DITTA ALLAH v. DIRECTOR OF IMMIGRATION

HCAL 437/2021

[2021] HKCFI 935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 437 OF 2021

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D E C I S I O N

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INTRODUCTION

1.  This is an application by the Applicant seeking an order that a writ of habeas corpus ad subjiciendum be issued in respect of his current detention under s 32(3) of the Immigration Ordinance, Cap 115 (“the Ordinance”).  Unless otherwise indicated, references hereinafter to “Section” or “s” shall be to the Ordinance.

BACKGROUND FACTS

2.  The Applicant is a Pakistani national born on 15 January 1992.  His natural mother passed away in 1994.  His father, who was a Hong Kong permanent resident, married a widow in Pakistan in 1996.  At present, one of the Applicant’s natural sister and three of his step-siblings are Hong Kong permanent residents.

3.  On 7 March 2008, the Applicant first entered Hong Kong for residence as a dependant of his father.  The Applicant’s limit of stay in Hong Kong was last extended until 17 February 2012.

4.  On 11 November 2011, the Applicant’s father passed away in Pakistan.

5.  On 17 February 2012, the Applicant made an application for extension of stay.

6.  On 21 December 2012, the Applicant was arrested in connection with a robbery case.

7.  On 11 March 2013, the Applicant’s application for extension of stay referred to in §5 above was refused by the Director of Immigration (“the Director”).

8.  On 11 June 2013, the Applicant was convicted of the alternative offence of handling stolen goods, and on 11 July 2013, he was sentenced to two years’ imprisonment in DCCC 268/2013.

9.  Between 17 April 2014 (the date of the Applicant’s release from prison) and 15 September 2014, the Applicant was detained under the Ordinance.  During this period:

(1)  A deportation order (“the DO”) was made against the Applicant on 17 June 2014 under s 20(1)(a).

(2)  An emergency passport was issued on 26 June 2014 by the local Consulate General of Pakistan for the Applicant’s return to his home country.

(3)  By letters dated 16 June, 7 and 23 July and 11 September 2014, the Applicant signified an intention to make a non-refoulement claim (“the NRC”).

(4)  On 3 September 2014, the Applicant’s repatriation to Pakistan was not successful by reason of his resistance.

10.  On 15 September 2014, the Applicant was released on recognizance.  One of the conditions of the recognizance was that during the period of his release, he should not take up any employment unlawfully.  The Recognizance Form No 8 dated 15 September 2014 also stated, inter alia, that “failure to observe [the] above may result in his detention and discontinuance of his release on recognizance”.

11.  On 1 June 2018, the Director decided to take no further on the NRC in view of the fact that the Applicant could not be reached by the case officer handling his claim.

12.  On 30 April 2019, the Applicant was arrested while on recognizance.  On 25 May 2019, he pleaded guilty to the offence of taking employment when a deportation order was in force against him, contrary to s 38AA, and was sentenced to 15 months’ imprisonment in STCC 2106/2019.

13.  On 23 March 2020, the Applicant was discharged from prison.

(1)  From 23 March 2020 to 25 March 2020, the Applicant was detained under s 32(3) pending his removal from Hong Kong under the DO.

(2)  On 25 March 2020, the Applicant requested to pursue the NRC.  The Director therefore resumed processing of the NRC.

(3)  From 25 March 2020 to 28 May 2020, the Applicant was detained under s 37ZK pending the final determination of the NRC.

(4)  On 22 April 2020, a completed Non-refoulement Claim Form in respect of the NRC was received by the Director.

(5)  On 6 May 2020, a screening interview of the Applicant in respect of NRC was conducted.

(6)  On 14 May 2020, the Director rejected the NRC.

(7)  On 28 May 2020, the Director treated the NRC as having been finally determined under 37V in view of the fact that no notice of appeal/petition was received by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

14.  From 28 May 2020 to 16 July 2020, the Applicant was detained under s 32(3) pending his removal from Hong Kong under the DO.

15.  On 9 June 2020, the Board informed the Director that it had received the Applicant’s late filing of a notice of appeal/petition (“the NoA/P”) on 8 June 2020.  On 2 July 2020, the Director sent a letter to the Board informing the latter of the Applicant’s detention and requesting that priority be accorded to the Applicant’s case.  On 13 July 2020, the Board accepted the late filing of the NoA/P, and decided to give priority to the Applicant’s case.

16.  From 16 July 2020 to 14 September 2020, the Applicant was detained under s 37ZK pending the final determination of the NRC.  On 2 September 2020, the Board held an oral hearing of the NoA/P.  On 14 September 2020, the Board dismissed the NoA/P (“the Board’s Decision”).

17.  From 14 September 2020 up the present, the Applicant has been detained under s 32(3) pending his removal from Hong Kong under the DO.

18.  On 28 September 2020, the Applicant filed a Form 86 in HCAL 1948/2020 (“the JR Application”) seeking leave to apply for judicial review of the Board’s Decision.  I am given to understand that no date has yet been fixed for the hearing of the leave application.

19.  Up to now, there have been 8 reviews of detention in respect of the Applicant’s current detention under s 32(3) by the Director and/or Secretary for Security (“the Secretary”):

	Reviewed by	Date of Review Endorsed	Date of Service of Notice of Review of Detention
1st	Secretary	9.11.2020	25.11.2020
2nd	Director	20.11.2020
3rd	Secretary	19.1.2021	11.2.2021
4th	Director	10.2.2021
5th	Secretary	19.3.2021	30.3.2021
6th	Director	26.3.2021
7th	Secretary	31.3.2021	3.4.2021
8th	Director	1.4.2021

20.  It was decided on each occasion of review that the Applicant’s detention should continue on the grounds that (i) his removal was going to be possible within a reasonable time, (ii) he might constitute a threat/security risk to the community, (iii) he might abscond and/or re-offended, and (iv) there were no other circumstances in favour of his release.  The following factors were taken into account when reaching those decisions:

(1)  There was no sufficient reason to believe that the Applicant’s case could not be finalised in the near future or within a reasonable period of time.

(2)  If there was an outstanding claim / legal proceeding, there was no sufficient reason to believe that the claim / legal proceeding could not be completed within a reasonable period of time.

(3)  The Applicant had convictions associated with crime(s) of serious or violent nature.

(4)  The Applicant had failed to comply with the terms/conditions of recognizance.

(5)  The Applicant was re-arrested while on recognizance.

21.  On 26 March 2021, the Applicant made the present application for a writ of habeas corpus.  It was supported by an affirmation which had attached to it a handwritten document setting out his arguments in support of the application.  The Applicant also made oral and written submissions in support of his application at the hearing on 7 April 2020.

DISCUSSION

(a)    The Applicant’s detention is prima facie lawful

22.  The legal principles governing an application for a writ of habeas corpus are well settled.  The central question is whether there is lawful authority for a detention: see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was:

“Now the purpose of an application of habeas corpus is to determine whether there is lawful authority for a detention. It is not to determine the reasonableness of any decision or whether there has been some failure to observe the rules of natural justice. Those are matters properly within the realm of judicial review.”

23.  The Applicant is currently detained under s 32(3) of the Ordinance, which states as follows -

“A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.”

24.  In view of the fact that -

(1)  a deportation order in respect of the Applicant is in force; and

(2)  the Applicant is being detained pending his removal from Hong Kong under s 25.

the Applicant’s detention is, prima facie, lawful.

(b)    The Applicant’s detention is Hardial Singh compliant

25.  An initially lawful detention may be turned into an unlawful detention if it fails to meet the Hardial Singh principles as summarised by Dyson LJ (as he then was) in R(I) v Secretary of State for the Home Department [2003] INLR 196 (at §46) and adopted by Ribeiro PJ in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 (at §23):

“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.”

26.  In respect of Principle (i), there is no evidence to suggest that the Secretary / Director do not intend to deport the Applicant, or are using the power to detain for any purpose other than for the deportation of the Applicant.

27.  In respect of Principle (ii), the Applicant has been detained for a substantial period of time.  The current detention under s 32(3) commenced on 14 September 2020 and has gone on for nearly 7 months.  The period of detention is longer when one takes into account his previous detention during the following periods:

(1)  from 23 March 2020 to 25 March 2020, under s 32(3);

(2)  from 25 March 2020 to 28 May 2020, under s 37ZK;

(3)  from 28 May 2020 to 16 July 2020, under s 32(3); and

(4)  from 16 July 2020 to 14 September 2020, under s 37ZK.

The total period of detention comes to about 12.5 months.

28.  The question of how long it is reasonable for a person to be detained under s 32(3) of the Ordinance pending his removal from Hong Kong depends on a holistic assessment of all relevant circumstances. In R(I) v Secretary of State for the Home Department [2003] INLR 196, at §48, Dyson LJ stated as follows:

“It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.”

29.  Further guidance on the question of whether a period of detention has become unreasonable can be found in the judgment of Hickinbottom J in R(Mahfoud) v Secretary of State for the Home Department [2010] EWHC 2057 (Admin), at §6:

“(iv) There is no red line, in terms of months or years, applicable to all cases, beyond which time for detention becomes unreasonable. What is a ‘reasonable time’ will depend upon the circumstances of a particular case, taking into account all relevant factors.

(v) Those factors include:

(a) The extent to which any delay is being or has been caused by the deportee’s own lack of cooperation in, for example, obtaining an emergency travel document (‘ETD’) from his country of origin.

(b) The chances that the deportee may abscond (which may have the effect of defeating the deportation order).

(c) The chances that the deportee, if at large, may reoffend. If he may reoffend, of particular importance is, not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur.

(d) The effect of detention on the deportee, particularly upon any psychiatric or other medical condition he may have. The conditions in which the deportee is detained may also be relevant, although less so if he is required to be detained in particular conditions (e.g. in prison estate as opposed to a detention centre) because of his own behaviour.

(e) The conduct of the Secretary of State, including the diligence and speed at which efforts have been made to enforce the deportation order including obtaining an ETD.

That list of factors is not, of course, exhaustive.

(vi) Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative. There is no ‘trump card’. Therefore, even where there is a high risk or even inevitability of reoffending and/or absconding, nevertheless there may still be circumstances in which Article 5 requires a deportee’s release.

(vii) The burden of showing that detention is lawful lies upon the Secretary of State.”

30.  In assessing whether the Applicant’s detention in the present case has gone on for an unreasonable period of time, I consider the following matters to be relevant.

31.  First, the obstacle which prevents the Applicant’s deportation is the JR Application commenced by the Applicant to challenge the Board’s Decision.  While the Applicant is entitled to exhaust all administrative, statutory and/or judicial remedies against the Director’s rejection of the NCR, it is clear, form the judgment of Dyson LJ in R(I) quoted above, that the nature of the obstacle preventing deportation is a relevant factor when considering the question of how long it is reasonable for the Secretary/Director to detain a person pending deportation.  In the present case, the obstacle is not created or caused by the conduct, still less default, of the Secretary or Director.  In this regard, I do not consider the fact that the underlying decision which the Applicant wishes to challenge is the Director’s rejection of the NRC means that the Director is the cause of the judicial process which impedes the Applicant’s deportation.

32.  Second, the Applicant could have been removed after the Board gave its decision in September 2020 but for the JR Application, which has been pending hearing and determination for some 6-7 months.  When considering the period of detention consequent upon judicial proceedings commenced by the Applicant, the merits of the judicial process pursued by the Applicant which impedes his removal is a relevant consideration.  In R(WL (Congo)), supra, at §§111 and 121, the following was stated by Lord Dyson JSC:

“[111] Mr Beloff submits that the time taken to resolve legal challenges brought by an individual against deportation should generally be left out of account in considering whether a reasonable period of detention has elapsed. He concedes that this general rule should be subject to two qualifications: (i) if the Secretary of State has caused delay in the resolution of the legal challenge, then that time may be taken into account; and (ii) the time during which a legal challenge is being resolved should be taken into account if removal is not possible for reasons unrelated to the legal challenge. I shall call this general rule ‘the exclusionary rule’.

…

[121] To summarise, I would reject the exclusionary rule. If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed, Mr Husain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or reoffending, which would compel an appellant’s release if the appeals process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact-sensitive. This accords with the approach of Davis J in Abdi and I agree with it. The risks of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.”

33.  The present application is not an appropriate occasion to examine in detail the merits of the Applicant’s application for leave to apply for judicial review of the Board’s Decision.  However, to the extent that the merits of the application are relevant to a proper determination of whether the period of the Applicant’s detention has become unreasonable, my provisional views are as follows:

(1)  It can be seen from the Board’s Decision that the basis of the Applicant’s NRC is that if he were to return to Pakistan, he would be harmed or killed by his paternal uncle, who wanted a piece of land that the Applicant’s late father had transferred to him in 2011 prior to his death.  According to the Applicant, his uncle disputed the ownership of the land with his father and, after his death, made threats though the Applicant’s step-mother that he would not spare the Applicant if he were to return to Pakistan.

(2)  After considering the evidence before it, the Board came to the following conclusions:

(a)  “In the circumstances, I do not find the Applicant’s claim that he is the owner of a piece of land which had been occupied by his uncle credible.  Nor do I find it credible that the Applicant’s uncle poses a serious threat to the Applicant or that the Applicant would be at real risk of being harmed or killed by his uncle if he returns to Pakistan” (§54), and

(b)  “In view of my findings of fact, the Applicant would not face a real risk of harm if he returns to live with his step-mother and sister in Mirpur” (§63).

(3)  It is well established that in an application for judicial review of a decision of the Board, it is not the court’s function to re-consider the merits of a non-refoulement claim afresh.  The Applicant will have to overcome a hurdle before the court will interfere with a finding of primary fact by the Board.

(4)  The Applicant has not set out any grounds of review in his Form 86 dated 21 September 2020 filed in the JR Application.

(5)  The JR Application does not appear to be a strong one, or have a good prospect of success.  For the avoidance of doubt, I should make it clear that this is only a provisional view, and should not in any way influence the judge who shall eventually be tasked to consider the merits of the leave application.

34.  Overall, I would not attach much weight to the period of the Applicant’s detention during the process of his legal challenge to the Board’s Decision in assessing what is a reasonable period of detention in this case.

35.  Third, the risks of absconding and reoffending are of “paramount importance” in the court’s assessment of whether a period of detention has become unreasonable in all the circumstances (per Lord Dyson at § 121 in WL (Congo)). See also the judgment of Toulson LJ in R(A) v The Secretary of State for the Home Department [2007] EWCA Civ 804, at §§45, 54 and 55:

“[45] … Be that as it may, a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty.

[54] I accept the submission on behalf of the Home Secretary that where there is a risk of absconding…, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person’s detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made...

[55]      A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”

36.  In the present case, the Secretary/Director are of the view that there are risks of reoffending and/or absconding because of the Applicant’s two convictions in 2013 and 2019, and that fact that he breached a condition of his recognizance by taking employment unlawfully while on recognizance.

37.  In favour of the Applicant, it may be argued that the materials before the court do not point to a high or substantial threat / security risk to the community and/or risk of absconding, bearing in mind the fact that the Applicant’s 1^st conviction for the offence of handling stolen goods took place some 7-8 years ago, his 2^nd conviction for the offence of taking employment when a deportation order was in force against him did not involve any violence or dishonesty, and his local connections (namely, the presence of siblings who are Hong Kong permanent residents)   However, as this court stated in Harjang Singh v Secretary for Security [2019] HKCFI 1486, at §29, the Secretary/Director are much better placed than the court to consider matters such as the risks of absconding or reoffending, and whether a detainee, if released, may pose a threat or security risk to the community, which are fact-sensitive issues and involve a broad range of considerations on which the court has little knowledge or expertise.  In all, I am prepared to give weight to the Secretary/Director’s consistent assessment that the Applicant, if released, may reoffend, abscond and/or pose a threat or security risk to the community.

38.  Fourth, the Secretary/Director have acted with diligence and speed to enforce the DO, including obtaining an emergency passport from the Consulate General of Pakistan for the Applicant’s return to his home country on 26 June 2014, and requesting the Board to accord priority to the Applicant’s case on 2 July 2020.

39.  In passing, I should mention that Mr Mok (for the Director) submits that the Applicant is pursuing the JR Application, and intends to pursue further appeals arising therefrom (if necessary), for the purpose of prolonging his presence stay in Hong Kong.  He relies upon the following statement in the Applicant’s handwritten document attached to his Affirmation dated 26 March 2021 in support of this submission:

“Further if the High Court rejected my judicial review I have the right to approach the appeal court. Furthermore if the appeal court rejected my judicial review then I have the right to approach the Court of Final Appeal. And if the Court of Final Appeal rejected my judicial review then I have the right to lodge a petition to the Hong Kong Chief Executive so all these legal proceedings will take 5-10 years so it will be very unfair with me if the Director will detain me for further few years.”

It may be argued, of course, that on a literal reading, this is merely a statement of the Applicant’s legal rights.  However, it is of note that the Applicant did not raise the NRC until June 2014, long after his 1^st conviction in June 2013 and at a time when he plainly was aware of the likelihood of a deportation order being made against him.  On the other hand, his father passed away in 2011 and, according to the Applicant, his father and his uncle had a fight over the disputed land when the former visited Pakistan in 2011 (see §26 of the Board’s Decision).  It would appear that the Applicant had delayed in raising the NRC until he saw it advantageous for him to do so.  Furthermore, the Applicant failed to diligently pursue the NRC after he had been granted release on recognizance in September 2014 (see §11 above), and only “resumed” or “restarted” the process on 25 March 2020 after his discharge from prison for his 2^nd conviction.

40.  It is well established that the use of legal proceedings to pursue a collateral purpose irrespective of merits is an abuse of the court’s process (see Secretary for Justice v Ma Kwai Chun [2006] 1 HKLRD 539, at §38(a)).

41.  All these having been said, even though I am left with a real doubt about the bona fides of the JR Application, I am prepared to assume, in the Applicant’s favour, that he is not pursuing the JR Application for a collateral purpose.

42.  In all the circumstances of this case, I do not consider that the Applicant has been detained for a period that is unreasonable.

43.  In respect of Principle (iii), the impediment to the Applicant’s removal from Hong Kong is the JR Application.  There is no apparent reason why the JR Application cannot be heard and determined within a reasonable time.  Having regard to the fact that the Applicant is currently under detention, I shall direct that the JR Application be accorded priority. A copy of this judgment shall be sent to the Listing Clerk so that an early date shall be fixed for the hearing of the JR Application.  In my view, it has not become apparent that the Secretary/Director will not be able to effect the removal of the Applicant within a reasonable time.

44.  Lastly, in respect of Principle (iv), there is no evidence to suggest that the Secretary or Director have failed to act with reasonable diligence and expedition to effect the removal of the Applicant.

45.  In conclusion, I am of the view that the Applicant’s current detention is in compliance with the Hardial Singh principles.

DISPOSITION

46.  The application for the issue of a writ of habeas corpus is dismissed, with no order as to costs.