DANISH ARSHAD MEHMOOD alias DANISH ARSHAD MAHMOOD v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1502/2023

[2023] HKCFI 2772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1502 OF 2023

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JUDGMENT

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A.  Application

1.  By an ex parte application dated 24 August 2023, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

2.  The 1^st hearing was held on 3 October 2023 during which the Applicant had asked for an adjournment of the hearing for him to seek legal representation. The hearing was thus adjourned to 25 October 2023.

B.  Background of Applicant

3.  The Applicant is a Pakistan national born on 24 November 1980 who entered Hong Kong illegally on 29 October 2006. He was arrested on 3 January 2008.

4.  A removal order was issued against the Applicant on 29 January 2008 (the “Removal Order”).

5.  The Applicant was married in 2017. He has a daughter and two sons in Hong Kong. The wife and the two sons have all been issued removal orders on 5 October 2018.

6.  The Applicant’s Pakistan passport had expired on 1 June 2011.

7.  A deportation order was issued against the Applicant on 20 September 2023.

C.  NRC related proceedings

8.  The Applicant registered an asylum claim with the United Nations High Commissioner for Refugees on 2 November 2006 and the claim was closed on 28 September 2007.

9.  The Applicant then raised a non-refoulement claim (“NRC”) on 31 January 2008 based on his alleged fear of being killed by a local gangster who had killed his mother.

10.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 16 January 2015 by a notice of decision.

11.  The Applicant lodged another NRC on 22 December 2016, which was rejected by the Director on 12 January 2017 (the “Director’s Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 7 August 2017 (the “TCAB Decision”).

12.  The Applicant’s applications to the Court of First Instance for: i) extension of time to apply for leave to apply for judicial review and ii) for leave to apply for judicial review of the TCAB Decision were dismissed by the Form CALL-1 in HCAL 1235/2018 dated 3 June 2021 (the “JR Decision”).

13.  The Applicant had on 24 August 2023 lodged a summons in HCAL 1235/2018 applying for extension of time to appeal against the JR Decision, which was dismissed on 12 October 2023. However, this is in any event irrelevant for present purposes, as due to a change of the Immigration Department’s removal policy since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

D.  Criminal Record & Sentencing Record & Abscondence

14.  The Applicant’s criminal and sentencing records and history of abscondence are as follows:

Date of Sentence	Offence	Period of Sentence
5 October 2010	Common assault	Bound over
3 March 2022	Taking employment while being a person in respect of whom a removal order is in force	22 months

Date of Recognizance	Period of Abscondence
2 April 2008	28 February 2018 – 26 March 2018

E.  Steps towards Removal

15.  On 22 January 2015, a letter was sent to the Consulate General of the Republic of Pakistan (the “Pakistan CG”) for issuing a replacement travel document to the Applicant. This was repeated on 19 June 2018, 7 December 2022, 4 May 2023 and 29 June 2023.

16.  On 25 May 2023, 2 June 2023, 5 June 2023, 30 June 2023, 4 August 2023, 25 August 2023, 31 August 2023 respectively, the Applicant was interviewed and he repeatedly refused to submit the re-entry application and refused to attend the interview with the Pakistan CG.

17.  On 31 May 2023, a visit was made by the Immigration Department to the Pakistan CG and they acknowledged receipt of the request for replacement travel document for the Applicant and indicated that the Applicant’s re-entry is under processing.

18.  An emergency travel document was issued on 31 August 2023 for the Applicant to return to Pakistan. The validity of the travel document has been extended to 22 December 2023.

19.  A flight has originally been arranged for the Applicant to return to Pakistan on 4 October 2023. As the hearing on 3 October 2023 was adjourned to 25 October 2023, the original plan to remove the Applicant was aborted.

20.  Further interviews with the Applicant were held on 16 October 2023 and 19 October 2023 where the Applicant continued to express his unwillingness to return to Pakistan.

21.  At the hearing on 25 October 2023, the court was informed that another flight has been arranged for the repatriation of the Applicant on 30 October 2023, 5 days after the adjourned hearing.

F.  Applicable Principles

22.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

23.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

24.  The Applicant has set out his grounds for application in his affirmation dated 22 August 2023. In summary, they are as follows:

(1)  HS1 of the Hardial Singh principles has been breached as the detention was used for purposes other than deportation.

(2)  HS2 of the Hardial Singh principles has been breached as the detention was not for a crime and the length of the detention since 20 May 2023 has become unreasonably long.

(3)  HS3 of the Hardial Singh principles has been breached as deportation cannot be carried out within a reasonable time.

(4)  The liberty of the Applicant is a fundamental right, which is being infringed.

(5)  Guarding against re-offending is not the purpose of detention.

(6)  The Applicant’s autistic son is in the hospital. He wishes to be with his family. The separation and detention are affecting his children, causing them anxiety and depression.

25.  At the oral hearing, Mr Hunter, counsel for the Applicant relied upon his earlier written submissions as follows:

(1)  The Applicant’s unwillingness to comply was caused by his ignorance of the law and he falsely believed that he could further pursue his NRC.

(2)  The effect on the Applicant’s continual detention was grave. The arrangements for removal could be made without detaining him.

(3)  Risk of re-offending is not high.

26.  The Applicant also made oral submissions at the hearing that he still had outstanding applications to pursue in relation to his NRC.

27.  I have borne these points in mind in my analysis below.

H.  Lawful Authority for Detention?

28.  Up to the hearing on 25 October 2023, in total, the Applicant has been detained for 159 days.

29.  At all times, the Applicant was detained under various sections of the Ordinance:

(1)  From 20 May 2023 to 11 September 2023 (115 days), the Applicant was detained under section 32(3A) of the Immigration (Cap. 115) (the “Ordinance”), which authorises the detention of a person against whom a removal order is in force pending his removal from Hong Kong. The Removal Order remains extant.

(2)  From 12 September 2023 to 19 September 2023 (8 days), the Applicant was detained under section 29(1) which permits the detention of a person for the purpose of making enquiry as to whether a deportation order should be issued.

(3)  The Deportation Order was issued on 20 September 2023. The Applicant has been detained from 20 September 2023 to 25 October 2023 (36 days) under section 32(3) which permits the detention of a person against whom a deportation order is in force pending his deportation from Hong Kong.

30.  Thus, there was and remains clear prima facie lawful authority for the detention.

31.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

I.  Whether Detention has become unlawful

32.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(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”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

33.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

34.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

35.  The starting point is the length of the detention – about 159 days – against which all the other factors must be weighed and balanced.

36.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1)  There is no dispute that the Applicant has all along refused to co-operate in obtaining a valid travel document to enter Pakistan. Contrary to Mr Hunter’s submissions, such unwillingness to co-operate was not caused by a false belief that he could continue to pursue his NRC. The Applicant continued to refuse to return to Pakistan even after he has had access to legal representation.

(2)  I thus agree with Ms Wong that the length of the current detention was at least partly attributable to the Applicant’s self-inflicted hindrance. He had consciously and deliberately refused to cooperate, which led to the impossibility of deportation. The Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonably long. This is a significant factor that has been taken into account.

(3)  Presumably, if not repatriated, once out of detention, the Applicant would find it necessary to seek employment (illegally) to maintain a living. I agree with Ms Wong that the risk of re-offending is real.

(4)  With a repatriation flight arranged in 5 days’ time, there is no further obstacle to his repatriation, hence release from detention.

(5)  Given the Applicant has repeatedly refused to co-operate in obtaining the necessary travel documents and has repeatedly indicated his unwillingness to be repatriated, the risk of absconding is also real.

(6)  As to the mental health of the Applicant and his children, whilst I agree that the detention must have caused distress to all members of the Applicant’s family, it ought to be borne in mind that the predicament is induced by the Applicant himself. The Applicant and his family members have no right to remain in Hong Kong. Although there is yet a removal order against the daughter (whose JR leave application is pending), I note that there are removal orders against the Applicant’s wife and his two sons. There is nothing to suggest that the Applicant is prevented from going back to Pakistan with all his family members.

(7)  The mental stress caused by continual detention away from family (when no deportation can be effected within a reasonable time) should not be confused with the mental stress of the Applicant being away from the family after deportation. With a deportation order against the Applicant and there being no further impediment to removal, release from detention and deportation is imminent. It is not this Court’s function (nor is it within this Court’s power) to decide that the Applicant ought not be removed based on family reasons.

(8)  Overall, weighing the period of detention – 159 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

37.  I am satisfied that HS4 is satisfied for the following reasons:

(1)  The Director had, in as early as 2015 sought the assistance of the PAK CG to issue the Applicant with a travel document upon discovering that his passport would expire upon his discharge from his then term of imprisonment. Such requests were repeated on 19 June 2018, 7 December 2022, 4 May 2023 and 29 June 2023.

(2)  The Director had proactively sought a meeting on 31 May 2023 with the PAK CG to follow up on the repeated requests.

(3)  A repatriation flight had been arranged soon after the emergency travel document was issued. But for the Applicant’s last minute request for legal representation, he would have been released and deported back to Pakistan by now.

(4)  A repatriation flight has now been arranged.

(5)  I am thus of the view that the Director had diligently pursued the Applicant’s deportation.

38.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J.  Costs

39.  Ms Wong asked for costs of the Application, as the application was unsuccessful. Further, it was submitted that the hearing on 3 October 2023 was adjourned at the Applicant’s request and it was clear that the request for legal representation was an attempt to derail the deportation on 4 October 2023.

40.  I agree there is no reason why costs should not follow the event. After hearing submissions, I ordered that costs of the application, including costs of the hearings on 3 October 2023 and 25 October 2023 be summarily assessed at HK$25,000, payable within 14 days hereof.

K.  Result

41.  For these reasons, I dismiss the Applicant’s application for a writ of habeas corpus with costs summarily assessed at HK$25,000, payable by the Applicant to the Respondents, within 14 days hereof.