EJAZ ADNAN v. DIRECTOR OF IMMIGRATION

HCAL 1624/2023

[2023] HKCFI 2751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1624 OF 2023

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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 12 September 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 Immigration Department.

B.  Background of Applicant

2.  The Applicant is a Pakistani national born in 1981 who entered Hong Kong illegally on 4 May 2007 and was arrested for remaining in Hong Kong illegally on 22 December 2007.  Since then, the Applicant had been released on recognizance until such recognizance was ceased on 24 February 2023.  After that the Applicant had been detained under section 32(3A) of the Immigration Ordinance (Cap. 115) pending his removal from Hong Kong.

3.  On 28 November 2019, a removal order was issued against the Applicant (the “Removal Order”).  The Applicant’s passport had expired in December 2011.

4.  At the time of the hearing, the Applicant has been detained for 237 days.

C.  NRC related proceedings

5.  The Applicant raised a non-refoulement claim (“NRC”) on 6 January 2008 based on alleged fear of being killed by an influential family in failing to provide information on the killing of one of the family members.

6.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 24 October 2014 by a notice of decision (the “Director’s 1^st Decision”).  The Applicant’s appeal to the Torture Claims Appeal Board (the “TCAB”) against the Director’s 1^st Decision was dismissed on 29 June 2015. 

7.  By letter dated 30 December 2016, the Director invited the Applicant to provide additional information for consideration of his claim on BOR 2 risk.  The Director rejected the Applicant’s case by a notice of decision dated 17 January 2017 (the “Director’s 2^nd Decision”). On 9 March 2017, the Applicant filed his notice of appeal to the TCAB (the “2^nd Notice of Appeal”) against the Director’s 2^nd Decision.  He was late for 1 month and 7 days and the TCAB refused to grant extension of time for him to file the 2^nd Notice of Appeal by a decision dated 20 June 2018 (the “2^nd TCAB Decision”).

8.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the 2^nd TCAB Decision was dismissed by the Form CALL-1 in HCAL 1286/2018 dated 16 March 2021 (the “JR Decision”).  The Applicant’s application for extension of time to appeal against the JR Decision was dismissed on 12 May 2021.

9.  The Applicant’s renewed application to the Court of Appeal for extension of time to appeal against the JR Decision was dismissed on 26 October 2021.

10.  The Applicant filed a Notice of Motion to the Court of Appeal for leave to appeal to the Court of Final Appeal under CAMP 214/2021. The application was dismissed on 10 January 2022.

11.  The Applicant further applied to the Court of Final Appeal under FAMV 86/2022 for leave to appeal, which was dismissed on 3 October 2022.

12.  The Applicant lodged a subsequent claim on 26 October 2022, which was rejected by the Director of Immigration on 10 January 2023.

13.  In any event, 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. 

14.  There is thus no legal impediment to the Applicant’s removal due to any outstanding NRC related proceedings.

D.  Criminal Record & Sentencing Record

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

Date of Conviction	Offence	Sentence
27 June 2018	Possession of Dangerous Drug	$1,500 fine

E.  Steps towards Removal

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

17.  Shortly after the Applicant’s detention on 24 February 2023, the Immigration Department had written to the Consulate General of the Islamic Republic of Pakistan (the “Pakistan CG”) on 5 occasions between 13 March 2023 to 11 September 2023 requesting for assistance for confirmation of re-entry for the Applicant and a replacement travel document to be issued to the Applicant as his passport had expired in December 2011. 

18.  A meeting was conducted with the Pakistan CG on 18 September 2023, who indicated that the application was actively under process.  The Pakistan CG confirmed on 29 September 2023 that they would accord priority to the Applicant’s re-entry application.

19.  On 3 October 2023, the Pakistan CG indicated that the emergency travel document would be issued in about 2 weeks’ time.

20.  At the hearing, Mr Hor, Senior Government Counsel for the respondent informed the court that the emergency travel document was ready and the Pakistan CG would visit the Applicant the day after the hearing.

F.  Applicable Principles

21.  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.

22.  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

23.  The Applicant has set out his grounds for application in his affirmation dated 12 September 2023.  In summary, they are as follows:

(1)  The Applicant had been suffering from appendicitis and had not received proper medical care whilst in detention.

(2)  The Applicant submitted that he had not jumped bail and he had not committed any crime.

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

(1)  The Applicant claimed that he was not told the reason why his recognizance was ceased and why he was detained.

(2)  He wished to be released to attend to his medical appointments.

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

H.  Lawful Authority for Detention?

26.  The Removal Order was issued on 28 November 2019 and remains valid.  The Applicant has been detained from 24 February 2023 to 18 October 2023 (237 days) under section 32(3A) which permits the detention of a person against whom a removal 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 8 months (237 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 May 2023 onwards, the Applicant has indicated unwillingness to return to Pakistan.  The Applicant refused to co-operate in obtaining a valid travel document to enter Pakistan, including completion of an application form and taking photographs. 

(2)  T here is nothing to indicate that but for the Applicant’s refusal to co-operate in obtaining a valid travel document, his release from detention could not have been carried out earlier. 

(3)  I agree with Mr Hor 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)  Based on the indication from the Pakistan CG, I am satisfied that there is sufficient prospect of removal within a reasonable timescale.

(5)  Contrary to the Applicant’s submission, he had in fact been convicted of the offence of possession of dangerous drugs in 2018. There is however, no suggestion that there is a high risk of the Applicant 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. The risk is further increased as the there is no further obstacle to his removal, now that the emergency travel document is ready.

(7)  The Applicant has shown no local connection.

(8)  After hearing submissions, I am satisfied that there is access to medical care when it is required.  The Applicant was in fact admitted to Castle Peak Hospital when his conditions so required.  There is nothing to suggest that the medical care that the Applicant received at the Castle Peak Hospital was lacking.

(9)  Contrary to the Applicant’s allegations, a notice upon the ceasing of the recognizance showed that the Applicant was in fact informed that his NRC had been dismissed at the Court of First Instance level and there was no further legal impediment to his removal.  Contrary to the Applicant’s allegation that no one had interpreted the contents of that notice to him, there was in fact a signature on the translation.  That signature looks identical to the Applicant’s signature on his affirmation.  I do not accept the Applicant’s bare allegation that the signature on the notice was forged.

(10)  Overall, weighing the period of detention – around 8 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 24 February 2023, sought the assistance of the Pakistan CG to issue the Applicant with a travel document upon discovering that his passport had expired.

(2) I am thus of the view that the Director had diligently pursued the Applicant’s deportation as set out in paragraphs 17 – 20 above.

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.

J.   Result

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