MAROOF ASHAR v. DIRECTOR OF IMMIGRATION AND ANOTHER

MAROOF ASHAR v. DIRECTOR OF IMMIGRATION AND ANOTHER

Detention that was originally lawful became unreasonable and therefore unlawful because a foreseeable legal impediment (pending TCAB decision and subsequent judicial review plus departmental policy not to remove until JR determined) made removal unlikely within a reasonable period (HS2 and HS3 unmet) despite Director's diligence; habeas corpus granted and Applicant released on recognizance with conditions.

Citation
[2024] HKCFI 2030
Parties
Applicant: Maroof Ashar; 1st Respondent: Director of Immigration; 2nd Respondent: Secretary for Security
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 August 2024
Case Number
HCAL884/2024
Procedural Posture
Habeas Corpus (constitutional and Administrative Law) / Application for Writ of Habeas Corpus; Hearing and Reasons for Judgment (application Allowed)
Outcome
Application allowed; writ of habeas corpus granted; recognizance ordered
Legal Topics
Non Refoulement, Detention, Habeas Corpus, Removal Order, Judicial Review, Hardial Singh Principles, Recognizance
Source Language
EN
Immigration Law Constitutional Law Administrative Law Criminal Law Non Refoulement Detention Habeas Corpus Removal Order +3 more

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Parties

Maroof Ashar

Applicant

Director of Immigration

1st Respondent

Secretary for Security

2nd Respondent

Procedural Posture

Habeas Corpus (constitutional and Administrative Law) / Application for Writ of Habeas Corpus; Hearing and Reasons for Judgment (application Allowed)

Legal Issues

  1. 1 Whether continued detention pending removal remained lawful or became unreasonable
  2. 2 Whether pending judicial review and departmental policy constituted a legal impediment to removal
  3. 3 Whether the Director acted with reasonable diligence in pursuing removal

Ratio Decidendi

Detention that was originally lawful became unreasonable and therefore unlawful because a foreseeable legal impediment (pending TCAB decision and subsequent judicial review plus departmental policy not to remove until JR determined) made removal unlikely within a reasonable period (HS2 and HS3 unmet) despite Director's diligence; habeas corpus granted and Applicant released on recognizance with conditions.

Court Disposition

Application allowed; writ of habeas corpus granted; recognizance ordered

Orders

  • Writ of habeas corpus granted and Applicant to be released on recognizance subject to conditions
  • Applicant to cooperate in applying for a renewal or extension of his passport by completing all applications and formalities and attending the Consulate of the Islamic Republic of Pakistan; Applicant to authorize the Immigration Department to collect such renewal or extension or replacement passport; Immigration...