 was lawful.

1.3At the hearing, the Applicant appeared in person with the benefit of an interpreter. Ms Linda Lam, Government Counsel, appeared for the Director of Immigration (“Director”).

2.Background

2.1The Present Application was initiated just over 2 months after the Previous Decision. The relevant background has been set out in the Previous Decision. In summary:

(1)  The Applicant is a Somali national. On 8 May 2013, he, being undocumented, presented for arrival clearance at the China Ferry Terminal and was refused permission to land in Hong Kong;

(2)  Whilst on recognizance, the Applicant was convicted of 7 counts of various offences involving either dishonesty or violence: Previous Decision §9;

(3)  Between 2016 and 2024, the Applicant failed to report recognizance on 6 occasions and jumped bail on 2 separate occasions: Previous Decision §10;

(4)  He has a wife and a 7-year old daughter who are both permanent residents in Hong Kong. The Applicant informed the Immigration Department on 1 April 2025 that his wife and daughter were in Thailand and they had not been in contact for 4 months;

2.2The history and progress of the Applicant’s non-refoulement claim (“NRC”) and related proceedings have been summarized at Previous Decision §§11-14 which I will adopt and not repeat here. It is only necessary to provide the following updates:

(1)  The Applicant’s out-of-time application to the Court of Appeal to challenge the dismissal of the JR Leave Application referred to at Previous Decision §14 remains extant. As has been pointed out at Previous Decision §32, by reason of the Updated Removal Policy, following the dismissal of the JR Leave Application on 1 September 2022, there was no longer any legal impediment to the removal even when there are outstanding challenges pending at the Court of Appeal;

(2)  On 30 August 2025, the Applicant lodged a subsequent claim request (“SC Request”). As has been pointed out in previous cases, the SC Request does not give rise to a legal impediment to the Applicant’s removal: Mohammed Afsar Ali v Hong Kong SAR Government [2025] HKCFI 3840 §8.4.

3.Present detention and its reviews

3.1The pertinent matters relating to the present detention up to 8 May 2025 have been set out at Previous Decision §§11-18. It bears emphasis that the Immigration Department had since 24 July 2013 liaised with the Embassy of the Federal Republic of Somalia in Beijing (“Embassy”) to issue a travel document to the Applicant.

3.2On 26 July 2013, the Embassy confirmed the personal particulars provided by the Applicant and that he was a citizen from Somali. However, during subsequent interviews with the Applicant, both before and after the present detention commenced, he expressed his unwillingness to fill in the application form for a Somali passport or to attend re-entry interviews with the Embassy.

3.3Despite the Applicant’s non-cooperation, the Immigration Department sent emails and chasers to the Embassy seeking their assistance in issuing the Applicant a replacement travel document or alternative means to issue a travel document. The Immigration Department was informed that for the issuance of an emergency travel document, the Applicant is required to complete reentry seeking formalities. Subject to the Applicant’s cooperation in completing the reentry seeking formalities, it is anticipated a travel document can be issued in around 1 month.

3.4The above situation has remained the same since the Previous Decision. The Applicant has continued to refuse to cooperate in completing the reentry formalities.

3.5The Applicant’s detention was last reviewed on 4 September 2025, which review has taken into account the most recent development, namely the SC Request. It was considered that the release of the Applicant on recognizance was not warranted for the following broad reasons:

(1)  There was no longer any legal impediment to the Applicant’s removal and the SC Request will be accorded priority and is expected to be resolved within 8 weeks;

(2)  The Applicant had persistently been uncooperative in refusing to complete necessary reentry formalities and his self-inflicted obstacle cannot render the present detention unlawful;

(3)  There was a real and substantial risk of reoffending and he posed or was likely to pose threat to the local community;

(4)  The risk of absconding was significant and real, as supported by the previous absconding records and his unwillingness to return to his home country;

(5)  The Applicant’s local familial connection has been taken into account but such factor did not outweigh the factors against his release.

4.The Applicant’s submissions

4.1In his written materials, the Applicant puts forward the following grounds:

(1)  His removal is not possible within a reasonable time given that his challenge against the dismissal of the JR Leave Application remains extant and he has now made the SC Request;

(2)  The length of the detention has become unreasonable;

(3)  He has familial connections in Hong Kong and he needs to take care of his daughter;

(4)  He fears for his own safety if repatriated;

(5)  He undertakes not to commit any offence;

(6)  He now understands the gravity of failing to report recognizance and promises to comply with recognizance conditions;

(7)  The Director has not taken active steps to effect his removal and he is of the view that a travel document cannot be issued by the Embassy within a reasonable time;

(8)  The detention has adversely affected his psychological and physical health, and in particular, his swollen feet has not responded to treatments prescribed;

(9)  He has disclosed his health issue and filed a complaint during a recent Justice of the Peace visit.

4.2At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of his application. He supplemented as follows: (1) He has in fact contacted the Embassy in July or August 2025 and told the Embassy that he needed to obtain a travel document, (2) He had told the welfare officer at the detention centre of his willingness to comply with the reentry formalities and (3) he was seldomly contacted by the Immigration Department since the Previous Decision and was not asked whether he was willing to return to his home country.

4.3Apart from the matters he supplemented at the hearing, many of the above grounds were urged upon and rejected by DHCJ Grace Chow in the course of the First Application.

5.The applicable principles

5.1The 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.

5.2I remind myself that the burden is on the Respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

5.3Under 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.

5.4The 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."

6.Analysis

6.1During the present detention, the Applicant is and has been pursuant to section 32(3A) of the Ordinance. It follows therefore that there has been prima facie lawful authority to detain the Applicant.

6.2The 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 347 days, against which the various other factors must be weighed and balanced.

6.3I accept that, throughout the period of detention, the intention of the Director is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied.

6.4I also accept that the Director has acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. As matters presently stand, the only impediment to the Applicant’s removal is a practical one. I accept Ms Lam’s submissions that the evidence shows that the Director has diligently reached out to the Embassy for the issuance of a travel document both before and after the commencement of the present detention, which efforts have plainly been frustrated by the Applicant’s own refusal to cooperate in completing the re-entry formalities. I do not accept the Applicant’s assertion that he has told the Embassy or a welfare officer that he is willing to comply with the reentry formalities. The suggestion that he has informed the Immigration Department that he is willing to comply with the reentry formalities is contrary to the content of his written materials, which only stated his contact with the Embassy was to show that the Director could not remove him within a reasonable time. Further and in any event, the claim that he told a welfare officer of his willingness to comply with reentry formalities is inconsistent with the documentary materials before me.

6.5Concurrent with the practical impediment identified above, it is my understanding that the Applicant will not be removed pending the resolution of the SC Request. As has been stated at Eni Carini v Hong Kong SAR Government [2025] HKCFI 3699 §7.7, the decision to temporarily withhold the removal of the Applicant pending the resolution of the SC Request is a discretion exercised out of indulgence and for the benefit of the Applicant, (2) in particular, the exercise of the discretion in that particular way is not inconsistent with the power conferred under the Ordinance that the Applicant is still being detained pending his removal and (3) whether the period of detention is reasonable is a separate matter to be decided based on the Hardial Singh principles and is a fact-sensitive exercise.

6.6Throughout the present detention, the above lack of a travel document has been the only impediment to the Applicant’s removal. Viewed thus, the practical impediment has all along been self-induced by the Applicant himself. Even proceeding on the Applicant’s own erroneous view that there exists a legal impediment by reason of the extant court proceedings in the Court of Appeal and/or the SC Request, as set out in Johnson Benjamin §37:

“Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba) are necessarily correct. In our view, even if there is an ongoing non‑refoulement claim, 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 non-refoulement claim is disposed of. In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.”

6.7As has been set out at Harjang §164(14), the weight attributable to the risks of (re) offending and absconding may erode as his detention lengthens. In my view, the additional period of detention since the Previous Decision does not affect DHCJ Grace Chow’s assessment that there are real risks of the Applicant absconding and/or (re)offending, which risks are of critical and paramount importance in the assessment of the lawfulness of the detention. First, the Present Application was taken out only shortly after the Previous Decision. Secondly, the concerns raised by the Applicant’s previous conviction and absconding records have not been ameliorated by the additional period of detention, especially, in relation to the risk of absconding, the continued obstruction on the Applicant’s part in refusing to complete the reentry formalities.

6.8As to the Applicant’s reliance familial connections in Hong Kong and his claim that there is a need to take care of the young daughter, I agree with Ms Lam’s submission that, based on the available records, the Applicant’s alleged closeness to the family is suspect. First, on 21 February 2019, the Applicant’s wife withdrew the Applicant’s dependant visa application. Secondly, on 1 April 2025, the Applicant himself told the Immigration Department that he had not been in touch with the family for over 4 months, which claim he sought retract at an interview on 4 September 2025.

6.9The Applicant explained in court that his wife did not attend court today because of her work commitments. But when asked by the court, he accepts that his wife has not even written a letter to show that she is willing to allow the Applicant to reside with her if released.

6.10In 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 eg Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government, HCAL 2428/2018, 6 November 2018 at §27.

6.11As 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 assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

6.12Overall weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

7.Conclusion

7.1By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention has been and will remain lawful.

7.2I therefore dismiss the Present Application with no order as to costs. However, I wish the Applicant to note that any further application (especially as here made within a short period following an unsuccessful application) , unless made with a good reason or based on a material change in circumstances, may attract costs consequences.

The Applicant, acting in person

Ms Linda LAM, Government Counsel, of Department of Justice, for the Respondent