ZIA, UR REHMAN MUGHAL alias MUGHAL ZIA, UR REHMAN v. DIRECTOR OF IMMIGRATION AND OTHERS

HCAL 1573/2023

[2023] HKCFI 2408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1573 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is the subject of a Removal Order a Deportation Order made on 16 May 2012 and 12 June 2023 respectively, made under the Immigration Ordinance, Cap 115 (“Ordinance”).  He has been held in immigration detention since 24 February 2023.  To the date of hearing, the period of detention has lasted 210 days or about 7 months.

2.  On 5 September 2023, he applied for writ of habeas corpus seeking his immediate release from detention.  I later gave leave for the Respondents to file a written response, and the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, the Respondents were represented by Mr Jason Wong, Government Counsel from the Department of Justice.  The Applicant appeared in person with the benefit of an English/Punjabi interpreter.

4.  This is my Decision.

B.  Background Leading to the Present Detention

5.  The Applicant is a Pakistani national born in 1980.  He was first spotted in Hong Kong by the police as a suspected illegal immigrant in March 2009.  He claimed to have entered Hong Kong illegally in the previous month.  Counting from February 2009, he has been staying in Hong Kong unlawfully for more than 14 years.

6.  He is one of those illegal immigrants who have been tolerated by the Director to stay in Hong Kong for years or even decades despite their having no right to do so because they have raised a what is now known as “non-refoulement claim” (“NRC”).  Broadly speaking, under the relevant statutory regime and the then applicable removal policy, the effect of such a claim is or was to prevent the Government from removing a person from Hong Kong as long as his NRC or related legal proceedings were still ongoing.

7.  Over the years, the Applicant was able to maintain extant NRC or related legal proceedings in various administrative and judicial avenues intermittently, although the manner in which he pursued his claim was fraught with delay and lack of diligence on his part.

8.  It is of note that his NRC reached the stage of its subsequent judicial review leave application being rejected by the Court of First Instance (“CFI”) on 4 November 2020.  He did pursue further proceedings in the CFI, in the Court of Appeal (“CA”) and apparently also in the Court of Final Appeal (“CFA”).  But those further proceedings have ceased to be an obstacle impeding his removal since 7 December 2022, on which date the Government changed her removal policy such that an NRC will no longer be seen as a removal obstacle once it has reached the stage of its subsequent proceedings being rejected by the CFI.

9.  As it now stands, there is no ‘legal impediment’ standing in the way of the Applicant’s removal from Hong Kong, except this habeas corpus application.

C.  Criminal Record & Absconding Record

10.  Before the commencement of the present detention on 24 February 2023, the Applicant was ordinarily granted immigration recognizance which would allow him to live freely in the community, subject to the duty to regularly report recognizance to the Director.  But his otherwise free life was often interrupted by imprisonment following criminal conviction or immigration detention arising from his failure to report recognizance.

11.  During his stay in Hong Kong, the Applicant has committed numerous criminal offences for most of which he was sentenced to imprisonment:

(1)  On 1 June 2011, he was sentenced to 21 months’ imprisonment for taking employment/establishing/joining in any business while being a person who remains in Hong Kong without the authority of the Director of Immigration after landed in Hong Kong unlawfully.

(2)  On 4 April 2015, he was fined HK$2,000 for theft (or 7 days’ imprisonment for non-payment of fine).

(3)  On 23 May 2016, he was sentenced to 9 months for handling stolen goods.

(4)  On 14 September 2016, he was sentenced to 4 months for criminal damage.

(5)  On 14 August 2017, he was sentenced to 4 months for possession of dangerous drug.

(6)  On 4 January 2019, he was sentenced to 4 months for possession of a dangerous drug.

(7)  On 30 October 2019, he was sentenced to 18 months for attempted burglary.

(8)  On 24 November 2020, he was sentenced to 6 months’ imprisonment (suspended for 18 months) for possession of dangerous drug.

(9)  On 13 September 2021, he was sentenced to a total of 8 months for theft and activation of the suspended sentence.

(10)  On 23 February 2023, he was sentenced to 5 months for criminal damage.

12.  He also has a considerable absconding history for failing to report immigration recognizance or jumping police bail:

(1)  He failed to report recognizance on 4 September 2009.  Recognizance was only assumed on 20 May 2010 when the immigration officers eventually managed to contact him to complete the necessary formalities for resumption of recognizance.

(2)  He failed to report recognizance on 16 October 2012 and only resurfaced more than 3 months later on 29 January 2013 when he was arrested by the police as a wanted person.

(3)  He failed to report recognizance on 16 April 2013 and only resurfaced more than 6 months later on 29 October 2013 after his arrest by the police.

(4)  He failed to report recognizance on 24 February 2014 until he was arrested by the police on 6 April 2014.

(5)  He jumped police bail on 23 September 2015.

(6)  He failed to report recognizance on 24 March 2017 and only resurfaced more than 2 months later on 3 June 2017 upon his being arrested by the police.

D.  Steps towards Removal

13.  When the Applicant was taken into immigration detention on 24 February 2023, the only obstacle standing in the way of removal was the need to procure a travel document to enable him to return to Pakistan.

14.  The Director already started liaising with the Consulate General of the Islamic Republic of Pakistan for this purpose since as early as 2012.  By February 2022, the Pakistani Consulate has already verified the identity of the Applicant, confirmed that an Emergency Travel document (“ETD”) could be issued to the Applicant “as and when approached”, and included the Applicant on the “list of verified Pakistani ready for deportation”.

15.  The Director continued to chase after the Pakistani Consulate for the ETD after the Applicant was taken into detention. Eventually, an ETD was issued to the applicant on 11 May 2023, with a validity period expiring in 30 days.  By then, in less than 4 months after the detention had started, all removal obstacles had been cleared.

16.  But no repatriation operation was arranged within the validity period.  The only event of note during the period was that the Secretary for Security considered issuing a deportation order which order was eventually issued to him on 12 June 2023.

17.  On 7 July 2023, the Director managed to extend the validity of the ETD to 27 September 2023.

18.  On 31 July 2023, the Director purchased for the Applicant a ticket for a flight destined to Pakistan fixed for 9 August 2023.

19.  However, that repatriation operation was called off at the end.  On the departure date, upon arrival at the airport, the Applicant became uncooperative to the extent that the airline refused to issue a boarding pass to the Applicant.

20.  On 11 September 2023, the Director has arranged another repatriation flight scheduled for 25 September 2023, i.e. 4 days from now.

E.  The Applicant’s Submissions

21.  Exhibited to the Applicant’s supporting affirmation are 36 pages of handwritten notes. Besides the recitation of legal principles (but, most of the time, without explaining their direct applicability to his case), I could summarise the Applicant’s points as follows:

(1)  He recognizes that he has been convicted of multiple criminal offences in Hong Kong.  But he served each and every sentence passed on him.  It is unjust to detain him now when he has committed no crime.

(2)  Every time after he was released from prison and then transferred to the Immigration Department, the Director resumed his immigration recognizance.

(3)  The offences committed by him were not serious. The longest sentence passed on him was 21 months.  The other sentences were no more than 18 months. There were other immigration detainees who committed more offences attracting longer sentences than him but were released by the Director on recognizance.

(4)  He also admits that he had failed to report immigration recognizance on a few occasions in the past.  But every time the Director was able to release him on recognizance again.  Most of the time, he paid his own surety money from HK$500 to HK$1,000.  He wonders what has changed this time.

(5)  He has been detained since February/March 2023.  His detention has lasted for more than 5 months.  The period of detention is unreasonably long, in view of the fact that 4 months was declared as too long for immigration detention pending removal in HCMP 2592/1998.

(6)  He still has ongoing legal proceedings and he has no intention to return to Pakistan yet.  He has already filed a “Notice of Motion” (presumably to the CFA) and he still has other applications to make if this application also fails.  He believes that it is impossible for the Director to remove him within a reasonable time.

(7)  He admits that he has no family member living in Hong Kong, but he has many friends who are permanent Hong Kong residents and who are willing to stand as his guarantor.  He provided the name, HKID and contact details of his intended guarantor.  Further, he always updates the Director with his residential address and phone number.

(8)  The ‘decision’ (without identifying what it is) is not reasonable or fair in view of his right to life protected by article 28 of the Basic Law and article 2 of the Bill of Rights.  He will have to face the risk of extrajudicial killing if he is sent back to his country.  The Director has failed to take that into account.  The learned Judge was also wrong as he failed to apply the principle of the irrationality to the decision made by the Director of Immigration and Adjudicator.  He also has to face hardship if he is to return to Pakistan.

22.  At the hearing, the Applicant chose first to rely on his earlier written material, and then to hear from Mr Wong on behalf of the Respondents, before he would make his reply.  The Applicant emphasised that he had not produced more writing, but was speaking the truth and what he feels.  With the assistance of my reminding him of the points made by Mr Wong, the Applicant then made further submissions, which can be summarised as follows:

(1)  As regards whether he had been detained solely for the purpose of deportation, the Applicant reminded the Court that he had in fact been in overall detention since February 2022 (including 12 months on remand, prior to receiving a sentence of only three months – which is presumably why he was immediately released into the current period of immigration detention).

(2)  Therefore, the period of detention should not be calculated from February 2023, but one year earlier.

(3)  The Respondents have reacted to his habeas corpus application by booking him a ticket on a repatriation flight.  But his case is not finished, as he has a final appeal pending, and his life is still in danger in Pakistan.

(4)  The Immigration Department has not given him any guarantee that, if he is repatriated, he will not be in danger in his own country.  But he is safe in Hong Kong.

(5)  He only learned about the flight booked for 25 September 2023 when he received the bundle relating to this hearing, on 18 September 2023.

(6)  In the repatriation attempt in August 2023, this was also a surprise to him, which is why he reacted as he did.

(7)  There is no risk of absconding because in the 14 years he has been in Hong Kong, he has never tried to abscond.  It is correct that he has committed various offences, and served 10 sentences, but he has not absconded.

(8)  He has lost touch with many family members in Pakistan.  His parents have passed away.  As to his siblings, he does not know where they live, and so does not know where he would go were he to be repatriated.  He does not wish to have to commit crime to be able to live.

(9)  He wishes to have a little more time to settle things a little bit so that he can make better arrangements.

(10)  He has no hard feelings towards, but rather respect for, the Immigration Department, and he acknowledges that they have let him stay in Hong Kong for a significant period and given him enough chances.

23.  A few of these points are obviously related to his NRC and subsequent judicial proceedings.  As I have emphasized in numerous previous decisions, I am not asked in these habeas corpus proceedings to adjudicate on the merits or his NRC or whether he should be returned.  His NRC remains unsubstantiated after he has been given more than a decade to establish it. Insofar as the present application is concerned, the Applicant is the subject of both a Removal Order and a Detention Order, which means that he will be removed/deported from Hong Kong.  The question which arises in the current application before the Court is whether he can be lawfully detained until his removal/deportation.

24.  It also appears that the effect of the change in removal policy on his removal has not yet been appreciated by him, thus his attempt to rely on extant or future legal proceedings related to his NRC as an obstacle to his removal.  Those proceedings are not, and would not be, an impediment to removal.

25.  Other than that, as appropriate, I shall take these matters into account to my consideration below (even if I do not expressly mention each of the points).

F.  Whether Detention has become unlawful

26.  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.

27.  I expressly mention that the burden is on the respondent to an application for habeas corpus to show continued detention is lawful.

28.  In this case, to start with, there was and remains clear prima facie lawful authority for the detention:

(1)  From 24 February 2023 to 23 May 2023, the Applicant was detained under section 32(3A) of the Ordinance, which authorises the detention of a person against whom a removal order has been issued pending his removal from Hong Kong.  The Removal Order remains extant.

(2)  From 24 May 2023 to 12 June 2023, the Applicant was detained under section 29 for the purpose of making deportation enquiry.  The Deportation Order was issued at the end of this period.

(3)  Since the issuance of the Deportation Order on 12 June 2023, the Applicant has been detained under section 32(3) which authorises the detention of a person against whom a deportation order is in force pending his deportation.

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

30.  I can address the Hardial Singh principles broadly below.

31.  The starting point is the length of the detention – about 7 months – against which all the other factors must be weighed and balanced.  But I accept the thrust of the point made by the Applicant that the period of immigration detention must be viewed against the context of the previous period of detention.  In practical terms, the Applicant has been detained since February 2022, albeit that the current period of immigration detention commenced only one year later.

32.  I have no doubt that HS1 is satisfied.  The Director clearly intends to deport the Applicant, and repatriation arrangements have been made for that purpose.

33.  As said, by the start of the detention, the Applicant’s NRC related proceedings had already ceased to be a removal obstacle and the Pakistani Consulate had already confirmed that an ETD would be issued to the Applicant to facilitate his deportation.  Hence, it was reasonable to expect that removal would be possible within a reasonable time both at the start of and throughout the entire detention period.  As a matter of fact, the ETD was issued in less than 4 months.

34.  I was slightly concerned that that the first repatriation operation was only arranged around 31 July 2023 and scheduled for 9 August 2023, when the ETD was already available on 11 May 2023. There was a lapse of almost 3 months in between. I note the Deportation Order was issued to him during the period but that was hardly an effort to facilitate his removal.

35.  But I know that the Director did continue to ascertain the willingness of the Applicant to return during the period.  After the ETD initially expired in June 2023, the Director also took steps to extend its validity in July 2023 and put together the first repatriation operation on 9 August 2023, and a second one now fixed for 25 September 2023.

36.  On balance, I am satisfied that the Director has acted with the diligence and promptitude as would be needed to meet HS4.

37.  The Applicant would have been removed and thus released from detention on 9 August 2023, had he not chosen to obstruct his own removal by refusing to cooperate in the airport.  By then, the detention had lasted for less than 6 months.  I have reiterated time and again that the Court, in assessing the reasonableness of the length of detention and the proximity of removal, would take into account that the detainee has, by his own action, delayed the removal and thus lengthened the detention.

38.  I note the Applicant’s submission to the effect that the removal operation was in effect ‘sprung’ on him, but he must have known that he was being detained by the immigration authorities for the purpose of effecting his removal and/or deportation.  It cannot have been a surprise that the deportation arrangements were made, even if little notice was given of the precise date.  In any event, the Applicant has notice of the deportation arrangements made for 25 September 2023.

39.  I also agree with Mr Wong that there is real risk of re-offending in view of the Applicant’s criminal record.  It is unhelpful for the Applicant to compare his criminal record with other detainees, since every case must be decided on its own merits.  In any event, I do not agree with the Applicant that the crimes he committed were not serious.  Further, the Applicant is also not entitled to expect, based on the Director’s previous resumption of his recognizance in the past after he had served his criminal sentence, that the Director would continue to do so in future.  Indeed, as the Applicant fairly accepted in submissions today, the Immigration Department has given him enough chances.  Releasing him risks his committing further offence(s) leading to a period of imprisonment which would inevitably delay the imminent removal.

40.  The risk of absconding is also substantial, as reflected in his absconding history.  Unless the Applicant simply means that he has not tried to abscond by leaving Hong Kong, I reject his suggestion that he has not previously absconded.  I also take into account the fact that he has already managed to thwart the first repatriation operation.  Such demonstrated unwillingness to return gives rise to a real risk that he may abscond (by failing to appear at the airport) 4 days from now, for his repatriation.  I do not believe such risk could be adequately addressed by the provision of a guarantor, who is only a friend of his.  Absconding would frustrate the very purposes for which the power of detention is granted in the first place.

41.  Overall, weighing the period of detention – around 7 months, following the previous 12 months – against all the other factors including that repatriation is imminent and the Applicant will be and should be released from detention 4 days from now (albeit in Pakistan), I am satisfied that HS2 and HS3 are met.

42.  In consequence, the period of detention to date has remained lawful at all times, and will remain lawful for the foreseeable future.

G.  Result

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