AHMED KHAWAJA v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 1438/2023

[2023] HKCFI 2348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1438 OF 2023

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BETWEEN

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REASONS FOR JUDGMENT

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A. Application

1.  By an ex parte application dated 17 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.  At the end of the hearing, I dismissed the Applicant’s application, with reasons to be handed down. These are the reasons.

B. Background of Applicant

3.  The Applicant is a Pakistani national born in 1992 who was arrested for remaining in Hong Kong illegally on 4 September 2014. He raised a non-refoulement claim (“NRC”) on 6 September 2014.

4.  On 8 September 2015, a removal order was issued against the Applicant. On 6 December 2022 a deportation order was made against the Applicant (the “Deportation Order”). The Applicant’s passport had expired in December 2022.

5.  The Immigration Department ceased the Applicant’s recognizance on 14 April 2023, on the basis that there was no indication of legal impediment hindering the Applicant’s removal. The Applicant has since then been detained under section 32(3) of the Ordinance pending his removal under the Deportation Order. On the same day, the Applicant had refused to complete re-entry formalities in applying for a valid travel document.

6.  At the time of the hearing, the Applicant has been detained for 153 days.

C. NRC related proceedings

7.  The Applicant’s NRC was based on alleged fear of being killed by Gul Panrah’s brother and father for his involvement in the secret wedding of Gul Panrah and Nasir.

8.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 9 May 2018 by a notice of decision (the “Director’s Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 24 September 2018 (the “TCAB Decision”).

9.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision was dismissed by the Form CALL-1 in HCAL 2343/2018 dated 2 March 2022 (the “JR Decision”). The Applicant’s application for extension of time to appeal against the JR Decision was dismissed on 10 June 2022.

10.  The Applicant’s renewed application to the Court of Appeal for extension of time to appeal against the JR Decision was dismissed on 13 July 2022.

11.  The Applicant had filed a Notice of Motion on 17 August 2023 to the Court of Appeal for leave to appeal to the Court of Final Appeal (the “Notice of Motion”) under CAMP 245/2022.

12.  According to the updated removal policy of the Immigration Department 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.  There is thus no legal impediment to the Applicant’s removal due to any outstanding NRC related proceedings even though the determination of the Notice of Motion is pending.

D. Criminal Record & Sentencing Record

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

Date of Conviction	Offence	Period of Sentence
20 November 2014	Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully	14 months
6 November 2017	Using an identity card relating to another person and taking employment while being a person in respect of whom a removal order is in force	15 months (running concurrently)

E. Steps towards Removal

15.  There is no dispute that the only practical obstacle to removal is the need to obtain a travel document to replace the Applicant’s expired passport.

16.  Within a week after the Applicant’s detention, the Immigration Department had written to the Consulate General of the Islamic Republic of Pakistan (the “Pakistan CG”) on 20 April 2023 requesting a replacement travel document to be issued to the Applicant as his passport had expired in December 2022.

17.  On 23 June 2023, the Applicant indicated his unwillingness to return to Pakistan during an interview conducted at the Tai Tam Gap Correctional Institute and once again refused to complete re-entry formalities in applying for a valid travel document.

18.  In view of the Applicant’s failure to co-operate in completing the re-entry formalities in applying for a valid travel document, the Immigration Department proactively submitted documents to the Pakistan CG on 28 July 2023, including the Applicant’s photo and a copy of the Applicant’s expired travel document to the Pakistan CG for the issuance of the Applicant’s emergency travel documents. A meeting was held on 31 July 2023 between the Immigration Department and the Pakistan CG when it was indicated that the case was under active processing.

19.  On 17 August 2023, the Pakistan CG issued an emergency travel document to the Applicant which was valid for 30 days (until 16 September 2023). On 23 August 2023, a repatriation flight on 14 September 2023 was arranged for the Applicant.

F. Applicable Principles

20.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [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 3 August 2023 (filed on 17 August 2023). In summary, they are as follows:

(1) The Applicant relies on Article 28 and 41 of the Basic Law.

(2) The length of the detention since 14 April 2023 has become an indefinite detention. The Applicant said that that an initially lawful detention can become unlawful if it falls foul of the Hardial Singh principles.

(3) The Applicant claims that the detention commenced on 26 January 2021 and had lasted for over 820 days. However, upon confirmation with the Applicant at the hearing, this was incorrect. He has in fact been in detention for 153 days.

(4) The Applicant submitted that he had not missed any interviews arranged by the Immigration Department.

(5) Further, the Applicant submitted that he had not been charged since 2018.

(6) The Applicant submitted that he could provide someone who is a permanent resident to act as guarantor.

23.  The Applicant also relies on various quotes from the Administrative Law volume of the Halsbury’s Laws of Hong Kong as well as certain habeas corpus cases.

24.  At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1) His NRC is still in progress, with the determination of the Notice of Motion pending.

(2) He has not absconded in the past and will not abscond.

(3) He seeks justice.

25.  I shall bear these points in mind as appropriate in my analysis below.

H. Lawful Authority for Detention?

26.  The Deportation Order was issued on 6 December 2022 and remains valid. The Applicant has been detained from 14 April 2023 to 13 September 2023 (153 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.

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

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

I. Whether Detention has become unlawful

29.  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”).

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

HS1

31.  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

32.  The starting point is the length of the detention – about 5 months (153 days) - against which all the other factors must be weighed and balanced.

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

(1) There is no dispute that from the very beginning of the Applicant’s detention in April 2023, the Applicant has refused to co-operate in obtaining a valid travel document to enter Pakistan. The Applicant has again in June 2023 refused to complete any re-entry formality for applying a travel document.

(2) T here is nothing to indicate that but for the Applicant’s repeated refusal to co-operate in obtaining a valid travel document, there was any further obstacle to his repatriation, hence release from detention.

(3) I agree with Mr Wong that the length of the current detention was at least partly attributable to the Applicant’s self-inflicted hindrance and thus it lies ill in the mouth of the Applicant to complain about the length of the detention. He had consciously and deliberately refused to co-operate, which led to the impossibility of earlier 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.

(4) Deportation is imminent with a repatriation flight scheduled for 14 September 2023, the day after the hearing. I am satisfied that there is sufficient prospect of removal within a reasonable timescale.

(5) The Applicant has not been convicted of an offence since 2018, and hence there is no basis to suggest that there is a high risk of re-offending.

(6) On the other hand, however, given the Applicant’s clear attitude in the past that he is unwilling to be repatriated, the risk of absconding is real.

(7) The Applicant’s local connection is weak, with only one person being put forward as a guarantor. There is no indication that this person is a family member. No information has been given about this person, other than an identity card and a direct debit bank advice.

(8) Overall, weighing the period of detention – around 5 months – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

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

(1) The Director had, soon after the commencement of the Applicant’s detention, on 20 April 2023, sought the assistance of the Pakistan CG to issue the Applicant with a travel document upon discovering that his passport had expired.

(2) The Director had proactively sent the Applicant’s photo and a copy of his expired passport to the Pakistan CG on 28 July 2023 to apply for travel document for the Applicant.

(3) A repatriation flight has been arranged as soon as the emergency travel document became available.

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

35.  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.

36.  Therefore, there is no substance in the Applicant’s reliance on Articles 28 and 41 of the Basic law as I find that the detention is lawful and not arbitrary.

J. Result

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