Yaser Shaikh v. Immigration Department and Another

HCAL 1024/2026

[2026] HKCFI 4842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1024 OF 2026

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BETWEEN

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DECISION

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1.  Introduction

1.1The Applicant is subject to a Removal Order made on 12 November 2015.  He has been held in immigration detention since 25 February 2026 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 181 days.

1.2This is my decision on the Applicant’s application for a writ of habeas corpus made on 4 June 2026.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Mr Sam Kam, Government Counsel, appeared for the Director of Immigration (“Director”).

2.  Background

2.1The Applicant is an Indian national.  On 5 April 2014, he entered Hong Kong on the strength of his passport (valid until 28 June 2020) and was permitted to remain as a visitor until 19 April 2014.  He has overstayed in Hong Kong since 20 April 2014.

2.2On 3 September 2014, the Applicant surrendered to the Immigration Department and was released on recognizance on the same day.

2.3The Applicant failed to report recognizance on 30 October 2025 and was arrested by the police on 23 February 2026.  As noted above, the present detention commenced on 25 February 2026.

2.4The Applicant has no family ties in Hong Kong.

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

3.1The Applicant’s NRC was rejected by the Director on 21 November 2018 and his subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 4 March 2020 (“TCAB Decision”).

3.2The Applicant thereafter commenced HCAL 340/2020 for leave to apply for judicial review against the TCAB Decision.  HCAL 340/2020 was dismissed by the Court of First Instance on 2 July 2025 (“CFI Decision”).

3.3The Applicant’s subsequent challenge against the CFI Decision to the Court of Appeal was successful, as his appeal by way of CACV 466/2025 was dismissed on 12 February 2026.

3.4On 29 July 2026, the Applicant requested to make a subsequent claim (“SC Request”), which request was refused by the Director on 5 August 2026.

4.  The present detention and its reviews

4.1Even prior to the commencement of the present detention, efforts were made to remove the Applicant from Hong Kong.

4.2On 16 October 2025, an emergency travel document valid until 15 April 2026 (“ETD”) was issued by the Consulate General of India (“CG”) to the Applicant.

4.3Following the commencement of the present detention, a number of interviews were conducted with the Applicant, at which he was adamant that he did not wish to return to his home country.

4.4As there was no legal or practical impediment to the Applicant’s removal, a repatriation operation was scheduled to take place on 13 April 2026 before the expiry of the ETD.  However, due to the Applicant’s emotional refusal to leave Hong Kong and to proceed to the airport, the operation had to be aborted as his behaviour had become unpredictable and posed a potential threat to the public.

4.5Following the expiry of the ETD, the Applicant has since refused to cooperate in completing the reentry formalities for a further travel document to be issued and reiterated his unwillingness to return to his home country.  Despite the efforts made by the Immigration Department since May 2026 in seeking alternative means for a further travel document to be issued to the Applicant, the CG has thus far declined to do so.

4.6In the latest review of the Applicant’s detention conducted on 24 July 2026, the Applicant’s continued detention was considered to be warranted by reason of the following broad grounds:

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

(2)  There was no legal impediment to his removal by reason of the Updated Removal Policy;

(3)  The Applicant might abscond;

(4)  The Applicant had directly or indirectly prevented or delayed his removal;

(5)  The Applicant did not have a fixed abode or close connection in Hong Kong.

5.  The Applicant’s submissions

5.1The grounds set out in the Applicant’s written materials may be summarized as follows:

(1)  He fears for his own safety if he is returned to his home country and that was the reason for his failure to report recognizance in October 2025;

(2)  He suffers from mental torture as the Immigration Department keeps pressuring him to return to his home country and even put in place the repatriation arrangement in April 2026 against his wish;

(3)  The food at the detention centre is of “very low quality”;

(4)  His complaints to the superintendent or senior officer were not addressed and he was discouraged from making further complaints;

(5)  The period of detention has become unreasonable;

(6)  His detention is arbitrary, put in place to protect the public which is not a proper purpose;

(7)  He has never committed any serious crimes in Hong Kong;

(8)  His removal is not going to be possible within a reasonable time;

(9)  He has a friend who is a Hong Kong resident who is willing to act as his guarantor;

(10)  He can further appeal to the Court of Final Appeal and has the right to request to make a subsequent claim;

(11)  He promises to comply with recognizance conditions, including reporting conditions if released.

5.2At the hearing, the Applicant confirmed the accuracy of the above summary.  He supplemented as follows.  He informed me that he suffers from acid reflux and heartburn caused by the poor food quality and is required to take medication every night.  He also added that he has pain in his left leg for which he is only repeatedly given Panadol which does not improve his conditions.  He also asked for time to sort out his problems in his home country and reiterated he has a guarantor and his promise that he will comply for all recognizance conditions.

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 Respondent 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 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.”

6.5In 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…”

7.  Analysis

7.1During the present detention, the Applicant is and has been detained pursuant to the section 32(3A) of the Ordinance.  It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.  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 181 days, against which the various other factors must be weighed and balanced.

7.2I accept that, throughout the period of detention, the intention of the Director 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 has acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  The foregoing is amply demonstrated by, chronologically (1) the scheduling of the repatriation operation in April 2026 which was shortly after the commencement of the present detention, (2) the efforts made for the issuance of a travel document following the of the abortive repatriation operation and the expiry of the ETD and (3) the speedy resolution of the SC Request which, in any event, did not give rise to a legal impediment until the request is granted.

7.3As 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.

7.4The Applicant does not have a criminal record and I accept that he does not pose a threat or security risk to the community.

7.5I do not place weight on the Applicant’s complaints regarding the quality of the food provided at the detention centre.  As pointed out by Mr Kam, during unannounced visits to the detention centre by the Justice of the Peace, all arrangements, including meal, sanitation and hygiene, dormitory and medical treatment have been assessed as satisfactory.

7.6I also do not place weight on the Applicant’s complaint regarding the mental torture (allegedly) caused by being pressured to return to his home country.  First, as a matter of record, no such complaints were made.  Secondly, being asked to cooperate to return to his home country against his wish when he has no entitlement to stay in Hong Kong as a result of the extant Removal Order cannot be considered mental torture.  Thirdly, insofar as the Applicant claims that his health has suffered as a result, the Applicant's medical conditions do not have the effect of altering her continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.7In relation to the last point made in the preceding paragraph, Mr Kam has additionally informed me that the conditions of acid reflux, heartburn and lag pain had not been raised before. In any event, the point that his medical conditions do not have the effect of altering her continued and lawful detention to become unlawful is repeated.

7.8Importantly, I accept the Mr Kam’s submission that considerable weight should be given to the assessment of the risk of absconding, given the Applicant’s lack of local ties, his previous history of failing to report recognizance and his professed unwillingness to return to his home country.  Indeed, this stands to reason on the Applicant’s own submission, as the justification for his failure to report recognizance in February 2026 was due to his fear for his own safety if repatriated, a view which he still holds.  In these circumstances, I am of the view that the offer of a friend as guarantor does not ameliorate the risk of absconding, which risk, if materializes, would defeat the purpose for which the power for detention is conferred.

7.9Equally important is the fact that the duration of the present detention has lengthened as a result of the Applicant’s own action.  Had he cooperated, he would have been released in April 2026 albeit in the form of repatriation to his home country.  Following the abortive repatriation operation in April 2026, his removal has been prevented from his own unwillingness to cooperate in completing the reentry formalities.

7.10Overall, 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.  I wish to impress upon the Applicant that flatly refusing to cooperate in completing the reentry formalities is unavailing, as any consequential inability to remove him due to that practical impediment is entirely self-induced.

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

The Applicant, acting in person

Mr Sam Kam (Government Counsel), of Department of Justice, for the Respondents