AZMAT ULLAH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1883/2023

[2023] HKCFI 3230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1883 OF 2023

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J U D G M E N T

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A.  Application

1.  By an ex parte application dated 18 October 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.

B.  Background of Applicant

2.  The Applicant is a Pakistan national born on 1 January 1980 who entered Hong Kong illegally on 15 June 2013. He was arrested on the same day.

3.  A removal order was issued against the Applicant on 15 July 2013 (the “Removal Order”). He was released on recognizance on 30 July 2013.

4.  The Applicant’s wife and siblings all live in Pakistan. He has no local family connection in Hong Kong.

5.  The Applicant’s Pakistan passport had expired on 23 October 2017.

6.  Upon his discharge from prison on 15 September 2023, the Applicant has since 15 September 2023 been detained under section 32(3A) and section 29(1) of the Immigration Ordinance (Cap. 115) (the “Ordinance”).

7.  At the time of the hearing, the Applicant has been detained for 85 days.

C.  NRC related proceedings

8.  The Applicant raised a non-refoulement claim (“NRC”) on 18 June 2013.

9.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 7 January 2016 by a notice of decision. (the “Director’s Decision”).

10.  The Applicant lodged an appeal to the Torture Claims Appeal Board against the Director’s Decision on 19 January 2016. On 15 February 2019, the Applicant withdrew his appeal to the Torture Claims Appeal Board against the Director’s Decision. Accordingly, the Torture Claims Appeal Board informed the Applicant by letter dated 25 February 2019 that the appeal had been disposed of (the “TCAB Decision”).

11.  The Applicant’s applications to the Court of First Instance for leave to apply for judicial review of the TCAB Decision (the “JR Application”) was heard on 27 November 2023. Due to legal aid stay, the JR Application was adjourned to 4 December 2023. The application was heard on 4 December 2023 with Form CALL-1 to be handed down.

12.  According to 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.

13.  As such, there is currently a legal impediment to the removal of the Applicant as the Form CALL-1 is pending.

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
2 December 2022	Taking employment while being a person in respect of whom a removal order is in force	15 months

Period of Abscondence

8 March 2016 for 2 months

E.  Steps towards Removal

15.  On 17 October 2023, a letter was sent to the Consulate General of the Islamic Republic of Pakistan (the “Pakistan CG”) for issuing a replacement travel document to the Applicant. This was followed up by a visit to the Pakistan CG on 18 October 2023. The Pakistan CG informed the Immigration Department that a completed application form/photos and in-person interview were required for re-entry purposes. Upon compliance of all formalities, an emergency travel document could be issued within 2-3 weeks.

16.  On 25 October 2023, 31 October 2023 and 10 November 2023 respectively, the Applicant was interviewed and he repeatedly refused to submit the re-entry application and refused to attend the interview scheduled with the Pakistan CG on 7 November 2023.

17.  On 16 November 2023, another letter was issued to the Pakistan CG to explore alternative means of issuing a travel document without the Applicant’s co-operation.

18.  On 28 November 2023, the Pakistan CG confirmed the verification of the Applicant’s identity and the Immigration Department was advised that a replacement travel document would be issued upon production of a flight itinerary.

19.  A flight for the Applicant’s removal has been arranged for 4 January 2024 and the itinerary has been sent to the Pakistan CG for expedition of the issuance of a travel document.

F.  Applicable Principles

20.  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.

21.  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

22.  The Applicant has set out his grounds for application in his affirmation dated 11 October 2023. In summary, they are as follows:

(1)  Removal cannot be effected within a reasonable time as he has not been issued with an emergency travel document.

(2)  The detention was not for a crime and the length of the detention since 15 September 2023 has become unreasonably long.

(3)  He wished to remain in Hong Kong until all his claims are completed. There is no reasonable prospect that his judicial review application could be finalised within a reasonable time.

(4)  Guarding against re-offending is not the purpose of detention. He has already served the sentence for previous crimes committed.

(5)  Chance of absconding is low.

23.  At the oral hearing, the Applicant relied upon his earlier written materials and made further submissions. In addition to his submissions made in his affirmation, the Applicant stated the following:

(1)  He suffers from diabetes and has poor eyesight. It is difficult to stay inside the detention centre.

(2)  He has lived in Hong Kong for the last 10 years and he had never missed reporting his recognizance.

(3)  He is remorseful for the crime committed.

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

H.  Lawful Authority for Detention?

25.  Up to the hearing on 8 December 2023, in total, the Applicant has been detained for 85 days.

26.  From 15 September 2023 to 4 December 2023, the Applicant was detained under section 32(3A) of 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.

27.  From 5 – 8 December 2023, the Applicant has been detained under section 29(1) of the Ordinance pending inquiry as to whether the Applicant ought to be deported.

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

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

I.  Whether Detention has become unlawful

30.  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”).

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

HS1

32.  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

33.  The starting point is the length of the detention – about 85 days – against which all the other factors must be weighed and balanced.

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

(1)  Although the Form CALL-1 is pending, the court had previously indicated that the Form CALL-1 would be available within 1 week of the hearing. In any event, there is nothing to suggest that it would not be handed down within a reasonable time. Further, as the Applicant had withdrawn his appeal against the Director’s Decision himself, it is not apparent that there is any strong merit in the Applicant’s JR Application.

(2)  There is no dispute that the Applicant has all along refused to co-operate in obtaining a valid travel document to enter Pakistan.

(3)  The Pakistan CG has initially indicated that upon compliance of all re-entry formalities, an emergency travel document can be issued in about 2 weeks’ time.

(4)  Although the Form CALL-1 is pending, there is no reason why the Applicant should not co-operate in obtaining a travel document first. If he co-operates and if his JR Application proves unsuccessful, the length of his detention will not be unnecessarily lengthened by the unavailability of a valid travel document.

(5)  The Pakistan CG subsequently has indicated on 28 November 2023 that as the Applicant is uncooperative, a travel document can be issued if a flight itinerary is provided. This has been complied with by the Immigration Department after a flight has been tentatively arranged for the Applicant’s deportation on 4 January 2024. It is therefore foreseeable that a travel document will be issued within 2-3 weeks and the Applicant can be removed swiftly in the event that the court rejects the JR Application.

(6)  I agree with Ms Wong that the risk of re-offending is real. Presumably, if not repatriated, once out of detention, the Applicant would find it necessary to seek employment (illegally) to maintain a living. It is thus not unreasonable to guard against the risk that the Applicant, if released on recognizance, might engage in unlawful employment again which would lead to terms of imprisonment which might delay further repatriation operation, because sentence had in the past attracted an imprisonment term of 15 months.

(7)  The Applicant disputes his record of abscondence, alleging that he had duly reported recognizance and the Immigration was mistaken in 2016. There is no evidence before the Court to demonstrate if the Applicant’s assertion is accurate. However, even discounting the record of abscondence, given the Applicant has repeatedly refused to co-operate in obtaining the necessary travel documents and has indicated his unwillingness to be repatriated, the risk of absconding is real. The risk of abscondence is of critical importance in assessing the lawfulness of the detention. If the Applicant absconds again, it would defeat the primary purpose for which the power to detain has been conferred and for which the detention order was made.

(8)  Overall, weighing the period of detention – around 85 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

35.  I am satisfied that HS4 is satisfied that the Director had diligently pursued the Applicant’s deportation for the steps taken in paragraphs 15 – 19 above.

36.  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.  Result

37.  For these reasons, I dismiss the Applicant’s application for a writ of habeas corpus with no order as to costs.