WAQAS MUHAMMAD v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 109/2023

[2023] HKCFI 597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 109 OF 2023

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DECISION

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A. Introduction

1.  The Applicant is a subject of a Removal Order and a Deportation Order issued under the Immigration Ordinance Cap 115 (“Ordinance”). He has been held in immigration detention since 9 July 2022 pending his removal from Hong Kong. To the date of this hearing, the period of detention has lasted 227 days, or around 7½ months.

2.  On 27 January 2023, the Applicant applied for writ of habeas corpus on the basis that – as stated in the supporting affirmation – the detention has become “unlawful, unfair and unreasonable”.

3.  I gave directions for the Respondents to file an Initial Response, and so as to bring the matter to today’s hearing. At the hearing, the Applicant appeared in person with the benefit of a Punjabi/English interpreter. The Respondents were represented by Mr Eric Ko, Senior Government Counsel.

B.  Factual Background

B.1  Circumstances leading to the present detention

4.  The Applicant is a Pakistani national. He was first sighted in Hong Kong and arrested by the police as a suspected illegal immigrant on 11 November 2009. After examination by the Immigration Department (“ImmD”), he was refused permission to land in Hong Kong on 14 November 2009. He lodged a torture claim on the same day and has been staying in Hong Kong unlawfully ever since.

5.  Prior to the present period of immigration detention, he was granted recognizance by the Director most of the time and was able to live in the community rather than being held in immigration custody. The Applicant has one record of absconding from recognizance, which occurred in 2015. He surrendered himself to ImmD about 10 months later and requested the resumption of recognizance. Recognizance was then resumed.

6.  Whilst on recognizance, the Applicant committed robbery and two counts of theft, for which he was sentenced to a total of 5 years and 7 months’ imprisonment in November 2020.

7.  He was released from imprisonment on 9 July 2022 and has since that date been held in immigration detention under various authority given by the Ordinance.

8.  As said, he is the subject of both a Removal Order (issued on 22 July 2022) and a Deportation Order (issued on 21 October 2022), both of which remain extant.

B.2  The Applicant’s Non-refoulement claim

9.  The Applicant lodged a torture claim in 2009. After the implementation of the Unified Screening Mechanism (“USM”) in 2014, his torture claim was handled as a non-refoulement claim (“NRC”). The Director rejected his NRC on all applicable grounds in 2016. Apparently he attempted to make another NRC on the ground of BOR2 Risk later, but failed to support it with any additional facts as requested by the Director. That claim was also rejected by the Director, in 2017. He appealed against both decisions of the Director to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) which dismissed the appeal on 14 November 2019.

10.  On 29 November 2022, the Applicant filed an application for leave to apply for judicial review against the Board’s decision in HCAL 1355/2022. As the chronology indicates, by then, the leave application was made 3 years after the Board’s decision and about 2 years and 9 months out of time. It is notable that the application was only taken out after the present immigration detention had already begun.

11.  The leave application in HCAL 1355/2022 was recently heard before DHCJ A To on 21 February 2023. According to the Court’s record, the Applicant appeared in person with the benefit of an interpreter at that hearing. There, the Applicant said that the Board hearing was conducted through video-link, probably due to pandemic concerns at the time. But he said he did not then have the assistance of an interpreter. The Deputy Judge concluded the hearing by indicating that he would call for the transcripts of the hearing before the Board, in order to examine the Applicant’s claim that there was no interpreter. Apparently, this was – as confirmed by the Applicant today – so that the Deputy Judge could watch the video before determining the application for leave to apply for judicial review.

B.3  Steps taken by the Director to effect removal

12.  When the present detention commenced on 9 July 2022, there was no obstacle to removal, but the Applicant’s expired passport needed replacement.

13.  The Director issued a letter on 20 July 2022 to the Consulate General of the Islamic Republic of Pakistan seeking the Applicant’s re-entry into Pakistan. After the necessary procedures were complied with, the Applicant was issued with an emergency travel document (“ETD”) on 18 August 2022, with the validity of 30 days.

14.  But removal was not executed within the validity of the ETD because the Applicant had to be quarantined for first being identified as a Covid-19 close contact on 2 September 2022, and then being confirmed as a positive case himself on 18 September 2022. He was released from quarantine on 26 September 2022.

15.  Initially, the Applicant consistently expressed his willingness to return to Pakistan, on numerous occasions. However, on 10 October 2022, he had a change of heart and indicated that he did not wish to go back to Pakistan.

16.  He then applied for leave for judicial review in HCAL 1355/2022 on 29 November 2022. The leave application has since then become an impediment standing in the way of removal.

17.  On 25 October 2022, the ImmD managed to liaise with the Consulate General for the extension of the Applicant’s ETD, which was extended till 4 December 2022. On 3 February 2023, the ETD was further extended to 3 March 2023.

B.4  Review of Detention

18.  The Secretary had conducted a review of the Applicant’s detention on 13 February 2023 and recommended continued detention rather than release on recognizance. The grounds or factors relied upon could be summarized as followed:

(1)  The applicant’s removal is going to be possible within a reasonable time. It was noted that HCAL 1355/2022 would be heard on 21 February 2023 and that this habeas corpus application would be heard on 24 February 2023. There was no reason why both cases would not be concluded within reasonable time.

(2)  The Applicant poses, or is likely to pose, a threat or a security risk to the community. His criminal record for robbery and theft, as well as the length of sentence was relied upon as support. These offences were committed whilst he was on recognizance. It was noted that he once absconded for about 10 months.

(3)  Relying on above facts, the Secretary was also of the view that the Applicant may abscond or re-offend if released on recognizance.

(4)  There are no other circumstances favouring the Applicant’s release. It was noted that the Applicant has requested to be released on the basis of having family connections in Hong Kong or that there are Hong Kong permanent residents (“HKPRs”) who could act as his guarantors, or that he was suffering from pain or liver problem. The Secretary was of the view that these factors do not outweigh factors favouring continued detention and that his HKPR sister and brother-in-law are not in Hong Kong according to immigration records.

C.  Applicable Principles

19.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present. 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 this case.

20.  I will apply those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

21.  Attached to the Applicant’s supporting affirmation are 243 pages of written materials. About 40 pages of them are hand-written notes, which I presume are intended to be some sort of written submissions. The remaining 200 pages mostly consist of news cuts, the Applicant’s vaccination records, his medical notes whilst detained and the written submissions he previously submitted to the Director requesting his release from detention.

22.  The 40-odd pages of hand written notes appear to have come from several different hands. Most of them appear to be quotes from different judgments or textbooks which might touch upon the law on habeas corpus applications, without explaining how the law could apply to the specific facts of the Applicant’s case. There is also recitation of general facts which, again, does not pertain to the Applicant’s specific cases, e.g. the statistics of Form-8 holders arrested for criminal offences. There are also parts which appear to be copied from other persons’ applications, e.g. there are 2 pages headed “relief sought” followed by a list of relief which is largely copied from a recent case also heard by me in HCAL 1329/2022 concerning alleged unequal treatment between detainees held in the Castle Peak Bay Immigration Centre and the Tai Tam Gap Correctional Institution, followed by another 2 pages of arguments on unequal treatment between the two institutions.

23.  The pages which seem to be directly relevant to the Applicant’s case are found in the first 4 pages. There were attempts to make argument by reference to the usual Hardial Singh principles, as well as the grounds relied upon by the Secretary in refusing recognizance. Trying my best to summarise them, the arguments seem to be:

(1)  The power for detention could only be used for the purpose of effecting removal, but the Director detained the Applicant for his past criminal offences for which he had already served his sentence.

(2)  The power for detention could not be used to prevent a person from re-offending, which the Director is doing. In any event, the Applicant is of the view that the risk of his re-offending is low. He is not a repeated offender.

(3)  He does not know why the Director said he may pose a security risk to the community. Whilst he was imprisoned, he managed to obtain all the remission for his good behaviour in the prison.

(4)  The Director will not be able to remove him within a reasonable time. This is because his judicial review leave application in HCAL 1355/2022 is still ongoing. His leave application is not ready to be heard because he has applied for legal aid.

(5)  The Director should act with reasonable diligence to remove him and yet no action was taken to effect his removal.

24.  At the oral hearing, the Applicant further submitted a further four-page written document, which he explained had been written by a friend because he is illiterate. Most of the points made in that document had already been made in the previous materials filed. He also made further oral submissions. Broadly summarising the submissions made at the hearing, the Applicant said:

(1)  after finishing his prison sentence, he was transferred to TGCI without prior notice;

(2)  he then had a period of quarantine, in Stanley prison and subsequent isolation for a period back in TGCI;

(3)  whilst he had previously indicated that he was willing to return to his home country, in October 2022 his family informed him that the problems had not gone away, so that his life was in danger and they asked him to stay in Hong Kong;

(4)  as a result, he changed his mind about returning;

(5)  if released on recognizance he would try to resolve the problems in his home country, so that he could return;

(6)  the criminal convictions for which he served his sentence arose from his being framed, and were unfair to him;

(7)  the medical problems from which he suffers, including liver problems, cause him difficulties in TGCI, and the treatment offered is insufficient, or inconsistent with the advice of his private doctor;

(8)  he has offered a guarantee by HKPRs, even though they are currently out of Hong Kong, but they will be back within 2 to 4 months and he would reside with them;

(9)  he would comply with any conditions for release;

(10)  no concrete assessment can be made as to when the Applicant might actually be removed;

(11)  two great weight has been given by the Director to the risk of reoffending and absconding against the actual circumstances of the Applicant’s previous conduct in those respects;

(12)  insufficient consideration has been given to the circumstances which support release rather than detention;

(13)  though he is illiterate, he has said whatever he can to the Court, and if he has made mistakes, he apologises to the Court.

25.  I will bear all these points in mind in my overall assessment below and make references to them as appropriate.

E.  Whether Detention has become unlawful

26.  There was and remains clear prima facie lawful authority for the detention of the Applicant. The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

27.  The starting point is the Applicant has been detained for the period of 227 days, or about 7½ months. It is against this period that the other factors are to be weighed and balanced.

28.  But it must also be remembered that this application is neither (1) an opportunity to reargue the NRC, not to raise new matters which might be relevant to such a claim, nor (2) an opportunity to make a collateral attack on the previous criminal convictions. In other words, this application does not raise the question as to whether or not the Applicant should be removed from Hong Kong, or whether or not he was previously properly convicted and imprisoned. This application is simply to determine whether in the overall circumstances it has become unreasonable, and hence unlawful, to continue to detain the Applicant until his removal.

29.  I can address the Hardial Singh principles broadly in turn, as follows.

30.  I accept that the Secretary/Director intend to deport the Applicant and have been only using the power to detain for that purpose. The Applicant’s claim that he was detained for his past criminal offences or preventing him from re-offending was misconceived. Whilst the Director is entitled to take, and has taken, into account the Applicant’s criminal record and the risk of re-offending in refusing to grant him recognizance, it does not mean that the Applicant was detained for the purpose of preventing him from re-offending. HS1 is plainly satisfied.

31.  I am also satisfied that the Director has acted with reasonable diligence in effecting removal, as evidenced in the active liaison with the Consulate General in obtaining the ETD and twice extending its validity. Currently the impediment to removal is the leave application in HCAL 1355/2022 which the Applicant saw fit to institute almost 3 years out of time and only after the present detention had commenced. The Applicant’s assertion that the Director had taken no action to effect his removal is plainly wrong. HS4 is satisfied.

32.  Before the Applicant instituted the leave application on 29 November 2022, the only impediment was the practical one in the need to obtain a replacement travel document, which was indeed quickly obtained on 18 August 2022. It was then reasonable to take the view that the Applicant could be removed within a reasonable time. The Applicant’s quarantine in September 2022 might have prevented removal within the first period of validity of the ETD, but that obstacle was obviously temporary and soon ended.

33.  As it now stands, the leave application in HCAL 1355/2022 became and is only the only remaining obstacle. There is no reason to believe that it would not be concluded within a reasonable time. The application has already been heard three days ago and a decision is now awaited pending the transcripts of the Board hearing being provided to the Court for consideration in making that decision. It is likely that the Court will make a decision after having obtained the transcripts, fairly quickly.

34.  I also give some weight to Mr Ko’s submissions that given the Applicant’s previous criminal and absconding records, the risk of re-offending and absconding if released on recognizance could not be said to be low. Absconding after release on recognizance would frustrate the very purpose for which the powers to detain were conferred. On that note, the Applicant’s own view that his chance of re-offending is low remains, as said, his own view. I am not sure if he could be said to be a repeated offender, if the robbery and the theft were committed as a single incident, but that is neither here nor there in the context. They were serious offences, as reflected in the sentence, and repeated offences may be as serious.

35.  As to the Applicant’s medical condition, I note from Mr Ko’s submissions that there are medical officers at TGCI, and that the medical records identified that arrangements have also been made for the Applicant to attend outside medical appointments in hospitals on six occasions between August and December 2022. On that basis, I do not think there is any reason to think that appropriate medical care is not available to the Applicant whilst he is detained.

36.  As to his family ties in Hong Kong, I acknowledge that the Applicant’s sister and brother-in-law are HKPRs. But immigration records identify that the sister has not been in Hong Kong since January 2020, and the brother-in-law thus left Hong Kong in November 2022. Even on the Applicant’s own case, they are unlikely to return to Hong Kong until a further 2 to 4 months. It is not unreasonable to assume that the application for judicial review would have been determined within that time.

37.  The medical and family time matters do not seem to me to alter the overall balance as to whether or not the detention has remained lawful.

38.  In conclusion, assessing all the factors against the detention period of 7½ months, I am satisfied that the detention has remained and will remain for a period which is lawful. HS2 and HS3 are satisfied.

F.  Result

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