ABBAS SYED MANZAR v. DIRECTOR OF IMMIGRATION

HCAL 904/2022

[2022] HKCFI 3063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 904 OF 2022

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BETWEEN

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D E C I S I O N

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A. Introduction

1.  The Applicant is currently held under immigration detention, pending his removal from Hong Kong pursuant to a Removal Order issued on 14 May 2018. The detention is made pursuant to authority given by section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). The period of detention commenced on 3 December 2021, and so to date has lasted 308 days (around 10 months).

2.  By application dated 9 September 2022 but filed on 13 September 2022, the Applicant now applies for writ of habeas corpus. But, the grounds set out in his supporting affirmation state that the application is against [sic] “all the refoulements claims decision with given by Immigration Director”, as canvassed in an attachment A (to which I can make reference later).

3.  I gave directions for the matter to come to today’s hearing. Those directions included for the Respondent (“Director”) to provide an initial response to the application, and for the Applicant to have leave to file a reply to that initial response. The initial response was filed, but the Applicant has not filed any reply.

4.  At the hearing, the Applicant has appeared in person (with the benefit of a Punjabi interpreter).

5.  The Director has been represented by Mr Alvin Hor, Government Counsel, who also signed the initial response/skeleton argument, on which he placed reliance at the hearing.

6.  This is my Decision.

B. Background Facts

B.1 Immigration Status

7.  The Applicant is a Pakistani national. He entered Hong Kong illegally on 15 May 2010 and was removed under a removal order on 26 July 2011.

8.  On 24 July 2014, the Applicant again entered Hong Kong illegally and was arrested by the Police on 27 July 2014. He was referred to the Immigration Department (“ImmD”) on 30 July 2014, and was then detained until 27 August 2014, when he was released on recognizance.

9.  Release on recognizance was revoked on 3 December 2021, since which date the Applicant has been detained.

10.  As said, he is subject to a (second) removal order issued on 14 May 2018 (“Removal Order”). The Removal Order was issued under section 19(1)(b) of the Ordinance. It has remained in force throughout.

11.  The power to detain pending removal under such a removal order is to be found in section 32(3A) of the Ordinance, which provides:

A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.

B.2 NRC and JR

12.  On his first illegal entry to Hong Kong, the Applicant made a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”) on 26 May 2010. His CAT Claim was refused on 9 December 2010, and his petition against the refusal was dismissed on 31 May 2011. He was, thereafter, removed from Hong Kong pursuant to the first removal order.

13.  After he re-entered Hong Kong illegally, the Applicant lodged a non-refoulement claim (“NRC”) on 24 July 2014. It took until late 2021 (over 7 years) for the Applicant to exhaust all the available administrative and judicial avenues for his NRC.

14.  The NRC was first rejected by the Director on 24 February 2017, and then by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) on 4 April 2018.

15.  On 13 June 2018, the Applicant then sought leave from the Court of First Instance (“CFI”) to challenge the Board’s decision by way of judicial review. After the CFI had refused leave on 15 February 2019, he applied to the Court of Appeal (“CA”) on 27 February 2019. That appeal was dismissed on 21 June 2019. He made further applications to the CA and the Court of the Final Appeal (“CFA”). The CFA dismissed his application for leave to appeal on 3 February 2021.

16.  On 31 March 2021, the Applicant requested to make a subsequent claim (“SC”), which was rejected by the Director on 3 August 2021. On 24 August 2021, the Applicant applied to the CFI for leave to judicially review the Director’s refusal.

17.  On 28 September 2021, the CFI refused the leave application and also made a Restricted Proceedings Order (“RPO”) which prohibits the Applicant from commencing fresh proceedings related to his NRC without first obtaining leave from the Court for him to do so.

18.  Though a draft Notice of Appeal stating the intention to further to pursue the application for leave to apply for judicial review was produced, it seems that it was never filed at Court. In any event, no leave has been sought or granted for it.

19.  Therefore, by the time the present detention commenced on 3 December 2021, there was no live NRC nor any related legal proceedings.

B.3 Periods of Detention and Reviews

20.  The Applicant’s recognizance was not revoked until 3 December 2021, following the CFI’s dismissal of his latest leave application and the imposition of the RPO. That was the start of the present detention.

21.  The present detention has been reviewed 5 times so far, on 13 January 2022, 2 March 2022, 20 May 2022, 15 August 2022, and 26 September 2022. Continued detention was recommended on each occasion. The same grounds were relied upon for the recommendation in all the reviews: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) he does not have close connection or fixed abode in Hong Kong; and (3) there are no other circumstances in favour of his release.

22.  For the latest review on 26 September 2022, internal minutes reflect that the Director has considered the following: (1) there is no outstanding NRC or related legal proceedings and an RPO has been imposed on the Applicant; (2) he has no family connection in Hong Kong; (3) an emergency passport has been obtained for the Applicant, making him ready for re-entry and (4) a removal flight has been tentatively arranged for 14 October 2022 (subject only to this application for habeas corpus). The original recommending officer, and the subsequent officers in ascending rank expressly balanced the period of detention against the other factors before agreeing that release on recognizance is not warranted.

B.4 Steps towards Removal

23.  ImmD started to take steps to facilitate the Applicant’s repatriation in October 2019, by sending a letter to the Consulate General of the Islamic Republic of Pakistan (“Pakistan CG”) regarding the Applicant’s re-entry. On 30 September 2021, after the end of the Applicant’s NRC and the making of the RPO, a further letter was sent to the Pakistan CG questing issuance of a replacement travel document for the Applicant’s repatriation.

24.  ImmD’s liaison with the Pakistan CG continued after the Applicant was detained. Particular emphasis was placed on the need for expedition in assistance for issuing a replacement travel document following the making of the RPO against the Applicant. The Applicant has consistently expressed unwillingness to return to Pakistan, and has refused to go through the re-entry application process, for example by refusing to attend an interview at the Pakistan CG office, to submit a re-entry application or to have a passport photo taken.

25.  In view of the Applicant’s stance, ImmD requested the Pakistan CG to consider alternative means to enable re-entry, and to seek to expedite the process. The request was eventually acceded to towards the end of September 2022. On 23 September 2022, an emergency passport was issued, with validity expiring on 22 October 2022.

26.  ImmD has already liaised with travel agencies to book a seat for the Applicant on a return flight to Pakistan on 14 October 2022.

C. Applicable Principles

27.  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.

28.  The summary is as follows:

(1) The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2) An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3) What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4) The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court. But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5) Either continuing detention is reasonable and so lawful, or it is not. Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6) Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7) The burden of showing that detention is lawful lies upon the Secretary and Director.

(8) The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) 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; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9) Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10) A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11) It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period. This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12) Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful. Reference to the facts of other cases is also likely unhelpful.

(13) Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it. Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14) The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15) This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16) However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17) The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18) The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19) Neither risk can justify detention of any length, as that would permit indefinite detention.

(20) The longer the detention, the greater the risk necessary to justify it.

(21) The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22) When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23) There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24) As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25) On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts. The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

D. Merits of Application

29.  The Removal Order issued against the Applicant is valid and extant. The detention under section 32(3A) of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending removal. Therefore, the question raised by this application is whether the detention has become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

30.  The application papers do not seek to identify why the detention of the Applicant has become unlawful. Rather, as is set out in the grounds of the application (see above), and in the attachment A to his affirmation, the Applicant has focused his submissions – which I do not need to rehearse here – on why he cannot go back or ought not to be sent back to Pakistan. That is not the relevant question which the Court is to address in this application.

31.  The Applicant did also point out that he is a psychiatric patient suffering from panic attacks when he travels by public transport, so that (he suggests) he could not travel on a plane if to be sent back to Pakistan. As further attachments, he produced three ‘To Whom it may concern’ notes from the Caritas Medical Centre: (1) one apparently dated July 2010 referring to his “generalised anxiety disorder”, and his feeling anxious when travelling on the MTR; (2) one apparently dated November 2021, certifying that the Applicant is a patient attending regular psychiatric follow up, and that he experiences anxiety and physical discomfort during travel, asking to switch his immigration visit location from Tuen Mun to Ma Tau Kok, which is closer to his abode; and (3) one apparently dated June 2022, saying that the Applicant is a patient currently receiving psychiatric follow up for panic disorder, that he had reported panic attacks when travelling by public transport, and at night during his stay at CIC, for which he has been started on antidepressant medication.

32.  At the hearing, the Applicant also focused on his mental condition and claimed that he is not fit to travel, and that he should be released to be able to walk outside in a park and to breathe fresh air. He repeated more than once that he was uncomfortable during the travel to Court because the vehicle window was closed. He also handed up further documents which appear to evidence that the treatment at the Caritas Medical Centre goes back at least as far as 2017, and that the Board noted he missed an interview because of depression in November 2016.

33.  But, first – and whilst not being unsympathetic to the Applicant’s discomfort and preference for open windows – I agree with Mr Hor that none of that material amounts to medical opinion evidence which would support a view that the Applicant is unfit to travel as a result of any recognised medical condition, or that there is any medical impediment to his removal. Secondly, this application of course does not require the Court to consider whether or how the Applicant should be returned to Pakistan. The relevant question is whether the Applicant can lawfully continue to be detained until his intended return to Pakistan.

34.  Mr Hor submits that the detention of the Applicant has been reasonable throughout the entire 308 days to date, and remains so for the foreseeable future. Having carefully considered the circumstances, I agree.

35.  First, the Director does intend to deport the Applicant and is only using the power to detain for that purpose. By the time of the commencement of the detention, the only impediment preventing removal was the need to obtain re-entry permission from Pakistan. The Director has been in active liaison with the Pakistan CG for this purpose. An emergency passport was issued on 23 September 2022. ImmD has secured a seat on a repatriation flight scheduled on 14 October 2022, so that removal is imminent. The Applicant will be removed from Hong Kong, and so the detention will cease, next week. HS1 is satisfied.

36.  Secondly, I am also satisfied that the Director has acted with reasonable diligence and expedition to effect removal, evident by ImmD’s persistent efforts in enabling the Applicant’s re-entry into Pakistan. HS4 is satisfied.

37.  Thirdly, there have been no live NRC or related judicial review proceedings at any point in the present period of detention. The only obstacle standing in the way of removal has been the need for a replacement travel document. Whilst the Applicant was uncooperative in going through the application procedures, the Director explored with the Pakistan CG alternative means to issue a replacement travel document to enable the Applicant’s re-entry. In the circumstances, the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time. HS3 is satisfied.

38.  Whilst the period of detention – 308 days – is certainly not insubstantial, it seems that a portion of it was largely of the Applicant’s own making by refusing to cooperate in obtaining a replacement document to remove the only practical impediment to his removal, and thus the end of detention. There is an obvious tension between (a) his claim to discomfort and health problems whilst held in detention and (b) his refusal to take steps which would have expedited the end of that detention (albeit through his repatriation). Further, as already noted, his removal, and thereby the end of detention, is imminent.

39.  Ultimately, and bearing in mind matters overall – as well as keeping firmly in mind the period of detention to date – I conclude that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances. HS2 is satisfied.

E. Result

40.  The Applicant continues to be lawfully detained. The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

41.  I make no order as to costs.