MOHAMMED JAQUB BALOCH v. DIRECTOR OF IMMIGRATION

HCAL 2067/2023

[2024] HKCFI 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2067 OF 2023

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Deportation Order (“DO”) made on 3 February 2016.  He has been held in immigration detention since 20 September 2023 pursuant to section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the adjourned hearing before me, the Applicant has been detained for 115 days.

1.2  On 21 November 2023, the Applicant applied for a writ of habeas corpus, naming only the Director of Immigration (“Director”) as the Respondent.  Directions were thereafter given for Respondent to file an initial response.  The Applicant appeared in person and the Respondent was represented by Mr Gabriel Cheung, Government Counsel, who also signed the initial response.  Whilst the present application is made only against the Director, Mr Cheung has clarified in the initial response that the Secretary for Security is also a relevant party and the initial response was lodged, and he appeared, also for the Secretary for Security (“Secretary”).  I proceed on that basis.

1.3  This matter first came before me on 28 December 2023.  On 27 December 2023, the Applicant lodged an appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”), the background to which is dealt with below.  The hearing on 28 December 2023 was adjourned for the Respondents to consider whether the authority to detain the Applicant should be pursuant to a provision other than section 32(3) of the Ordinance in the light of the latest development. 

1.4  Having considered the supplemental submissions lodged by Mr Cheung, I am satisfied that the authority to detain the Applicant is still derived from section 32(3) of the Ordinance, despite the latest appeal to TCAB.  This is dealt with at section 7 below.

2.  Background

2.1  The Applicant is a national of the Philippines and Pakistan.  He was born in the Philippines on 31 January 1988 to a Pakistani father and a Filipino mother.  He arrived in Hong Kong on 18 October 1995 as a visitor on the strength of his Filipino passport when he was 7 years old.  He completed his primary and secondary schooling in Hong Kong and can speak fluently in English and Chinese.

2.2  On 19 April 1996, the Applicant was granted a dependant visa to join his father[1] who was already a Hong Kong permanent resident and had the custodial right over the Applicant. Following the Applicant’s applications for extension of stay in Hong Kong as a dependant, he was permitted to stay in Hong Kong until 19 April 2006.

2.3  On 6 March 1997, the Applicant’s father married the Applicant’s stepmother in Hong Kong.

2.4  On 21 July 2003, the Applicant’s father applied for verification of eligibility for a permanent identity card (“VEPIC”) on behalf of the Applicant (“1^st VEPIC Application”).  The 1^st VEPIC Application was treated as cancelled on 29 October 2003 as the Applicant’s father and the Applicant failed to respond to requests for supplementary supporting documents.

2.5  Prior to 20 April 2006, the Applicant did not make any extension of stay application and overstayed as a result.  However, he did so in early 2007 and was permitted to remain as a dependant and his limit of stay was extended to 21 March 2011.

2.6  On 31 March 2007, the Applicant applied for VEPIC again, but his application was refused on 25 July 2007.

2.7  Prior to 22 March 2011, the Applicant did not make a further extension of stay application and overstayed as a result.  He did so in 2012 and was permitted to remain as a dependant and his limit of stay was extended until 11 April 2014.  This represented his last application for extension of stay and he has overstayed in Hong Kong since 12 April 2014.

2.8  As stated above, the DO was made against the Applicant on 3 February 2016 and it was made as a result of the Applicant’s criminal convictions.  Since his arrival in Hong Kong, the Applicant has had 41 counts of conviction, the first being on 10 August 2005 and the last on 3 March 2023.  He has been convicted of non-consensual buggery, theft, fraud, obtaining property by deception and using an identity card relating to another person etc.  He has been sentenced to the Training Centre, suspended sentence and various terms of imprisonment.  On the last occasion on 3 March 2023, he was sentenced to a total of 40 months’ imprisonment for 20 counts of conviction.

2.9  Returning to the chronology, on 12 February 2016, the Applicant submitted another VEPIC application, which was refused on 8 March 2017.

2.10  On 16 February 2016, whilst being detained pending deportation, the Applicant lodged a non-refoulement claim (“NRC”).  However, after being released on recognizance, on 11 March 2016, the Applicant requested to close his claim on 24 April 2017, which was further confirmed by a letter submitted through the Duty Lawyer Service on 2 May 2017.  In that letter, the Applicant confirmed that there was no danger if he were to be repatriated back to the Philippines. On 14 May 2017, the Immigration Department informed the Applicant that no further action would be taken on his NRC pursuant to his request for withdrawal and his case was treated as closed. 

2.11  After the Applicant was released on 11 March 2016 following the lodge of his NRC, he failed to report recognizance on 20 October 2017 and went underground for more than 3 years.  The Applicant was only located on 24 December 2020 as a result of a police arrest for being in possession of an identity card relating to another person.

2.12  The present detention began on 20 September 2023 upon the Applicant’s discharge from prison.  After the commencement of the present detention, the Applicant made a number of applications:

(1)  on 3 October and 3 November 2023, the Applicant requested that the DO be suspended/rescinded;

(2)  the Applicant requested to re-open his NRC on 5 October 2023, which request was rejected by the Director on 19 December 2023 (“19/12/23 Decision”);

(3)  on 30 October 2023, the Applicant submitted another application for VEPIC which was refused on 19 December 2023;

(4)  on 21 November 2023, in addition to commencing the present application, the Applicant also filed an application for leave to apply for judicial review against the Director’s decision regarding the 1^st VEPIC Application (HCAL 2066/2023); and

(5)  on 27 December 2023, as stated above, the Applicant lodged an appeal to the TCAB against the 19/12/23 Decision.

2.13  Immediately following the 19/12/23 Decision, re-entry formalities commence on 20 December 2023.  On 3 January 2024, a travel document (valid until 3 April 2024) for the Applicant’s return to the Philippines was issued. 

3.  Ongoing proceedings and/or extant applications

3.1  I have already set out at §2.12 above the actions taken by the Applicant since the commencement of the present detention.

3.2  As I understand from the evidence:

(1)  as regards the Applicant’s NRC, following the lodging of the appeal to TCAB against the 19/12/23 Decision, on 4 January 2024, TCAB directed an oral hearing which is expected to be held on 13 March 2024 and indicated that a decision should be issued around 4 weeks thereafter.  The Applicant has intimated that should his appeal to TCAB fail, the Applicant is intent on bring the matter to Court by way of judicial review proceedings; and

(2)  as regards the Applicant’s application for suspension or rescission of the DO, the Security Bureau’s position is that it will only be processed pending the outcome of HCAL 2066/2023.

3.3  At the hearing on 12 January 2024, the Applicant informed me that he has either commenced or is about to commence another set of judicial review proceedings against the DO and the present detention (“New JR Proceedings”).  The Applicant did not produce the relevant documents at the hearing and Mr Cheung confirmed that the Respondents are not aware of the New JR Proceedings.

4.  Present detention and its reviews

4.1  As stated above, the present detention commenced on 20 September 2023 following the Applicant’s release from prison.  The Applicant has been detained under section 32(3) of the Ordinance pending his removal from Hong Kong.

4.2  On 25 September 2023, a Notice of Detention was served on the Applicant, in which it is stated that (1) the Applicant is being detained pending deportation from Hong Kong, (2) his removal is going to be possible within a reasonable time, (3) he poses, or is likely to pose, a threat of security risk to the community, (4) he may abscond and/or (re)offend, and (5) there are no other circumstances in favour of his release.

4.3  Consistent with the actions taken by the Applicant outlined at §2.12 above, the Applicant has throughout the present detention indicated his unwillingness to return to his home country.

4.4  On 20 and 21 December 2023, a review of the present detention was carried out.  It was considered that the Applicant should remain in detention for the following reasons:

(1)  there was no outstanding NRC and/or related legal proceedings, as the Applicant’s application to reopen his NRC has already been rejected by the Director on 19 December 2023;

(2)  the facts that the Applicant had made the 4^th VEPIC Application and commenced HCAL 2066/2023 did not give rise to any legal impediment to repatriation, and in any event, those application and proceedings can still continue even after the Applicant is deported from Hong Kong;

(3)  the only impediment (then) to the Applicant’s deportation is the lack of an emergency travel document;

(4)  the Applicant has a blatant disrespect of the law and the gravity of his convictions indicate that he is a serious threat and security risk to the local community;

(5)  given the Applicant’s previous absconding record and his professed unwillingness to return to his home country, there is a significant absconding risk; and

(6)  although the Applicant’s stepmother and stepbrother have offered to act as the Applicant’s guarantors, it remains the fact that, despite such local connections, the Applicant had still absconded previously and therefore such local connections do not outweigh the absconding risks or the factors which are in support of the Applicant’s continued detention pending deportation.

4.5  Following the hearing on 28 December 2023, further reviews were conducted on 8 and 10 January 2023.  It was considered that the Applicant should not be released on the grounds broadly similar to those identified in the previous paragraph, with the additional observation that there was no reason to believe that his appeal to TCAB cannot be finalized within a reasonable time.

5.  The Applicant’s submissions

5.1  The Applicant’s submissions as set out in his written materials may be summarized as follows:

(1)  There is merit in HCAL 2066/2023 as he and his late father did not supply further supporting documents only because they did not contemporaneously receive the requests for supporting documents. 

(2)  There is at present no court date fixed for HCAL 2066/2023.

(3)  Relatedly, he is still awaiting the result of his legal aid appeal.

(4)  He has written to the Secretary for Security, Mr Tang Ping Keung, to examine his request for the suspension or rescission of the DO.

(5)  He intends to take his NRC to the TCAB, and if necessary, to the Court.

(6)  He has already served his terms of imprisonment for his previous misdeeds.

(7)  He has lived the majority of his life in Hong Kong and has no connection in either the Philippines or Pakistan.  Indeed, his family is in Hong Kong.

5.2  At the hearing on 28 December 2023, the Applicant further submitted that he had not received the Notice of Detention and that his signature on that document was a forgery.  He also explained that his previous abscondment (§2.11 above) was as a result of miscommunication with his previous lawyers.

5.3  At the hearing on 12 January 2024, (1) the Applicant made some comments on the information set out in the travel document issued on 3 January 2024, in that the his age stated therein is incorrect[2] and the photograph is outdated, (2) he reiterated that there is no hearing date in respect of HCAL 2066/2023 and he is still awaiting the result of the related legal aid appeal, (3) as stated above, he mentioned the existence of the New JR Proceedings and (4) he pointed out that it was not his intention to create any obstacles to his removal from Hong Kong.

6.  The applicable principles

6.1  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.

6.2  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.

6.3  Under section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including: (1) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community and (3) factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

6.4  In the circumstances of the present case, it is also apt to refer to Bains Charanjit v Hong Kong SAR Government & Anor [2022] HKCFI 3772.  In Bains, the applicant had been detained for 679 days at the time of the hearing and much of the prolonged period of detention was caused by the applicant’s delay in pursuing his NRC.  At §§42 and 43, Coleman J said:

“ [42] Now that the Board’s fresh consideration of the Applicant’s NRC has been fixed for hearing on 29 December 2022 (just 10 days after the hearing of this application), I agree that it can be said that the Applicant can be removed within a reasonable period of time. The consideration is affected by the history, where the Applicant was granted leave to apply for JR on 23 June 2020, but took no steps to issue the originating summons until apparently triggered by the DOJ’s warning letter in September 2021, and even then the originating summons itself was not issued until June 2022. That delay must be down to the Applicant. Thereafter, the DOJ actively sought to resolve that originating summons by a consent order, and the Director has subsequently urged the Board to expedite dealing with matters involving the Applicant. It can be expected – not least with further encouragement for expedition – that the Board will determine the Applicant’s appeal/petition within say two or three months after the hearing.

[43] As to what will happen after the Board’s decision, it is inappropriate to speculate.  I note that the Applicant has suggested that there is bound to be some protracted legal proceedings, but it is premature to say so without seeing the Board’s decision and the reasoned basis for it.”

6.5  In assessing whether detention has or has not become unreasonable, I accept that each case must be decided on its own facts.  However, the Court of Appeal has recently provided some guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 (“Johnson Benjamin CA”).  On the issues of an applicant’s delay in pursuing extant legal proceedings, Au JA said:

“ [25] On the other hand, as mentioned above, the Judge rightly found that the applicant by his own conducts had not pursued with any reasonable diligence his NRC for a long period of time. By the time when he eventually seriously pursued it in December 2021 (just before he was to be released from prison), it was already 10 years since the applicant first lodged the NRC.

[26] In this respect, it is also important to note that the Judge further rightly observed and accepted at [70] and [71] of the Written Judgment that (a) the equivocation of the applicant had significantly contributed to the significant delay in the determination of his NRC, and (b) had the applicant chosen to pursue his case with some diligence, his NRC might have been resolved long before February 2022, when the immigration detention commenced.

…

[29] Once considered against these primary findings of facts and observations, in our view, it was not sensibly open to the Judge to conclude, after weighing all the relevant factors as he did, that the relevant immigration detention had become unreasonably long and thus unlawful:

(1) It is plain that the relevant relatively lengthy period of immigration detention is substantially caused and necessitated by the applicant's own unreasonable conduct and acts in significantly delaying the disposal of his NRC. In other words, had he pursued his NRC reasonably diligently, as he ought to have, he would most likely have been ready to be removed expeditiously upon his release from prison. As stated by the Judge at [31] of the Written Judgment, the Liberian Embassy would be able to issue the applicant the replacement passport in 2 weeks once all the formalities have been completed, and in fact, it was the applicant's own case that he would be able to obtain the replacement passport even quicker. In the premises, the applicant's further frustration of the replacement of his passport has therefore further compounded the delaying effect caused by his unreasonable conduct in his pursuit of the NRC.

(2) In the circumstances, the Judge's emphasis on the relatively long period of the detention in the present case as the starting and in effect the tipping point to show that the detention had become unreasonably excessive simply cannot be right.

(3) In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee's own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.” (emphasis added)

7.  Analysis

7.1  Throughout the Applicant’s detention period, the Applicant has been detained under section 32(3) of the Ordinance.  I agree with Mr Cheung that the Applicant’s appeal to TCAB lodged on 27 December 2023 does not render section 32(3) inapplicable, for the following reasons:

(1)  It must be emphasized that the Applicant’s NRC was previously withdrawn (§2.10 above). The 19/12/23 Decision was one made by the Director against the Applicant’s application to reopen the NRC.  The Applicant’s extant appeal to TCAB against the 10/12/23 Decision does not alter the fact that his NRC had been withdrawn.

(2)  Where there is a subsisting torture claim, the claimant may not be removed from Hong Kong as a result of section 37Z of the Ordinance.  As analyzed by Coleman J at Johnson Benjamin v Director of Immigration [2023] HKCFI 1664 (“Johnson Benjamin CFI”) §§50-52[3], a subsisting torture claim may render section 32(3) (or 32(3A) in Johnson Benjamin CFI) inapplicable since the claimant cannot be detained “pending his removal”.  However, section 37ZK of the Ordinance provides an alternative basis, in that a claimant may be detained pending final determination of the claimant’s torture claim.

(3)  However, as pointed out by Mr Cheung, the fact that the Applicant’s claim had previously been withdrawn is an important distinction, since the prohibition against removal of a claimant under section 37Z of the Ordinance does not apply to a withdrawn torture claim (section 37Z(3)(b)).  Indeed, under sections 37ZE(2) and (5), it is only if the claimant successfully applies to reopen a withdrawn claim that the claim will be processed as if it had not been withdrawn.

(4)  By reason of the above, I agree with Mr Cheung that the Applicant, having previously withdrawn his NRC, is not a claimant who may not be removed under section 37Z(1) of the Ordinance but one who may be removed under section 37Z(3)(b) despite his appeal lodged to TCAB on 27 December 2023.  

7.2  As a result, there has been prima facie lawful authority to detain the Applicant under section 32(3) of the Ordinance throughout the Applicant’s detention period.  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 115 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 / Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention.  HS1 is satisfied.

7.4  I also accept that the Director / Secretary have acted with diligence and expedition to effect the Applicant's removal.  This is amply demonstrated by the efforts to dispose of the Applicant’s application to reopen the NRC timeously which was immediately followed by arrangements made for the issuance of an emergency travel document.  HS4 is satisfied.

7.5  As matters now stand, given the unsuccessful VEPIC applications, the Applicant does not have the status of a Hong Kong permanent resident (as stated at §3(2) of Schedule 1 to the Ordinance).

7.6  I accept Mr Cheung’s submission that HCAL 2066/2023 (and the Security Bureau’s position to consider the Applicant’s application to suspend or rescind the DO pending the determination of HCAL 2066/2023) do not give rise to a legal impediment to the Applicant’s removal. In any event, as in the cases of Bains and Johnson Benjamin CA, there is patent unreasonable delay in the Applicant pursuit of HCAL 2066/2023 (and the related legal aid application and appeal), bearing in mind that it is a challenge against the 1^st VEPIC Application which took place some 20 years ago in July 2003.  I further agree with the observation stated in the Notice of Detention that HCAL 2066/2023 can continue even were the Applicant deported.

7.7  I am told by Mr Cheung that although there is no legal impediment created by the extant appeal to TCAB, to the benefit of the Applicant, the Director has decided not to deport the Applicant until the conclusion of the appeal. Relying on Bains and Johnson Benjamin CA again, the Applicant is likewise responsible for the delay in his application to reopen his NRC, especially given the fact that he had previously withdrawn his claim in 2017. I do not regard the Director’s decision to not deport the Applicant pending the resolution of his appeal to TCAB (being a decision made to the benefit of the Applicant) as being inconsistent with the intention to deport the Applicant, given TCAB’s indication that the appeal will likely be resolved in April this year.  As stated at Bains §43, it is inappropriate to speculate on what will happen after TCAB’s decision and no doubt the Applicant’s detention will be reviewed in the light of TCAB’s decision and the reasoned basis for it.

7.8  Relatedly, as the resolution of the appeal to TCAB will likely only take place after the expiry of the travel document on 3 April 2024, any incorrect information stated therein may be rectified in a new travel document to be issued.

7.9  I also accept Mr Cheung’s submission that (1) given the Applicant’s heavy conviction records, (2) his previous absconding record and (3) his professed unwillingness to return to his home country, there are significant risks of absconding and reoffending to which I attach weight in the assessment of the reasonableness and lawfulness of the detention.  In this regard, I am of the view that the offer of the Applicant’s stepmother and stepbrother as guarantors does not have the effect of outweighing the risks and the factors which are in support of the Applicant’s continued detention pending deportation.

7.10  I also do not accept the Applicant’s submission that he had not received the Notice of Detention and his assertion that his signature on that document is a forgery.  The Applicant has not identified any or any rational reason for such serious irregularities, especially when he confirmed at the hearing on 28 December 2023 that he had no real quarrel with the factual content of the Notice of Detention (although he understandably disagreed with the conclusion drawn from them to detain him).

7.11  I also have difficulty with the Applicant’s explanation that his previous abscondment was as a result of miscommunication with his lawyer. The Applicant explained that after he had withdrawn his NRC in 2017, he was at that time expecting to be repatriated.  Due to the miscommunication with his lawyers, he thought that as a result he no longer had to comply with his recognizance conditions. However, the objective facts are (1) the period of abscondment was significant (from October 2017 to December 2020) and (2) his failure to comply with the recognizance conditions was at a time when he was expecting to be repatriated.

7.12  As regards the New JR Proceedings, as no information has been placed before me, I am unable to attach any or any significant weight to this new development.        

7.13  Whilst I have some sympathy for the Applicant’s submission that (1) he has lived the majority of his life in Hong Kong, (2) his family is in Hong Kong, and (3) he has no connection with the Philippines or Pakistan, I cannot overlook the fact that the DO was made against the Applicant because he had persistently transgressed the law.  In any event, I accept Mr Cheung’s submission that in the present application I am not concerned with the question as to whether the Applicant should be removed from Hong Kong under the DO.

7.14  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 (at the very least until the resolution of the Applicant’s appeal to TCAB which will take place in April this year), has been and will remain lawful.

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