Hashmi Rizwan Imran v. Director of Immigration

HCAL 1429/2026

[2026] HKCFI 6060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1429 OF 2026

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BETWEEN

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DECISION

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A. Introduction

1.I have before me an application for writ of habeas corpus by the Applicant filed on 14 August 2026 (“the Application”) seeking his release from Tai Tam Gap Correctional Institution (“TGCI”) where he is currently being detained.  He has been detained since 13 June 2026 making the period of detention to date is 139 days (“the Detention”).

2.On 18 August 2026, I directed the named respondent to the Application to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.  A Response/Skeleton Submissions for the Respondent dated 22 October 2026 (“the Response”) has been lodged after an extension of time was granted to do so on 12 October 2026.  

3.In the Response, it was stated that the Response was prepared on behalf of the Director of Immigration (“Director”) and the Secretary for Security (“the Secretary”).  Given that it was the Secretary who authorised the power of detention of the Applicant under s.32(3) of the Immigration Ordinance, Cap. 115 (“IO”) and the Director who decides whether the Applicant should be released on recognizance and enforces the Deportation Order (“DO”) issued under s.20(1)(a) of the IO against the Applicant, the Director and the Secretary ought to be the proper respondents to the Application and should be treated as such.

4.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 two bundles of documents prepared by the Department of Justice (“DOJ”) acting on behalf of the Respondents.

5.This is my Decision having heard the oral submissions of the Applicant and Miss Lam, Government Counsel, appearing for the Respondents.

B.   Background

B1.  Immigration status and stay in HK

6.The Applicant is a Pakistani national, born on 30 September 1984.

7.On 19 July 2013, the Applicant was arrested by the Police for the suspected offence of illegal remaining.  He was referred to the Immigration Department (“ImmD”).  Upon enquiries, he claimed that he had sneaked into Hong Kong illegally on 13 July 2013.

8.On 20 August 2013, a removal order (“RO”) was issued against the Applicant under s.19(1)(b) of IO.  

9.On 8 October 2013, the Applicant was released on recognizance. 

10.On 23 December 2014, the Applicant was convicted of the offences of: (1) causing obstruction in a public place; and (2) hawking without a license, and was fined HK$500 and HK$450 respectively.

11.The Applicant failed to report recognizance on: (1) 29 August 2023 and only reported recognizance on 12 September 2023; and (2) 13 May 2025 and was arrested by the Police on 14 August 2025.

12.On 21 April 2026, the Applicant was convicted of the offences of: (1) taking employment while being a person in respect of whom a removal order is in force; (2) using an identity card relating to another person; and (3) theft, and was sentenced to a total of 15 months’ imprisonment. 

13.Upon discharge from prison on 13 June 2026, he was detained at TGCI until present.

14.On 5 August 2026, the DO was issued against the Applicant.

B2.  The Applicant’s torture claim, Non-refoulement claim (“NRC”) and related legal proceedings

15.On 23 July 2013, the Applicant lodged a torture claim.

16.On 24 August 2015 and 26 October 2016, the Applicant’s NRC was rejected by the Director on all applicable grounds (“the Director’s Decisions”).

17.On 7 September 2015, the Applicant lodged an appeal/petition against the Director’s Decisions to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office but this was dismissed on 13 February 2017 (“the Board’s Decision”).

18.On 3 October 2017, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”) but this was dismissed by the Court of First Instance on 16 March 2018 (“CFI Decision”).

19.On 28 March 2018, the Applicant lodged an appeal against the CFI’s Decision which was dismissed by the Court of Appeal on 26 July 2018 (“CA’s Decision”).

20.On 18 August 2020, the Applicant applied for leave to appeal to the Court of Final Appeal against CA’s Decision but was dismissed on 16 May 2025.

21.On 29 September 2026, the Applicant requested to make a subsequent claim (“SC Request”). 

22.On 9 October 2026, ImmD requested priority to be accorded to the SC Request and the Applicant was informed that he was required to submit further evidence and documents within 2 weeks.

B3.  Steps towards the removal of the Applicant

23.Even before the Detention, on 14 September 2015, ImmD wrote to the Consulate General of the Islamic Republic of Pakistan (“CG”) informing of the intended repatriation of the Applicant and seeking assistance to issue a replacement travel document (“RPD”) to the Applicant.  Further follow-up letters were issued by ImmD to CG on 27 January 2022, 25 October 2022, 20 October 2023 and 27 May 2026.

24.On 7 December 2020, CG verified the Applicant’s Pakistani citizenship.

25.In all the interviews conducted with the Applicant by the ImmD during the Detention (on 25 June 2026, 2 July 2026, 9 July 2026, 17 July 2026, 13 August 2026, 14 August 2026, 26 August 2026, 10 September 2026, 28 September 2026, 2 October 2026 and 7 October 2026), the Applicant expressed unwillingness to return and refused to cooperate with the re-entry formalities.  He was informed that his uncooperativeness would impede his removal and prolong his detention.

26.By letter dated 28 August 2026, the Director sought assistance from CG for alternative means to issue a travel document regardless of the Applicant’s uncooperative attitude.

27.On 10 September 2026, CG issued an emergency travel document (“ETD”) valid for 30 days to the Applicant.

28.On 15 October 2026, CG issued an ETD with validity extended to 15 April 2027 to the Applicant.

B4.  Review of Detention

29.In the latest review of detention conducted by the Secretary on 13 October 2026 and by the Director on 15 October 2026, it was considered that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  Given that priority has been accorded to the SC Request and upon disposal with a valid ETD, should he cooperate, the Applicant’s removal is going to be possible within a reasonable time;

(2)  The Applicant is the subject of a DO made on the basis of his convictions for serious offences, given his record of absconding on two occasions and unwillingness to return to Pakistan, and lack of local connections in Hong Kong, there is a real risk of re-offending and/or absconding if he was released; and

(3)  The Applicant’s claimed health concerns and the length of detention have been taken into consideration but on balance, release on recognizance is not warranted.

C.   The Applicant’s Submissions

30.In the Applicant’s Affirmation, which mainly rehearse legal principles and quotations clearly copied from other similar applications, so far as I can gather, the following submissions were made:

(1)  He wishes to stay in Hong Kong until all cases are finalized;

(2)  He will not go back to his home country until his problems are finished;

(3)  He had been released in the past so the grounds for not releasing him based on his past conviction and that he may pose a threat to community cannot be true;

(4)  It is not possible to remove him within a short reasonable period;

(5)  His health condition is getting worse.  He has chest and back pains.  He cannot sleep and see properly.  The units in TGCI are not comfortable, and the food and environment are not good;

(6)  The Detention is unnecessary, unreasonable and unlawful.

(7)  He promises to comply with the rules and conditions of the Director, will be law-abiding and not engage in illegal activities if released; and

(8)  He is willing to provide self-surety of HK$4,000 and report once a week.

31.At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further supplemented that the reason he did not report recognizance was because he was sick and in the hospital as he had submitted in writing to ImmD and paid HK$900.  He wishes to be released so that he can get proper treatment for his back and eyes.  He also says that he has done nothing wrong in the 12 years he stayed in Hong Kong and promise to be law-abiding. 

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

D.   Applicable Principles

33.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.

34.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.

35.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.

36.Moreover, the Court of Appeal 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.”

37.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

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

39.There is clear prima facie authority for the detention of the Applicant throughout the Detention: (1) from 13 June 2026 to 19 July 2026 under s.32(3A) of IO; (2) from 20 July 2026 to 2 August 2026 under s.29(1) of IO; (3) from 3 August 2026 to 5 August 2026 under s.29(2) of IO; and (4) from 5 August 2026 to present under s.32(3) of IO.  There can be no dispute that the RO and DO made against the Applicant are valid and extant. 

40.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).

41.The starting point is that the period of detention to date is 139 days, against which the other factors must be weighed and balanced.

42.I find 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.  I also take the view that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the Director’s pro-active efforts to seek issuance of a RTD to the Applicant from CG well before the Detention and the continued liaison with CG during the Detention to secure the ETD and its extension of validity, the numerous and frequent interviews with the Applicant in hope that he would express willingness to return to Pakistan and seeking to accord priority to the SC Request.  HS1 and HS4 are satisfied.

43.Given that the JR Leave Application has been dismissed and the SC Request does not constitute a legal impediment to his removal, with a valid ETD, once the SC Request is determined and if the Applicant cooperates, he can be removed within a reasonable time.

44.In so far as the Applicant has refused to cooperate with the re-entry seeking formalities, 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. 

45.I also accept the Secretary’s and Director’s assessments that with his past convictions of offences of a very serious nature which led to the issuance of the DO and history of absconding coupled with the Applicant’s stated unwillingness to return and lack of local connections, there is a real risk of the Applicant absconding and re-offending.  If he were to re-offend and/or abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO and DO.  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).

46.Although the Applicant says that his life is in danger in Pakistan, as has been stated and repeated in many previous decisions, an application for habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his application for habeas corpus will not look at the merits of such claim. 

47.In 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 has not and would not receive proper medical treatment whilst in detention, if required.  There is no evidence to suggest that the Applicant is medically unfit for continued detention.  See e.g. Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government (Unrep) HCAL 2428/2018, 6 November 2018, per Chow J (as he then was) at §27 and Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 at §30 per Coleman J (as he then was). 

48.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.

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

F.   Conclusion

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

The Applicant, appeared in person

Miss Celina Lam, Government Counsel of Department of Justice, for the Respondent