Aamar Ali v. Immigration Department

HCAL 2834/2025

[2026] HKCFI 1691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2834 OF 2025

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DECISION

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1.   Introduction

1.1The Applicant is subject to a Removal Order and a Deportation Order respectively dated 20 May 2019 and 4 November 2025.  He has been held in immigration detention since 19 September 2025 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, he has been detained for 187 days.

1.2This is my decision of the Applicant’s application for a writ of habeas corpus made on 23 December 2025.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Mr Peter Wong, Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.   Background

2.1The Applicant is a Pakistani national.  On 28 December 2014, he was arrested by the police for illegal remaining.  He claimed to have entered Hong Kong illegally from the Mainland on 21 December 2014.

2.2Whilst on recognizance, the Applicant was convicted of a number of offences.  On 4 August 2016, he was fined HK$500 for his conviction of “Affixing bills or posters without permission”.  On 21 November 2018, he was sentenced to a total of 15 months’ imprisonment for his convictions of “Using an identity card relating to another person” and “Prohibition of taking employment”. 

2.3In terms of his local connections, the information submitted by the Applicant is not always consistent.  By his written declaration dated 21 October 2025, the Applicant stated that he was single and his family members were all in Pakistan.  In the written materials supporting the present application, the Applicant said that he in fact married Madam Knusniati (“Wife”) according to Islamic religious rites on 3 March 2024 and they were expecting a baby, a caesarian section was scheduled to be performed on 29 December 2025.  Wife is an Indonesia national and a domestic helper in Hong Kong.  The Immigration Department managed to contact Wife and was told on 30 January 2026 that she had given birth to the baby and Wife stated that she and the baby would willing to follow the Applicant’s return to Pakistan, but only after a few months once she has earned enough money.

2.4The Applicant does not have any absconding records.

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

3.1The Applicant’s NRC was rejected by the Director on 31 October 2018 and his subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 20 December 2019 (“TCAB Decision”).

3.2On 24 December 2019, the Applicant applied for leave to apply for judicial review against the TCAB Decision (HCAL 3850/2019), which application was refused on 12 May 2025.  His subsequent appeal to the Court of Appeal made on 19 May 2025 (CACV 300/2025) was dismissed on 19 January 2026. 

4.   The present detention and its reviews

4.1The Applicant’s detention may be segregated into the following periods:

(1)     From 19 September to 16 October 2025, under section 32(3A) of the Ordinance pending his removal under the Removal Order;

(2)     From 17 to 30 October 2025, under section 29(1) of the Ordinance pending inquiry as to whether a deportation order should be made;

(3)      Fron 31 October to 4 November 2025, under section 29(2) of the Ordinance pending inquiry as to whether a deportation should be made;

(4)     From 4 November 2025 until now, under section 32(3) of the Ordinance pending his removal under the Deportation Order.

4.2Throughout the present detention, the Applicant has persistently expressed his unwillingness to return to his home country and refused to render his cooperation in completing the reentry formalities.  As a result, the Immigration Department had to liaise with the Consulate General of the Islamic Republic of Pakistan (“CG”) to explore whether a travel document could be issued through alternative means (so far without any success).  Generally speaking, subject to the completion of the reentry formalities, a travel document can be issued in around one month’s time.

4.3In the latest review of the present detention conducted on 11 March 2026, the Applicant’s continued detention was considered to be justified by the following broad grounds:

(1)     The Applicant’s removal was going to be possible within a reasonable time;

(2)     The Applicant posed, or was likely to pose, a threat or security risk to the community;

(3)     The Applicant might abscond and/or (re)offend;

(4)     There were no other circumstances in favour of the Applicant’s release.

4.4In particular, the review of the present detention took into account (1) the status of the Applicant’s NRC, (2) the Applicant’s refusal to cooperate in completing the reentry formalities and (3) the Applicant’s unwillingness to return to his home country.  Further, consideration was given to the Applicant’s family situation including the recent birth of the baby and Wife’s health conditions, but such factor was considered not having the effect of outweighing the factors in support of his continued detention.

5.   The Applicant’s submissions

5.1The Applicant’s grounds in support of the present application set out in his written materials may be summarized as follows:

(1)     CACV 300/2025 was (then) ongoing;

(2)     He has no history of absconding;

(3)     He has a fixed place of abode and Wife is willing to act as surety;

(4)     Wife is suffering from various conditions, including low mood complicating her pregnancy due to financial stress and the Applicant’s detention;

(5)     He has further legal avenues to pursue in Hong Kong and is willing to depart Hong Kong after the resolution of his legal matters;

(6)     He claims that the Immigration Department’s letter dated 1 December 2025 (“Letter”), sent in reply to his solicitors’ letter of 17 November 2025, demonstrates that relevant considerations were not taken into account, including his local connection, his lack of absconding history, and his willingness to return to his home country upon his final resolution of legal proceedings;

(7)     Wife is required under her employment contract to resume duties after giving birth to the baby and he is the only person in Hong Kong to care for Wife and baby;

(8)     Generally, the continued detention is unlawful, unreasonable, disproportionate and inappropriate.

5.2At the hearing, the Applicant confirmed that the above matters represent an accurate summary of the grounds of his application.  The only additional ground was this: He pointed out that the baby has just been born and his presence in Hong Kong is required for the purpose of obtaining a number of relevant documents, for example a birth certificate.

6.   The applicable principles

6.1The 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.

6.2I 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.

6.3Under 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.

6.4The 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 ¬ß29(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."

6.5In particular, on the issue of a detainee's refusal to cooperate in completing reentry formalities, Johnson Benjamin §37 observed as follows:

"... 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…"

7.   Analysis

7.1Throughout the present detention, the Applicant is and has been detained pursuant to the identified sections of the Ordinance.  It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2The 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 187 days, against which the various other factors must be weighed and balanced.

7.3I accept that, throughout the period of detention, the intention of the Director/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/Secretary have acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  The foregoing is amply demonstrated by the fact that regular interviews were conducted to seek his cooperation in completing the reentry formalities and the efforts made by the Immigration with the CG for the purpose of seeking alternative means for the issuance of a travel document.

7.4Given the nature of the Applicant's previous convictions, I am prepared to proceed on the basis that the Applicant does not present a threat or security risk to the community.  As canvassed above, the Applicant only has two convictions of offences not associated with violence.  I also accord weight to the (lack of) frequency of his convictions and I consider his application in the light that the risk of (re)offending is on the low side, bearing in mind that he has stayed in Hong Kong since 2014.

7.5I am also persuaded that only limited weight should be attached to risk of absconding.  Even before he started a family, the Applicant did not have a history of absconding.  It is true that the Applicant is unwilling to return to his home country but this is counter-balanced by the fact that he now has a family and the information before me is that he has a meaningful and genuine relationship with Wife.  The Wife brought the baby with her to court today.  Although I did not invite her to speak, I paid attention to her and she came across as being genuinely saddened by and concerned with the Applicant’s detention.

7.6The matter which I place the most weight on is this: As at the commencement of the present detention, there was no legal impediment to the Applicant’s removal.  Any futher legal challenges against the TCAB Decision, by reason of the Updated Removal Policy, does not give rise to a legal impediment.  The only impediment was, and remains, a practical one, namely the need for a travel document to be issued to the Applicant and that process has been frustrated only by reason of the Applicant's refusal to cooperate to complete the reentry formalities.  Had he cooperated, the Applicant would have been released from detention (albeit in the form of removal from Hong Kong). Viewed thus, the length of the present detention is entirely self-induced and has been unnecessarily prolonged.

7.7The matter which has attracted the most anxious consideration is the Applicant’s family situation.  As much as I sympathize with the Applicant, the fact of the matter is that the Removal Order and the Deportation Order remain extant and enforceable.  At the time the Applicant decided to “marry” Wife in 2024, he plainly knew that he had entered Hong Kong illegally and the Removal Order had already been made.  He must have realized that there was a risk that he would be removed from Hong Kong in the event of his NRC not succeeding.  In that sense, the Applicant must be taken to have entered into the relationship (and the subsequent decision to have a child) with eyes wide open to the risk of removal.  In my view, any perceived care and company which the Applicant might provide to Wife and the baby cannot negate the Removal Order.  As has been stated at Harjang Singh §156:

“However, Ms Cheung is on stronger ground when she identifies that, when reviewing reasonableness in this case, the Judge did consider the Applicant’s family circumstances but decided to give it little weight, and it cannot be said that that is wrong in law. Ms Cheung is also correct to point out that the family circumstances might be considered to have little impact in this case, as the Applicant is being held pending deportation, namely to be removed from his family in Hong Kong anyway, so that the factor might be of little significance when weighed against matters overall.”

7.8In any event, any concern created by the family circumstances are ameliorated by Wife’s willingness to join the Applicant in his home country.  Proceeding on the basis of relocation, there is in fact even more reason that he should comply with the reentry formalities such that a travel document may be issued to him.  Were he to comply, there is the added benefit that he can return back to his home country to make advanced arrangements (accommodation or otherwise) for the intended relocation of Wife and the baby.

7.9Overall weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.   Conclusion

8.1By 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.  It seems to me that as long as the Applicant remains obdurate in refusing to complete the reentry formalities, any prolongation of the present detention is self-induced and cannot be regarded as unreasonable. Whether any indulgence will be granted to him after a travel document is issued to him (in the sense of a brief period of bail to enable him to reunite with Wife and the baby and to obtain the necessary documents for the baby daughter pending the arrangement of a repatriation flight) may then be reassessed under the then prevailing circumstances.

8.2I therefore dismiss the present application with no order as to costs.

The Applicant, acting in person

Mr Peter WONG, Government Counsel, of Department of Justice, for the Respondent