MUHAMMAD YAMIN BUTT v. IMMIGRATION DEPARTMENT

HCAL 1468/2023

[2023] HKCFI 2465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1468 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant claims to have entered Hong Kong illegally on 15 September 2006.  He has remained in Hong Kong since then.  He is the subject of a Removal Order made on 29 June 2009, and a Deportation Order made on 23 November 2022.  Those orders were made under sections 19 and 20 respectively of the Immigration Ordinance Cap 115 (“Ordinance”).

2.  The Applicant has been in immigration detention since 30 August 2022, first under section 32(3A) of the Ordinance, and then section 29, and recently (since the making of the Deportation Order) under section 32(3).  The latter permits the detention of a person subject to a deportation order, pending that person’s deportation.

3.  The period of detention to date is 396 days, or about 13 months.  This is a substantial period of time.

4.  On 21 August 2023, the Applicant made an application for writ of habeas corpus, seeking his immediate release.  On the following day, I gave directions for the Director of Immigration to file an initial response, and to bring the matter to the hearing today.  The initial response was filed on behalf of both the Director and the Secretary for Security, who share between them the relevant powers exercised as regards the Applicant’s detention and non-release on recognizance.

5.  At the hearing, the Applicant has appeared in person with the benefit of an interpreter.  The Director/Secretary have been represented by Ms Augusta Wong, Government Counsel, who signed the initial response.

6.  This is my Decision.

B.  Background

B.1  Entry to Hong Kong

7.  The Applicant is a Pakistani national born on 1 January 1980 in Pakistan.  As stated above, the Applicant claims to have entered Hong Kong illegally by boat on 15 September 2006.  On 5 March 2007, he was arrested by the Police for being an illegal immigrant.

B.2  Removal Order and Deportation Order

8.  The Removal Order was made against him on 29 June 2009. It remains valid and extant.

9.  Following his discharge from imprisonment after the robbery conviction (see below), the Applicant originally wrote to request voluntary repatriation, saying that he missed his family and wanted to go back to Pakistan as soon as possible.  Consideration was then given as to whether or not to seek a deportation order against him.  On 4 November 2022, when informed of the intended deportation of him to Pakistan, the Applicant did not raise objection.

10.  The Deportation Order was made on 23 November 2022. It remains valid and extant.

11.  However, thereafter, the Applicant changed his mind and showed unwillingness to return to Pakistan.  In various subsequent interviews between January and August 2023, the Applicant expressed unwavering unwillingness to return to Pakistan or to cooperate.

B.3  Criminal Record and Absconding Record

12.  During his release on recognizance, the Applicant was arrested for and convicted of the following offences.

13.  On 26 November 2008, he was convicted of the offences of ‘illegally remaining in Hong Kong’ and ‘using an identity card relating to another person’.  He was sentenced to a total of 15 months’ imprisonment.  A subsequent appeal was dismissed.

14.  On 14 December 2020, the Applicant was convicted of the offence of ‘robbery’ and sentenced to 82 months’ imprisonment on 15 January 2021.

15.  There was also one occasion when the Applicant was arrested for ‘fighting in a public place’ on 5 October 2010, for which he was bound over.

16.  After his initial arrest for being an illegal immigrant, the Applicant was released on recognizance on 28 April 2007. After discharge from prison on 4 July 2009, the Applicant was again released on recognizance.

17.  However, the Applicant failed to report recognizance from 7 May 2013.  Various attempts to contact him at his reported address and by calling his reported telephone number were in vain. After having absconded for over 4½ years, the Applicant was arrested on 8 November 2017 for ‘robbery’.  No charge was laid due to insufficient evidence, and the Applicant was released on recognizance on 23 November 2017, until his subsequent arrest for ‘robbery’ on 9 February 2018, of which he was later convicted (see above).

18.  The Applicant has no relatives or close connections in Hong Kong (though he has identified a potential guarantor).

B.4  Applicant’s Non-Refoulement Claim (“NRC”)

19.  The Applicant’s torture claim was lodged on 13 March 2007. But it was only on 1 March 2013 that a completed torture claim form was submitted on behalf of the Applicant by the Duty Lawyer Service (“DLS”). That claim was rejected by the Director on 22 March 2013.

20.  On 4 April 2018, the DLS submitted a completed Supplementary Claim Form on behalf of the Applicant in respect of his NRC.  The NRC was rejected on all applicable grounds other than torture risk by the Director on 19 April 2018.

21.  There then followed a gap of almost 5 years, during which the Applicant took no further action on his NRC, until he sent an appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) on 31 March 2023 (although the appeal Petition itself was dated 12 January 2023).

22.  The Director made requests to the Board to accord priority to the case.  On 31 July 2023, Board refused the Applicant’s application for late filing of his appeal/petition.

23.  On 18 August 2023, the Applicant applied for leave to apply for judicial review against the Board’s decision. Again, via the DOJ, the Director requested priority in dealing with the application, in particular because the Applicant is held in detention and had filed this application for writ of habeas corpus.  The hearing of the application for leave to apply for judicial review took place on 20 September 2023.

24.  It could reasonably have been anticipated that the application would be determined within a few weeks.  As it happens, the decision was produced on 26 September 2026.

25.  In the decision, Deputy High Court Judge To lifted the Legal Aid stay, and explained why.  He also refused leave to apply for judicial review.  The Deputy Judge recorded that after the relevant principles and the reasons given by the Board were explained to the Applicant, he confirmed he was not aware of any error of law in the Board’s decision, and had no complaint about procedural unfairness or irrationality in that decision.  Nor had the Applicant put forward any grounds of judicial review in his Form 86.  The Deputy Judge also reviewed matters and could not detect any error of law in the Board’s decision, or procedural unfairness at any stage of the proceedings.  Nor was there any Wednesbury unreasonableness or irrationality.  Rather, the Board’s decision was described as being utterly without fault.

26.  The refusal of the Applicant’s application for leave to apply for judicial review means that there is now no legal impediment to the Applicant’s removal/deportation from Hong Kong, in accordance with the updated removal policy.

B.5  Steps towards Removal/Deportation

27.  Even prior to the Applicant’s discharge from prison after serving his last sentence, the Director had been liaising with the local Consulate General of Pakistan, to seek assistance in issuing a replacement travel document for the Applicant’s re-entry to Pakistan.  The Applicant’s identity was confirmed by the Consulate prior to his discharge.

28.  Since then, the Director has been actively following up with the Consulate through numerous letters/emails.  It was the Applicant’s refusal to cooperate which led to delay.  He refused to attend an interview with Consulate officers, and repeatedly refused to complete the re-entry seeking formalities, notwithstanding that he was informed that his lack of cooperation would inevitably lengthen his own detention.

29.  On 25 May 2023, the Consulate issued an emergency travel document (“ETD”) to the Applicant, valid for a period of 30 days from issue.  After the Applicant’s late filing of an appeal/petition was refused by the Board on 31 July 2023, extension of the validity of the ETD was arranged, so that it now expires on 3 November 2023.

30.  Prior to the Director’s knowledge of the Applicant’s judicial review leave application, a repatriation flight ticket had been purchased for the Applicant’s removal on 29 August 2023.  That intended repatriation was called off owing to the outstanding leave application.

31.  As a result of the dismissal of that leave application, and the removal of the impediment created by it, the Director has now made arrangements for a repatriation flight for the Applicant, scheduled for 6 October 2023 (namely one week from now).

B.6  Reviews of Detention

32.  The last review of detention was completed on 15 September 2023. The PAS for S considered there to be grounds for continued detention, and the Director considered that release of the Applicant on recognizance was not warranted, taking into account all relevant circumstances, which included that:

(1)  There is no sufficient reason to believe that the Applicant’s case cannot be finalised in the near future.

(2)  In light of his previous convictions for crimes of serious or violent nature, the Applicant poses, or is likely to pose, a threat or security risk to the community.

(3)  The Applicant has previously absconded, and failed to comply with terms or conditions of recognizance.

(4)  The Applicant has directly or indirectly prevented or delayed his removal through his own actions or lack of action.

(5)  The Applicant’s stated health concerns do not outweigh the factors in support of continued detention.

C.  Applicable Principles

33.  The applicable principles in the present context are well established.  They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781.  The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of any individual case.

34.  The burden is on the respondent to an application for habeas corpus to justify the continued detention as remaining lawful.

D.  Applicant’s Submissions

35.  As well as some standard references to previous authority in habeas corpus cases – of the sort apparently routinely added to the materials filed with many similar applications – the Applicant made some submissions with specific reference to his own position.  Those submissions might be summarised as follows:

(1)  The Applicant’s continued detention is unnecessary.

(2)  Pakistan is not a safe country.  (A newspaper clipping from the South China Morning Post in July 2023 was attached, relating to a suicide bombing in Pakistan.)

(3)  Therefore, the Applicant wanted to state that his life would be in danger and that he fears for his personal safety if returned to his home country.

(4)  There was procedural unfairness in conducting the review of detention.

(5)  The Director cannot clearly identify a time when he might realistically be removed from Hong Kong.

(6)  The assessment of him as a threat to security is unfounded.

(7)  The Applicant provided a copy of a medical report dated 22 April 2020, related to his foot injury suffered when he fell from a bridge whilst seeking to evade police in February 2018. Operative intervention was performed on 9 February 2018, and the Applicant was discharged from hospital on 15 February 2018.  The report noted he was able to walk unaided with residual right foot pain, though x-ray showed degenerative change over his right foot Lisfranc joints.  He was advised to obtain further treatment in his own country.

(8)  But his foot injury condition has worsened.

(9)  As pointed out by his solicitors, the Applicant has provided details of a friend willing to stand as surety/guarantor, should the Applicant be released on recognizance.

36.  At the hearing, the Applicant handed up two further news clippings, reporting on bombing attacks in Pakistan, together with the Applicant’s further notes asserting that there is no safety in that country.  In addition, the Applicant made further submissions – including by two further handwritten documents – which might be summarised as follows:

(1)  The reason why there was a late appeal – some 5 years late – was because the Applicant was in prison, and cannot read or write, and could not find a lawyer until in immigration detention. 

(2)  The Applicant did tell that to the Judge hearing his judicial review application, but the Judge did not listen. 

(3)  The Applicant applied for Legal Aid for his intended judicial review case (evidenced by a letter from the Legal Aid Department dated 19 September 2023).

(4)  But, when the Applicant was brought to court for the hearing of his application for leave to apply for judicial review on 20 September 2023, Deputy High Court Judge To told him he did not need to have any legal representative for the hearing, which went ahead.

(5)  That was unfair, because he was not provided with legal advice when he is not familiar with any legal terms.

(6)  He requests to be released on compassionate grounds so that he can assist Legal Aid gathering the documents required to assist his application for judicial review.

(7)  It cannot be ascertained how long the judicial review case will take before it is finalised, so it cannot be said that removal will be possible within a reasonable time.

(8)  He will undertake not to commit any further offences, if released on recognizance.

(9)  He will also give an undertaking to continue to report recognizance as and when required.

(10)  He can provide an address at which you will live, and a guarantor, so that he could be easily located during his stay in Hong Kong.

(11)  He cannot leave Hong Kong because his travel document is with the Immigration Department.

(12)  Since 2018, he has had injuries which are shown on the records held by the Immigration Department.  However, the claimed 24-hour medical facility is in reality limited to 2 to 3 hours of a Doctor’s attendance on weekdays only.

(13)  Even though he has been provided with medication and medical care from external facilities, sometimes his feet really hurt, and he cannot even wear a shoe on one foot.

(14)  He is not a risk to society.

(15)  Even after the Applicant absconded for 4½ years, he was still released on recognizance very quickly.  But now that he has judicial review proceedings are continuing, he has been detained for 13 months.

(16)  The Applicant asked how it is possible for him to have cooperated in the removal process, when he does not want to go back.

(17)  The Applicant also asked how the travel document could be obtained, when he had not cooperated and had not attended an interview at the Pakistani Consulate.

(18)  The Applicant also complains about the conditions of detention within TTGCI, where there are surveillance cameras and detainees are required to wrap a wrist which disturbs sleep at night.

37.  In so far as the submissions made by the Applicant really seek to address his NRC – i.e. by reference to the alleged absence of safety in Pakistan – they are not relevant to the current habeas corpus application.  On this application, the Court does not decide whether the Applicant should or should not be removed from Hong Kong.  Instead, the Court looks at the valid and extant Removal Order and Deportation Order, and considers (1) whether there is prima facie lawful authority for detaining the Applicant pending his removal/deportation from Hong Kong, and (2) whether continued detention has become or will foreseeably become unreasonable in all the circumstances, and hence unlawful.

38.  Only submissions relevant to those questions will be taken into account by me, and given such weight as seems fit in my analysis below.

E.  Whether Detention Has Become Unlawful

39.  Throughout the present period of detention, there has been prima facie lawful authority to detain the Applicant under the various sections of the Ordinance – originally section 32(3A), later section 29(1) and (2), and now section 32(3).

40.  Hence, the question arises whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention – namely 396 days, or about 13 months – against which the various other factors must be weighed and balanced.

41.  I can address the Hardial Singh principles as follows.

42.  I accept that, throughout the period of detention, the Director has been intent on removing the Applicant at the earliest possible opportunity, and that has been the only purpose of detention.  Therefore, HS1 is satisfied.

43.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the Director’s proactivity and liaison with the Consulate General of Pakistan in seeking, and eventually obtaining, the Applicant’s ETD (and subsequently obtaining its extension of validity).  HS4 is satisfied.

44.  In so far as the Applicant has repeatedly refused to complete the pre-entry formalities, he has thereby chosen to delay his deportation, and hence prolongation of his detention.  The Applicant’s complaints this morning about the issuing of the ETD to him, notwithstanding his objections, are misplaced.  The Director cannot be criticised for seeking to effect the Applicant’s deportation in accordance with the Deportation Order, once the legal impediment to removal was removed – nor for seeking to obtain the necessary travel document as would permit that deportation at the relevant time.  Nor, to my mind, is the Pakistani Consulate to be criticised for issuing the ETD to the Applicant.  As the Applicant has himself said, he is a Pakistani national, and it is only logical and appropriate that the local Consulate of his own country make the necessary arrangements to facilitate his deportation to that country (even if the Applicant himself would prefer to obstruct that deportation).

45.  There are also real and significant risks of re-offending and absconding.  As to re-offending, the Applicant was sentenced for the offence of ‘robbery’, which is serious and involved violence, and where the sentencing Court expressly regarded as an aggravating factor the fact that that the offence was committed whilst the Applicant was on bail in relation to another robbery case.  The Applicant has shown little regard for the laws of Hong Kong, and the real risk is of re-offending by committing an offence or offences of substantial adverse impact on Hong Kong society.

46.  As to absconding, the Applicant absconded and went underground for over 4½ years, until arrested on suspicion of robbery.  That the Applicant was subsequently re-granted release on recognizance does not change the fact that he absconded and disappeared for that lengthy period.  His recent lack of cooperation and stated unwillingness to return also heighten the risk of absconding.  Absconding would defeat the purpose of the detention, and the intended effect of the Removal Order and Deportation Order.

47.  As to the Applicant’s medical condition, following his discharge from hospital, the Applicant has also attended various external medical appointments between February and August 2023.  This identifies that, even if the medical condition is worsening, there is no reason to believe that the Applicant would not receive proper medical treatment whilst detained, if required.

48.  The identification of a potential surety/guarantor does not seem to me to be weighty in the necessary balancing exercise.  Nor do the Applicant prosperous complaints about the conditions of detention.

49.  Nor does it seem to me that there is any complaint properly to be made about the decision of the Deputy High Court Judge to lift the Legal Aid stay on the basis he explained, and to continue with the hearing on 20 September 2023.  Further, the Applicant’s apparent complaint that his own application for leave to apply for judicial review was dealt with expeditiously, because the Director sought priority to be given to the Applicant’s case as a person held in detention, is also misplaced.

50.  Overall, balancing the various factors to be weighed and balanced against the length of detention – here, the substantial period of 396 days, approximately 13 months – I am nevertheless satisfied that the detention to date has continued to be reasonable in all the circumstances, and hence lawful.

51.  The remaining obstacle to removal was until recently the Applicant’s outstanding application for leave to apply for judicial review, itself only filed on 18 August 2023.  But that falls properly to be viewed against the chronology which identifies that the Applicant has not pursued his NRC with diligence (see above).  Further, as already noted, the leave application Form 86 did not state any grounds of intended review of the Board’s decision.  It was likely to be dismissed on that ground alone.  There is also support for Ms Wong’s submission that the application smacked of an attempt to create a self-imposed impediment to removal.

52.  In any event, the leave application has now been determined, by its refusal.  Therefore, it cannot be said that it has become apparent that the Applicant cannot be removed within a reasonable period.  Indeed, repatriation arrangements have swiftly been made for the Applicant’s deportation – to give effect to the Deportation Order – on 6 October 2023, just one week from now.  HS3 is satisfied.

F.  Result

53.  The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.