ABUZAR v. IMMIGRATION DEPARTMENT

HCAL 2001/2023

[2023] HKCFI 3338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2001 OF 2023

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DECISION

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1.   Introduction

1.1   The Applicant is subject to a Removal Order (“RO”) and a Deportation Order (“DO”) respectively made on 13 December 2019 and 22 November 2023. He has been held in immigration detention since 22 September 2023 pursuant to various sections of the Immigration Ordinance (“Ordinance”). As at the date of the hearing before me, the Applicant has been detained for a period of 91 days.

1.2   On 9 November 2023, the Applicant applied for a writ of habeas corpus. Directions were thereafter given for the Respondent to file an initial response.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter, and the Respondent was represented by Ms Angel Zhi, Government Counsel, who also signed the initial response.  For avoidance of doubt, whilst the Applicant’s application is made only against the Immigration Department, part of his detention was authorized by the Secretary for Security (“Secretary”).  Ms Zhi confirmed that the initial response was lodged, and she appeared, also for the Secretary and I proceed on that basis.

2.   Background

2.1   The Applicant is a Pakistani national.  On 5 November 2019, he surrendered to the Immigration Department as a suspected illegal immigrant.  At an interview conducted by the Immigration Department on 19 November 2019, the Applicant claimed to have entered Hong Kong illegally on 28 October 2019 and indicated his intention to lodge a non-refoulement claim (“NRC”).  He was released on recognizance on the same day.

2.2   On 21 September 2022, the Applicant was arrested by the police and was later convicted on 28 March 2023 of taking employment while being a person in respect of whom a removal order was in force and sentenced to 18 months’ imprisonment.

2.3   The present detention commenced on 22 September 2023 following the Applicant’s discharge from prison.

(1)  From 22 September to 14 November 2023, the Applicant was detained under section 32(3A) of the Ordinance pending his removal from Hong Kong under the RO.

(2)  From 15 to 22 November 2023, the Applicant was detained under section 29(1) of the Ordinance for the purpose of making inquiry as to whether the Applicant ought to be deported under section 20 of the Ordinance.

(3)  From 22 November 2023 onwards, the Applicant has been detained under section 32(3) of the Ordinance pending his removal from Hong Kong under the DO.

2.4   The Applicant has no family ties in Hong Kong.  However, the Applicant has offered a friend (a Hong Kong resident) by the name of Sajid to act as a guarantor, which offer has been verified by the Immigration Department to be genuine.

3.   The Applicant’s NRC and related proceedings

3.1   In late 2019, the Applicant raised a NRC.

3.2   The Applicant’s NRC was rejected by the Director of Immigration (“Director”) on 20 May 2020.

3.3   The Applicant subsequently made an appeal/petition to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“TCAB”) against the decision of the Director.  On 5 February 2021, TCAB dismissed the Applicant’s appeal/petition (“TCAB’s Decision”).

3.4   On 1 March 2021, the Applicant’s applied for leave to apply for judicial review against TCAB’s Decision (HCAL 255/2021).

3.5   Following the commencement of the Applicant’s present detention, on 20 October 2023, the Department of Justice requested the Registrar of the High Court to accord priority to HCAL 255/2021.

3.6   The hearing of HCAL 255/2021 took place on 5 December 2023.  Judgment was expected to be handed down within 4 weeks from the hearing.  In fact, DHCJ Bruno Chan handed down his Decision on 18 December 2023 ([2023] HKCFI 3294)), a copy of which was placed before me at the hearing.

4.   Current detention and its reviews

4.1   Throughout the present detention, the Applicant expressed his unwillingness to return to Pakistan.  His passport expired on 3 December 2023 and he has refused to render his cooperation to comply with reentry formalities.

4.2   In the latest assessment of the Applicant’s detention conducted on 22 November 2023, the broad grounds for his detention were stated to be (1) his removal is going to be possible within a reasonable time, (2) he poses or is likely to pose, a threat or security risk to the community, (3) he may abscond and/or (re)offend, (4) he does not have close connection or fixed abode in Hong Kong and (5) there are no other circumstances in favour of his release.

5.   The applicable principles

5.1   The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781.  I have in particular borne in mind the summary set out at §164 thereof.

5.2   I 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. 

5.3   Further, 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.  The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

6.   The Applicant’s submissions

6.1   The Applicant’s submissions, in so far as they may be gleaned from his written materials, may be summarized as follows:

(1)  The period of his detention has become unreasonable since deportation cannot be effected within a reasonable time, in particular when HCAL 255/2021 has yet to be determined.

(2)  He fears for his own safety, if repatriated.

(3)  He has never absconded and he is truly remorseful for the only offence which he had committed. 

(4)  His detention has caused his health to deteriorate and his previous foot injury is making moving about in the facilities very difficult as there are a lot of stairs at the Tai Tam Gap Correctional Institution (“TTGCI”).

(5)  He feels that his privacy is intruded upon, as, during detention, he has to wear an electronic tagging device and is under constant CCTV surveillance. He also regards the place at which he is detained congested.

(6)  He has offered a guarantor.

6.2   At the hearing, the Applicant confirmed his reliance on the matters set out at the preceding paragraph, and emphasized that he has been detained for an extended period and that he has already served a lengthy sentence for his conviction.  He also confirmed his understanding that HCAL 255/2021 has now been dismissed.

7.   Analysis

7.1   Throughout the Applicant’s detention period, there has been prima facie lawful authority to detain the Applicant pursuant to various sections of the Ordinance cited at §2.3 above.

7.2   The question which falls for determination is therefore whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 91 days, against which the various other factors must be weighed and balanced.

7.3   I 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.  Indeed, the Applicant accepts the foregoing to be the case.

7.4   I also accept that the Director (and the Secretary) have acted with diligence and expedition to effect the Applicant’s removal.  This is amply demonstrated by arrangements made for the issuance of a travel document and to obtain priority for the resolution of HCAL 255/2021.  HS4 is satisfied.

7.5   Although there was a legal impediment to removal at the time of the commencement of his present detention, I had considered TCAB’s Decision which set out a very detailed analysis justifying its refusal of the Applicant’s claim.  It did not appear to me that the merits of HCAL 255/2021 could be characterized as strong and it was not unreasonable for the Applicant to be detained whilst efforts were made, as in the present case, to expedite its resolution.  Had the Applicant been successful in HCAL 255/2021, his continued detention no doubt would be reassessed in that light.  In any event, HCAL 255/2021 been decided against the Applicant and any legal impediment has now been removed by reason of the Updated Removal Policy.  As regards the practical impediment created by the lack of a valid travel document, this is caused by the Applicant’s own unwillingness to cooperate, but for which, a replacement travel document would be issued within 2 to 3 weeks.

7.6   I accept Ms Zhi’s submission that taking into account the Applicant’s strong unwillingness to return to Pakistan, the risk of absconding cannot be discounted.  Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.  I do not believe the offer of Sajid (who is merely a friend and did not attend the hearing) as a guarantor materially alters that assessment. 

7.7   I acknowledge that the nature and gravity of the Applicant’s previous convictions is not such to create a significant threat or security risk to the community.  However, it does signify that Applicant’s lack of regard to the need to comply with the law and the risk of reoffending is real.

7.8   In so far as the Applicant seeks to justify his uncooperative attitude by reason of the fear for his own safety if repatriated, it is an attempt to reassert the concerns underpinning his NRC, and as stated above, the court in his habeas corpus application will not look at the merits of any such claim.

7.9   I do not believe any or any significant weight should be attached to the Applicant’s alleged health issues, complaints of loss of privacy and congestion.

(1)  As to the Applicant’s alleged health issues, the Applicant confirmed at the hearing that they were raised to the relevant personnel and he did received medical attention during his present detention.  I have no doubt that his health issues were attended to or dealt with appropriately. 

(2)  As regards the Applicant’s complaint of loss of privacy, as submitted by Ms Zhi, the electronic tagging device is a detainee’s proof of identity and a security device at TTGCI.  In fact, if a detainee encounters any emergency, he may press the emergency button of the tagging device to seek immediate assistance from the staff on duty.  The CCTV system does not cover any locations at which privacy is expected (eg bathrooms) and plays an important role of maintaining security and protecting safety of detainees.  The allegation that TTGCI is congested is subjective.  I accept Ms Zhi’s submission that the maximum capacity of TTGCI was professionally determined and there is no evidence to show that the maximum capacity has been exceeded.

7.10  For the above reasons, HS2 and HS3 are also satisfied.

8.   Conclusion

8.1   I am satisfied that the Applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2   As a result, the Applicant’s application is dismissed with no order as to costs.