MAROOF ASHAR v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 884/2024

[2024] HKCFI 2030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 884 OF 2024

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REASONS FOR JUDGMENT

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A.  Application

1.  By an ex parte application dated 3 June 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 “Application”). The Applicant thereby seeks release from the custody of the Correctional Services Department.

2.  At the end of the hearing I allowed the application with reasons to be handed down later. These are my reasons.

B.  Background of Applicant

3.  The Applicant is a Pakistani national who claimed to have entered Hong Kong illegally on 15 December 2021 and was arrested by the Police on 31 December 2021. He was referred to the Immigration Department (the “Department”) for further handling on 4 January 2022. He was released on recognizance on 28 January 2022.

4.  A Removal Order was made against the Applicant on 28 February 2022 (the “Removal Order”).

5.  On 13 September 2022, while being on recognizance, the Applicant was arrested for “False Imprisonment”. The Applicant was remanded in jail custody from 15 September 2022 to 14 February 2024. On 14 February 2024, the Applicant was convicted of “False Imprisonment” and was sentenced to 26 months’ imprisonment.

6.  Since being discharged from prison on 15 March 2024, the Applicant has been detained at Tai Tam Gap Correctional Institution. As at the date of hearing of the Application, the Applicant has been detained for 140 days.

7.  The Applicant’s Pakistan passport will expire on 31 August 2024.

C.  NRC related proceedings

8.  The Applicant lodged a non-refoulement claim (the “NRC”) on 4 and 5 January 2022.

9.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 25 July 2022 by a notice of decision (the “Director’s Decision”).

10.  The Applicant lodged an appeal to the Torture Claims Appeal Board (the “TCAB”) against the Director’s Decision on 8 August 2022. The TCAB dismissed the Applicant’s appeal on 14 May 2024 (the “TCAB Decision”).

11.  The Applicant applied for leave to commence judicial review of the TCAB Decision (the “JR Application”) on 20 June 2024. The JR Application was stayed for 42 days from 9 July 2024 upon the Applicant’s application for legal aid.

12.  The Director had written to the Director of Legal Aid on 26 and 30 July 2024 and asked to accord priority to the Applicant’s legal aid application. On 30 July 2024, the Director of Legal Aid replied that they would aim to make a decision as soon as possible or on or before 20 August 2024.

13.  According to the Department’s removal policy 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.

14.  As the JR Application has not yet been heard, there remains a legal impediment to the Applicant’s removal.

D.  Criminal Record & Sentencing Record & Abscondence

15.  The Applicant’s criminal and sentencing record is as follows:

Date of Sentence	Offence	Period of Sentence
14 February 2024	False imprisonment	26 months

E.  Steps towards Removal

16.  After the commencement of the Applicant’s detention, on 8 May 2024, the Applicant indicated his refusal to return to his home country during an interview. This attitude was repeated on 22 May 2024, 30 May 2024, 5 June 2024, 19 June 2024, 24 June 2024, 2 July 2024, 12 July 2024 and 16 July 2024.

17.  The Department had liaised with the Legal Aid Department and the TCAB and requested the relevant procedures to be expedited. The Department had also liaised with the Consulate of the Islamic Republic of Pakistan (the “Consulate”) in relation to the issue of an emergency travel document when the Applicant’s passport expires by the end of August 2024.

F.  Applicable Principles

18.  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.

19.  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

20.  The Applicant has set out his grounds for application in his affirmation dated 31 May 2024. In summary, they are as follows:

(1)  Removal cannot be effected within a reasonable timescale.

(2)  What was initially a lawful detention has become unlawful.

(3)  He has a pending JR Application. There is no indication that his JR Application would be dealt with within a reasonable period of time. There thus remains a legal impediment to his removal.

(4)  He has local connections, with a wife who is a Hong Kong resident.

(5)  He can offer a guarantor to assure that he has a place to live.

(6)  He has asthma.

21.  At the oral hearing, the Applicant relied upon his earlier written materials and made further submissions. In addition to his submissions made in his affirmation, the Applicant stated the following:

(1)  In relation to his criminal conviction, he alleged that he only pleaded guilty because by the time of the trial, he had already been detained for so long that any likely sentence that would be imposed would likely to have been served.

(2)  He has already served a sentence for his crime.

(3)  He needed to take care of his wife.

22.  I have borne these points in mind in my analysis below.

H.  Lawful Authority for Detention?

23.  Up to the hearing on 1 August 2024, in total, the Applicant has been detained for 140 days.

24.  The Applicant was detained under various provisions of the Immigration Ordinance (the “Ordinance”) during the period of his detention:

Period	Detention
15 March 2024	Section 32(3A) of the Ordinance pending the Applicant’s removal pursuant to the Removal Order
15 March 2024 – 14 May 2024	Section 37ZK of the Ordinance pending final determination of the Applicant’s torture claim
14 May 2024 – 23 July 2024	Section 32(3A) of the Ordinance pending the Applicant’s removal pursuant to the Removal Order
24 July 2024 to present	Section 29 (1) of the Ordinance pending inquiry as to whether a deportation order ought to be made against the Applicant

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

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

I.  Whether Detention has become unlawful

27.  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 for Security (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”).

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

HS1

29.  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

30.  The starting point is the length of the detention – about 140 days – against which all the other factors must be weighed and balanced.

31.  For the following reasons, I am not satisfied that HS2 and HS3 are satisfied:

(1)  At the time when the Applicant’s detention commenced on 15 March 2024, the Applicant’s appeal against the Director’s Decision to the TCAB had not yet been dismissed. Miss Celina Lam, counsel for the Respondents, accepted that under the Department’s policy, the Applicant would not be removed before the TCAB rendered its decision. As such, there has always been a legal impediment to the Applicant’s removal since the commencement of the detention.

(2)  It appears to me that from the beginning of the Applicant’s detention, it would have been apparent to the Secretary/Director that they would not be able to effect the Applicant’s deportation within a reasonable period. This is because it is known that the vast majority of such NRC applicants will always attempt to exhaust all legal avenues and procedures (which they are currently legally entitled to do so) in the hope that their NRC would be allowed. This almost always involves applying for leave to commence a judicial review against a decision of the TCAB that dismisses an appeal against a Director’s decision in relation to a NRC.

(3)  Therefore, when the Applicant was detained even before the decision from the TCAB Decision was available it would have been within the contemplation of the Director that there might be further challenges taken by the Applicant and that pursuant to the policy of the Department, the Applicant would not be removed until after the completion of his JR Application.

(4)  The Applicant’s appeal to the TCAB was only dismissed 2 months after his detention. The Applicant then filed the JR Application on 20 June 2024 (out of time by 10 days). As of 20 June 2024 therefore, there was still a legal impediment to the Applicant’s removal. By then, the Applicant had already been detained for more than 3 months.

(5)  Now that the Applicant had applied for legal aid and the legal aid stay is in place, the hearing for the JR Application will be delayed further and will not be listed for a hearing until at least after 20 August 2024. Even assuming a hearing date can be secured immediately for September 2024 (for which there can be no guarantee), as admitted by Miss Lam, the likely time when a decision could be rendered by the Court of First Instance for the JR Application would likely be November 2024 at the earliest. This is at least 3 months away. Even if the Director/Secretary was originally of the view that the Applicant could be removed in the reasonable future (as no application for leave to commence a judicial review was on foot), it would have been apparent when the JR Application was filed, that the Applicant cannot be removed for at least another 3 – 4 months. I am of the view that by that time, it would have been apparent that the Applicant cannot be removed within a reasonable period.

(6)  I have in the past commented on the undesirability of detaining an applicant and then requesting the court to accord priority to their judicial review applications just because the applicant has lodged a habeas corpus application. This imposes pressure on the court system and the relevant judges unnecessarily, especially when there is an upward trend in the number of such requests. I can see that in some cases this may be inevitable, for example when an Applicant has unexpectedly brought a judicial review after a long period of delay, or when it is clear that he/she is using the legal system and various procedures as a delaying tactic. However, in the present case when the Applicant cannot be accused of having delayed the normal course of his legal challenges, it would be inappropriate to detain him prematurely and then to ask the court to expedite the processing of his JR Application.

(7)  I note Ms Lam’s submission that there is no apparent merit in the JR Application. Whilst this may be relevant in certain circumstances (such as when a habeas corpus application having been brought after the hearing of a judicial review has taken place but before a decision has been handed down), the Department’s removal policy is irrespective of merit in the JR Application. Regardless of how hopeless an application for leave to judicial review a decision from the TCAB is, the policy remains that an applicant would only be removed until after the determination of a leave application to commence judicial review. In the circumstances of the present case, I do not think that the lack of merit in the JR Application is a weighty consideration, especially when the JR Application has not even been heard.

(8)  As the Applicant’s passport is still valid, there is no evidence of any unwillingness to co-operate or deliberate attempts on the part of the Applicant to stall his removal. (I do not see his JR Application or application for legal aid as attempts to hinder his removal as he is legally entitled to take out such applications and there was no inordinate delay in taking out such applications.)

(9)  There was no prolonging of the detention period due to the Applicant’s own refusal to co-operate.

(10)  I note an applicant’s unwillingness to be returned can sometimes be seen as an abscondence risk. However, this is usually when the JR Application has been determined and the Applicant is unsuccessful, meaning, they will need to be removed. The Applicant’s indication of unwillingness to be removed in the present case needs to be considered against the fact that his JR Application has not yet been heard, let alone determined. If his JR Application succeeds, his unwillingness to be removed would be justified. Under the Department’s own policy, an applicant will not be removed until the conclusion and dismissal of an application to commence judicial review by the Court of First Instance. I do not think the Applicant’s unwillingness to be removed can in the present circumstances be seen as an abscondence risk.

(11)  The Applicant has a wife in Hong Kong who has an address and who is willing to act as his surety.

(12)  The Applicant has one previous criminal record for false imprisonment. Although I accept that this is a serious offence which attracted a 26-month prison sentence, I have read the agreed facts of the case and there was no serious violence involved on the part of the Applicant. He has also served his sentence for the crime. The fact that he had committed a serious crime once in the present case cannot be sufficient basis to assert that the risk of re-offending is significant.

(13)  In view of the fact that the Applicant’s passport will be expiring by the end of the month, I have asked if the Applicant would be willing to commence application for a renewal of his passport now. He indicated that he would be willing to cooperate with renewing his passport or obtaining any emergency travel document. He has also agreed for the new passport to be released to the Department when it is issued.

(14)  Based on the present material, I am unable to agree with Ms Lam’s submissions that there is a high risk of re-offending or abscondence.

(15)  Overall, weighing the period of detention – around 140 days – against all the other factors, I am not satisfied that HS2 and HS3 are met. I am of the view that the overall circumstances have rendered continued detention unreasonable and unlawful.

HS4

32.  HS4 is satisfied as I am of the view that the Director had diligently pursued the Applicant’s deportation for the steps taken in paragraphs 16 – 17 above.

J.  Result

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

34.  The Applicant will be granted recognizance upon the compliance of the following conditions:

(1)  The Applicant do cooperate in applying for a renewal or extension of his passport by completing all applications and formalities and attending the Consulate of the Islamic Republic of Pakistan. The Applicant do authorize the Immigration Department to collect such renewal or extension or replacement passport. The Immigration Department do arrange for the completion of such formalities within 1 week hereof.

(2)  The Applicant do provide a self-surety of HK$4,000;

(3)  The Applicant do report to the Recognizance (Reporting) Office, Castle Peak Bay Immigration Centre twice every week on Tuesdays and Thursdays between 9 am and 12 noon; and

(4)  The Applicant do provide his current address and report to the Immigration Department within 3 days of any change of address.