ALI NAZAKAT v. DIRECTOR OF IMMIGRATION AND OTHERS

HCAL 436/2024

[2024] HKCFI 1133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 436 OF 2024

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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 7 March 2024, 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 Immigration Department (the “Department”). The Applicant originally named the Director of Immigration (the “Director”) and Hong Kong SAR Government as the respondents. However, as the Applicant is being detained under the authorisation of the Secretary for Security (the “Secretary”), he should be added as the 3^rd respondent. The Applicant did not object to adding the Secretary as the 3^rd respondent. The application thus proceeded on that basis.

B.  Background of Applicant

2.  The Applicant is a Pakistani national. Between 2008 and 2013, the Applicant had applied for a dependant visa on multiple occasions. His applications and requests for reconsideration were all refused by the Department as the Department was not satisfied that his claimed relationship with the resident father to be a genuine one. His application for a visitor visa was also refused in July 2013.

3.  The Applicant claimed that he had entered Hong Kong illegally in 2016. On 9 December 2016, the Applicant was arrested by the Police for rape, fraud and theft, for which he was convicted in November 2018 (the “Convictions”). He was discharged from prison on 23 August 2023 and was immediately remanded under WKCC 2568/2017 for Illegal Remaining. Therefore, despite the fact that the Applicant had served his prison sentence for the Convictions, he had not been released.

4.  On 26 October 2023, the Applicant was brought up to the magistracy for his illegal remaining charge. He was granted bail by the Magistrate and the case was adjourned to 23 November 2023 (thereafter further adjourned to 16 August 2024) for mention. However, on the same day, the Director, under section 32(2A) of the Immigration Ordinance (Cap. 115) (the “Ordinance”) detained the Applicant in Castle Peak Bay Immigration Centre (“CIC”) pending a decision on whether a removal order should be made against the Applicant.

5.  On 16 November 2023, a removal order was issued against the Applicant (the “Removal Order”) which remains valid.

6.  At the time of the hearing, the Applicant has been detained for 180 days.

C.  NRC related proceedings

7.  On 10 January 2017, the Applicant lodged a non-refoulement claim (the “NRC”). The NRC was rejected by the Director on 27 July 2017 (the “Director’s Decision”).

8.  The Applicant filed an appeal against the Director’s Decision to the Torture Claims Appeal Board (the “TCAB”) on 3 August 2017 (the “Appeal”). The TCAB dismissed the Appeal on 21 September 2023 (the “TCAB Decision”). The Applicant applied for leave to commence judicial review on 13 November 2023 (the “JR Application”).

9.  The hearing of the JR Application on 18 January 2024 was adjourned due to the Applicant indicating that he wished to apply for legal aid. The application for legal aid was taken out in February 2024 and refused on 8 April 2024.

10.  The JR Application has been re-fixed to be heard on 30 April 2024, being 8 days from the present hearing for habeas corpus.

11.  According to the updated removal policy of the Department since 7 December 2022, once an 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.

12.  In light of the JR Application, there remains a legal impediment to the Applicant’s removal.

D.  Criminal Records

13.  On 9 January 2019, the Applicant was convicted and sentenced for the following crimes:

	Offence	Sentence
1.	Rape	8 years and 6 months
2.	Conspiracy to obtain property by deception	2 years (1 year and 6 months of which to run consecutive to rape sentence)
3.	Fraud	2 years (to run concurrently with conspiracy to obtain property by deception sentence)
4.	Theft	1 year and 4 months (to run concurrently with conspiracy to obtain property by deception and fraud sentence)

E.  Steps towards Removal

14.  At an interview conducted on 27 October 2023, the Applicant had indicated that he is unwilling to return to Pakistan. This was repeated on 6 December 2023, 29 December 2023, 11 January 2024, 18 January 2024, 21 January 2024, 26 February 2024 and 27 February 2024. He also refused to complete the re-entry form, photo taking and attend an interview with the Consulate General of the Islamic Republic of Pakistan (“Pakistan CG”).

15.  In view of the Applicant’s failure to co-operate in completing the re-entry formalities in applying for a valid travel document, the Department had on 12 March 2024 written to the Pakistan CG requesting the issuance of a replacement travel document.

16.  On 21 March 2024, the Pakistan CG issued an emergency passport to the Applicant, which has expired by the time of the hearing (valid until 19 April 2024).

F.  Applicable Principles

17.  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.

18.  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

19.  The Applicant has set out the following in his affirmation:

(1)  He has a medical condition where blood comes out of his mouth and there was rectal bleeding and he could not receive proper treatment and medication whilst in detention.

(2)  He claimed that he could get cancer if he cannot obtain a private operation.

20.  The Applicant is now represented by Mr Levaire, who had also made submissions on his behalf. I have borne these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

21.  The Applicant has been detained from 26 October 2023 to 1 November 2023 under section 32(2A)(a) of the Ordinance pending a decision on whether a removal order should be made against the Applicant.

22.  On 2 November 2023 to 16 November 2023 the Applicant was further detained under section 32(2A)(b) of the Ordinance.

23.  On 16 November 2023, the Removal Order was made and the Applicant was detained under section 32(3A) of the Ordinance pending his removal pursuant to the Removal Order until 4 April 2024.

24.  From 5 April 2024, the Applicant was detained under section 29(1) of the Ordinance pending enquiry as to whether the Applicant ought to be deported from Hong Kong.

25.  From 19 April 2024, the Applicant has been detained under section 29(2) of the Ordinance pending enquiry as to whether the Applicant ought to be deported from Hong Kong.

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

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

I.  Whether Detention has become unlawful

28.  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”).

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

HS1

30.  Mr Levaire, submitted that the true purpose of the Applicant’s detention was not solely for the removal of the Applicant throughout the detention period. It is submitted that other reasons, such as the concerns of releasing someone who had been convicted of serious crimes were involved.

31.  Mr Levaire relies on the fact that in the Internal Minute M1 dated 26 October 2023 (which is an internal consideration of whether the Applicant ought to be further detained under section 32(2A)(a) of the Ordinance), the boxes next to:

“1. Subject’s removal from Hong Kong is imminent and / or immediate repatriation is being arranged for subject’s departure.”

and

“a. Subject’s removal is going to be possible within a reasonable time.”

are not ticked whereas the boxes next to:

“7. Subject poses, or is likely to pose, a threat or security risk to the community.”

and

“8. Subject has conviction(s) associated with crime(s) of serious or violent nature.”

are ticked, to submit that HS1 is not complied with as detention was not for the purpose of removal.

32.  I reject this submission. The HS1 requirement concerns the Director’s intention to deport the person and he can only use the power to detain for that purpose. This intention is not challenged. Such intention is in any event clearly shown by the fact that the memo was for the consideration of whether authority under section 32(2A)(a) of the Ordinance should be exercised: 32(2A)(a) of the Ordinance concerns detention pending a decision as to whether a removal order should be made against the Applicant. The Removal Order was subsequently made less than a month later on 16 November 2023. The fact that at that time the Applicant was also considered a threat or security risk to the community, or that he had been convicted of crimes of a serious or violent nature does not negate the existence of an intention of the Director to remove the Applicant.

33.  I am satisfied that the Director has detained the Applicant for the purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

34.  The starting point is the length of the detention – about 180 days – against which all the other factors must be weighed and balanced.

35.  Mr Levaire submitted that for the following reasons, HS2 and HS3 are not satisfied:

(1)  The Respondents cannot ascertain a reasonably clear timeline to remove/deport the Applicant from Hong Kong within a reasonable time, it is more likely than not that the continued detention would become unreasonable, and therefore illegal.

(2)  There remains a legal impediment to the Applicant’s removal as the JR Application has not yet been determined. There is no indication as to whether this first attempt at judicial review will be successful or not. There is no basis for the Respondents to assume that his JR Application will automatically end in a refusal.

(3)  The Applicant would lodge a legal aid appeal against the refusal.

(4)  The bail conditions constitute another legal impediment as there was a condition that the Applicant ought not leave Hong Kong.

(5)  The Applicant’s need for medical attention due to his conditions ought to be taken into account. The CIC does not have satisfactory medical care for the Applicant.

(6)  The Applicant is unable to attend to his elderly father in Hong Kong.

(7)  The risk of abscondence is low as the Applicant had adhered to previous recognizance conditions.

36.  For the following reasons, I find that HS2 and HS3 are satisfied:

(1)  At the commencement of the Applicant’s detention, no JR Application had yet been taken out and the Applicant had no right to remain in Hong Kong. There was no legal impediment to the Applicant’s removal when the Director took the Applicant into detention.

(2)  Mr Levaire submitted that the prohibition to leave Hong Kong as part of the bail conditions imposed by the Magistrate on 26 October 2023 constituted a legal impediment. I am of the view that the reliance on the bail conditions as a legal impediment is misplaced. The prohibition to leave Hong Kong was imposed by the Magistrate under a separate and different jurisdiction. Further, when the Applicant appeared before the Magistrate on 26 October 2023, there was no JR Application in place. There is no evidence that the Magistrate was informed when he imposed the bail conditions that as at that date, under the current policy, the Applicant was to be removed.

(3)  The Applicant did not indicate that he wished to take out legal aid application until the hearing on 18 January 2024. This is more than 2 months after the JR Application was taken out. The application for legal aid was eventually only taken out in February 2024. If the Applicant had intended to apply for legal aid, he ought to have done so at the earliest opportunity, especially when he was already at that time legally represented. I consider this 3-month delay to have been self-created.

(4)  In Johnson Benjamin v Director of Immigration & Secretary for Security[1], the Court of Appeal held that in general, any period of detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted and regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are circumstances to show otherwise. As such, the delay caused by the Applicant would not be counted as an unreasonable period.

(5)  Although there remains a legal impediment to the Applicant’s removal, being the outstanding JR Application, the hearing for the JR Application has now been scheduled to be held on 30 April 2024, which is 8 days from today.

(6)  A preliminary assessment of the Applicant’s NRC and the TCAB Decision does not reveal any strong ground on why the grant of leave to commence judicial review would be likely.

(7)  There is also no obvious reason why any further adjournment of the JR Application would likely be granted by the Court of First Instance due to the outstanding legal aid appeal.

(8)  In R (Sheikh) v Secretary of State for the Home Department[2], Andrew Henshaw QC (sitting as a Judge of the High Court) relied on the judgment of the Court of Appeal in R(MH) v Secretary of State for the Home Department[3], where it was found that if there was some prospect of the [authority] being able to carry out enforced removal, although there was no way of predicting with confidence when this might be, that was a sufficient prospect to justify a long period of detention, coupled with other factors such as high risk of abscondence and serious re-offending.

(9)  The JR Application hearing is now scheduled for 30 April 2024. In the usual course of such applications for leave to commence judicial review, a decision would likely be rendered with 3 months after the hearing. I am of the view that in the present case, there is sufficient prospect of the Applicant being removed within a reasonable timeframe.

(10)  The Applicant had since the commencement of his detention been un-cooperative in the removal process, including non-compliance with re-entry formalities and refusal to attend interviews with the Pakistan CG. This shows unmistakable unwillingness to be removed, which would lead to an indication of a high risk of abscondence. If the Applicant absconds, this would frustrate the very purpose that he was detained in the first place. I place importance on this risk of abscondence.

(11)  There is insufficient basis for the Applicant to submit that he had never absconded in the past, when within a few months of his arrival in Hong Kong in 2016, he was arrested and thereafter sentenced for 8 years for the serious crimes that he had committed. After the completion of his prison sentence, he was immediately detained. There was thus hardly any time that he was on recognizance and there was hardly any opportunity for him to abscond.

(12)  Despite the fact that the Applicant’s father is willing to act as surety and the Applicant is willing to comply with reporting conditions, given the Applicant’s clear attitude that he is unwilling to be repatriated and his record of abscondence, the risk of absconding remains and is real.

(13)  The Applicant’s past criminal records involve crimes of a sexual violence nature and dishonesty. I am of the view that chance of re-offence for dishonesty-related crimes is real as the Applicant does not have the right to work in Hong Kong and might be tempted to turn to criminal activities to earn a living.

(14)  As to the need to tend to the Applicant’s elderly father, the Department had in the past rejected the authenticity of the father-son relationship. In any event, such need does not override the previous considerations set out.

(15)  There is no evidence that the medical attention that the Applicant has received was insufficient. To the contrary, when there was a need, the Applicant was taken to the Tuen Mun Hospital. The Applicant’s complaint for having to wait for an operation to be carried out is a common complaint for patients who are Hong Kong residents as well. The reality is that there is a long wait for non-urgent operations in public hospitals.

(16)  Overall, taking into account all the relevant factors, I am satisfied that HS2 and HS3 are met.

HS4

37.  In view of the steps that had been taken by the Director as set out in paragraphs 14 – 16 above, I am of the view that the Director had diligently pursued the Applicant’s removal and I am satisfied that HS4 is satisfied.

38.  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.  Costs

39.  Ms Kao seeks costs against the Applicant. I agree that in circumstances where an Applicant confuses (whether deliberately or not) an application for habeas corpus with a re-run of his/her non-refoulement claim, and where there is no basis for taking out the application at all, there may be grounds for the Department to seek costs against such Applicants.

40.  However, in the present case, I am of the view that the Applicant should not be penalised in costs even though his application is unsuccessful, as there remains a legal impediment to the Applicant’s removal. It cannot be said that the application was wholly without basis.

K.  Result

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