ABID SAEED v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 177/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 177 OF 2011

(ON APPEAL FROM HCAL NO. 70 OF 2011)

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J U D G M E N T

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Hon Tang VP:

1. I have had the advantage of reading the judgment of Hartmann JA in draft. I agree with it and have nothing to add.

Hon Cheung JA:

2. I agree.

Hon Hartmann JA:

Introduction

3. The appellant is a Pakistani national.  In October 2006, he entered Hong Kong illegally.  He was arrested and, pending his removal, was placed into administrative detention.

4. A few days later he made a claim under the United Nations Convention Against Torture, an international instrument extended to Hong Kong.  Art. 3 of the Convention provides that a person shall not be removed to a country when there are substantial grounds for believing that, if so removed, he would be in danger of being tortured.

5. The claim having been made, it fell to the competent Hong Kong authorities to engage in a process of investigation to determine whether there were substantial grounds for believing that, if returned to Pakistan, the appellant would be subject to torture.

6. The process of investigation is invariably lengthy due both to the inherent difficulties of obtaining all relevant information and to the number of torture claimants whose claims at this time fall for consideration.

7. The appellant remained in administrative detention for more than three months while his claim was processed but was then released on recognisance.

8. It was only in January 2011 that the appellant’s claim was finally determined.  The claim was refused.  The appellant appealed to the Chief Executive but that appeal was dismissed.

9. In addition to his claim made under the Convention, the appellant also made a claim to the United Nations High Commission For Refugees to be accorded refugee status.  That claim was refused.

10. In the result, on 25 February 2011, the Director of Immigration served written notice on the appellant to inform him that, having landed illegally in Hong Kong, he was now to be removed.  The appellant appealed that decision to the Immigration Appeal Tribunal.  That appeal was dismissed.

11. On 11 March 2011, the appellant was returned to administrative detention pending his removal from Hong Kong.

12. While in detention pending his removal, the appellant sought to reopen both his claim under the Convention Against Torture and his claim for refugee status.  He was again unsuccessful.  Further delay was occasioned by the appellant’s refusal to assist in the renewal of his Pakistani passport.

13. On 23 August 2011, while still in detention pending his removal, the appellant filed a notice of application for leave to apply for judicial review.  The application sought to challenge the lawfulness of the removal order and the appellant’s continued detention.

14. In a judgment dated 29 August 2011, Lam J dismissed the application for leave on the basis that it presented no reasonable prospect of success.  It is in respect of that dismissal that the appellant now comes before us.

15. Before looking to his individual grounds of appeal, it should be said that in early May of this year the appellant was released from custody on recognisance.  Accordingly, when he appeared before us to argue his appeal, he was no longer in administrative detention.

The first ground of appeal: the lawfulness of the removal order

16. As best as I am able to comprehend it, the appellant has advanced two arguments as to why the removal order of 25 February 2011 is unlawful.

17. His first argument is that the removal order has a statutory life of just 28 days unless extended by court order and was not so extended.  In the result, there is not at this time any lawful removal order in place.

18. In his judgment at first instance, Lam J described this argument as being ‘entirely misconceived’.  I agree.

19. The statutory scheme to which the appellant remains subject may be described as follows.

20. S. 19(1)(b)(ii) of the Immigration Ordinance, Cap 115, gives the power to the Director of Immigration to order the removal of a person from Hong Kong if it appears to him that the person has entered Hong Kong unlawfully.  The removal order served on the appellant stated that it was issued pursuant to s. 19(1)(b).  The removal order was not made pursuant to any additional section of the Ordinance.

21. S. 19(1)(b) places no time limit on the validity of a removal order issued pursuant to it.

22. As to the power to detain a person upon whom a removal order has been served, s. 32(3A) of the Ordinance provides that:

“A person in respect of whom a removal order under s. 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.”

23. S. 25 is concerned with the manner in which removal orders may be executed.

24. S. 32(3A) is to be read in conjunction with s. 32(4A) which provides that:

“The detention of a person under this section shall not be unlawful by reason of the period of detention if that period is reasonable having regard to all the circumstances affecting that person’s detention including, in the case of a person being detained pending his removal from Hong Kong –

(a) The extent to which it is possible to make arrangements to effect his removal; and

(b) Whether or not the person has declined arrangements made or proposed for his removal.”

25. S. 32(4A), as worded, would be otiose if removal orders were themselves subject to a limited statutory period of validity.

26. The argument advanced by the appellant to the effect that the removal order served upon him has a limited statutory life (this argument being originally advanced in his notice of application for leave to apply for judicial review) appears to be based on the wording of s. 32(4)(a) which provides that:

“… a person… in respect of whom a removal order or a deportation order is in force may be detained –

(a) under the authority of the Secretary for Security for not more than 28 days; and

(b) by order of a court on the application of the Secretary for Justice for further periods, not exceeding 21 days upon any one application,

for the purpose of giving evidence at the trial of any offence or of facilitating inquiries into any offence or suspected offence.”

27. S. 32(4)(a) is therefore of limited applicability.  It permits the continued detention of a person in Hong Kong who would otherwise be removed from the Territory if that is necessary for the purpose of any criminal investigation or giving evidence at a criminal trial.  There is however no suggestion that the applicant’s detention was (at any time) for either purpose. The section therefore has no application to the appellant.

28. The appellant’s second argument appears to be based on the contention that the removal order of 25 February 2011 should have been served upon him within two months of his original apprehension in late 2006 and at no later date.

29. The appellant has advanced this requirement on the basis that, when held in administrative detention in 2006, he was held for a time pursuant to s. 32(1)(a), a section which refers back to s. 18 of the Ordinance.  S. 18 directs that, if a person has been examined by an immigration officer (pursuant to s. 4(1)(a) of the Ordinance) and, as a result, has been refused permission to land in Hong Kong, then he may be removed (by an immigration officer or chief immigration officer) provided that the removal takes place within two months of the person’s entry into Hong Kong.  What is provided for in s. 18 is what may be described as a form of ‘summary’ removal that may be carried out under the authority of relatively junior officers.

30. But a failure to remove a person pursuant to s. 18 within two months does not act as a permanent bar against later removal.  The Director of Immigration retains the power to remove a person who could have been removed under s. 18 if the two month time limit had not expired: see s. 19(1)(b)(i). In addition, the Director is given the broader power to remove a person who, no matter what the basis of his original detention, appears to him to have entered Hong Kong illegally: this being the power conferred by s. 19(1)(b)(ii), the section under which the removal order was served on the appellant.

31. It has never been suggested that the appellant entered Hong Kong lawfully.  Nor has it been suggested that his unlawful entry was in some manner thereafter rendered lawful.  The appellant was allowed to remain unlawfully in Hong Kong for one reason only: to allow his claims for asylum to be finally determined.

32. Accordingly, we are satisfied that the removal order issued pursuant to s. 19(1)(b)(ii) was lawfully issued and served and remains of full force and effect.  We do not see that any submission to the contrary can reasonably be argued.

The second ground of appeal: undermining the appellant’s civil claim

33. A primary concern of the appellant is that, if removed from Hong Kong and returned to Pakistan, he will, for all practical purposes, be prevented from pursuing his claim for damages for unlawful imprisonment brought against the Secretary for Security and the Director of Immigration.

34. The appellant’s action is one of over 400 such claims made by asylum seekers for damages for unlawful detention.  We are informed that all of these claims have been stayed temporarily pending the determination of the appeals in two of the earliest claims, both appeals turning on a matter of law. The appeals will be heard before the end of the year.

35. The appellant’s action was instituted in the District Court in February 2011.  The defence was filed in May 2011 and a reply filed on 11 June 2011.  It has been on-going for well over a year.

36. As I understand it, putting the issue into public law terms, the applicant seeks to challenge the decision of the Director to remove him from Hong Kong despite his pending claim for damages on the basis that the decision is irrational.  It is irrational in that the Director, in the exercise of his discretion, failed to take into account that a removal would constitute a denial of the appellant’s right to pursue his action in the Hong Kong courts or failed to give sufficient weight to that fact.

37. In his judgment at first instance, Lam J said that the fact that a person has filed a civil claim against the Director cannot of itself render unlawful a decision by the Director to serve that person with a removal order.  In my view, that must be correct.

38. What must be remembered is that the legislature has entrusted to the Director the discretionary power to formulate policies governing matters of immigration and to do so in light of Hong Kong’s unique circumstances, more particularly that it is a small place with a high population density, one in which there is constant pressure on both our physical and social infrastructures.  The Immigration Ordinance sets out a scheme for the removal from Hong Kong of persons who have entered unlawfully and who remain unlawfully: persons in the position of the appellant.  There is nothing before us to suggest that, in seeking to effect the removal of the appellant after the final determination of his claims for asylum, claims that were unsuccessful, the Director has done anything other than act in accordance with well-settled policy.

39. In the exercise of his discretion, the Director must of course consider the circumstances of each and every case.  This means that a person in the position of the appellant can legitimately expect that his case will be examined individually in the light of the policy being executed by the Director.

40. In the present case, there is nothing before us to suggest that the Director has failed to give consideration to the fact that the appellant has brought a claim for damages.  Equally, there is nothing to suggest that the Director failed to give due weight to that fact.

41. An objective examination of the appellant’s complaint reveals that his removal from Hong Kong will not deny him the right to press home his claim for damages.  While the appellant’s removal will be an inconvenience, the harm need be no greater than that.  There are a number of reasons why this is so.

42. Absence from Hong Kong is not of itself a formal bar to pursuing an action in the courts of Hong Kong.  Even if outside of Hong Kong, the appellant may still proceed with his action here.

43. The appellant protests that he is a poor man who may not be able to afford to return to Hong Kong to give evidence at trial.  He submits that there is also the risk that he may not be given a visa to return.  That ignores the fact, however, that, if the interests of justice require it and it constitutes an efficient method of disposing of the proceedings, a plaintiff may testify from outside Hong Kong by way of a video link.  Indeed, that is becoming increasingly common.

44. What must also be taken into account is that it is far from inevitable that the plaintiff’s action will need to go to trial.  The majority of civil claims, if they are found to be well based in law, are settled before trial.

45. As to the appellant’s personal circumstances, he enjoys two marked advantages.  First, he has the benefit of continuing legal representation.  His removal from Hong Kong will not therefore prevent his best interests in the litigation from being professionally safeguarded.  Second, his action is well advanced: instructions have been given and issues no doubt joined.

46. In summary, there is nothing to suggest that the appellant’s removal from Hong Kong will constitute a denial of his right to pursue his action in the courts of this jurisdiction.  Any claim to the contrary is not reasonably arguable.

47. A reading of the submissions prepared by the appellant appears to suggest that, as the Director is one of the defendants in the appellant’s claim for damages, a refusal by him to allow the appellant to remain in Hong Kong pending the resolution of that action amounts to an abuse of power on his part. It is an abuse, so it appears to be suggested, because, by bringing about the removal of the appellant, the Director will achieve for himself a marked tactical advantage in the litigation.

48. If that is the suggestion made, it has no merit.  First, for the reasons set out earlier, it is incorrect to say that the removal of the appellant will result in a marked advantage to the Director in the litigation.  Second, the fact that the Director is being sued for damages in his representative capacity does not mean that he must thereby abdicate the statutory responsibilities which are imposed upon him.

Hon Tang VP:

49. The appeal is dismissed.

50. Costs are awarded to the respondent.