HCAL 958/2024
[2024] HKCFI 2190
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 958 OF 2024
________________________
BETWEEN
RAFIQ ATHAR
Applicant
and
HONG KONG SAR GOVERNMENT
Respondent
________________________
Before:
Deputy High Court Judge Phoebe Man in Court
Date of Hearing:
20 August 2024
Date of Judgment:
20 August 2024
________________________
JUDGMENT
________________________
A. Application
1. By an ex parte application dated 19 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 Applicant thereby seeks release from the custody of the Immigration Department (the “Department ”).
B. Background of Applicant
2. The Applicant is a Pakistani national born in 1978 who was arrested for remaining in Hong Kong illegally on 26 July 2009. On 27 July 2009, the Police referred the case to the Department for investigation. The Applicant claimed that he had entered Hong Kong illegally from Mainland China on 25 July 2009. On 1 August 2009, the Applicant was released on recognizance.
3. On 5 December 2016, a removal order (the “Removal Order ”) was made against the Applicant pursuant to section 19(1)(b) of the Immigration Ordnance (the “Ordinance ”), which remains valid and subsisting.
4. On 8 October 2022, the Applicant was discharged from prison and was referred to the Castle Peak Bay Immigration Centre. Since then, he was detained under section 32(3A) of the Ordinance pending his removal from Hong Kong, apart from 4 August 2023, when the Applicant was sentenced for 3 days upon conviction of “non-payment of fine” and he was released from the Department’s detention for imprisonment. The Applicant was actually imprisoned for only 1 day, and he was referred to the Department for detention again pursuant to section 32(3A) of the Ordinance on 5 August 2023.
5. The Applicant’s Pakistani passport expired on 7 May 2014.
6. At the time of the hearing, the Applicant has been detained for 682 days.
C. NRC related proceedings
7. On 1 August 2009, the Applicant lodged a torture claim, which was later taken to be a non-refoulement claim (“NRC ”) under the unified screening mechanism. Since the Applicant did not attend the briefings scheduled on 29 September 2014 and 8 December 2014, his NRC was taken as “no further action” on 7 June 2016 as he could not be reached.
8. On 12 November 2016, after he was arrested as a wanted person for failing to report recognizance on 24 October 2016 and was being detained by the Department, the Applicant requested to resume his NRC by way of a written signification. His NRC was subsequently rejected by the Director of Immigration (the “Director ”) on all applicable grounds on 26 January 2017 (the “Director’s Decision ”).
9. On 22 September 2017, after he was discharged from the prison and was being detained by the Department, the Applicant filed an application for late filing of the Notice of Appeal/Petition (“Late Filing Application ”) to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “TCAB ”) (i.e. 7 months and 1 week late) to appeal against the Director’s Decision. The Late Filing Application was refused by the TCAB on 24 May 2018 (the “TCAB Decision”) .
10. On 1 November 2018, the Applicant filed an out-of-time application for leave to commence judicial review (“JR Application ”) against the TCAB Decision to the Court of First Instance (“CFI ”).
11. On 23 June 2020, leave was granted by the CFI for the Applicant to apply for judicial review against the TCAB Decision. The Applicant was required to issue an originating summons within 14 days after leave was granted (i.e. by 7 July 2020). However, he failed to file the originating summons within the specified time.
12. By a letter dated 7 June 2022 (i.e. after almost two years after leave to commence judicial review was granted), the Applicant wrote to the CFI for an extension of time to file the originating summons.
13. On 14 June 2022, the CFI ordered that “Unless within 3 months of the service of this Order, the applicant issues the originating summons in accordance with Order 53, rule 5 of the RHC, the application for leave to apply for judicial review of the [TCAB Decision] is dismissed forthwith” (the “Unless Order ”). Notwithstanding the Unless Order, the Applicant still had not filed the Originating Summons on or before 14 September 2022, the JR application was therefore dismissed.
14. By a letter dated 1 December 2022, the Applicant wrote to the CFI to ask for a further time extension to file the originating summons. On 2 December 2022, the CFI refused to “extend time for compliance of the ‘Unless Order’” . The result was communicated to the Applicant in a letter dated 5 December 2022.
15. By a Summons on 21 March 2023, the Applicant applied for an extension of time to file the originating summons. On 20 June 2023, a Notice to Act was filed by Messrs. Choy Yung & Co., Solicitors in relation to HCAL 2430/2018.
16. No further direction from the CFI has been made for the Applicant to pursue the proceedings of HCAL 2430/2018.
17. According to the updated removal policy of the Department since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the CFI, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.
18. As the JR Application has been dismissed, there is no legal impediment to the Applicant’s removal.
D. Criminal Record & Sentencing and Abscondence Record
19. The Applicant’s criminal and sentencing records are as follows:
Date of Sentence
Offence
Sentence
22 January 2016
Assault Occasioning Actual Bodily Harm
8 weeks’ imprisonment suspended for 18 months
19 April 2017
Possession of Dangerous Drugs
Fined $300
27 June 2017
A. Assaulting a Police Officer
9 weeks’ imprisonment
B. Breach of Suspended Sentence
8 weeks’ imprisonment
27 March 2018
Possession of Dangerous Drugs
20 days’ imprisonment
27 September 2021
Criminal Intimidation
3 months’ imprisonment
30 August 2022
Non-payment of fine
1 month’s imprisonment in lieu of payment of fine
4 August 2023
Non-payment of fine
3 days’ imprisonment in lieu of payment of fine
20. The Applicant had absconded on 5 different occasions before:
Period of Abscondence
Reason for Resurface
Explanation
1.
28 November 2014 –
Re-arrested by the Police (in Yuen Long) for being a wanted person
Financial difficulty with transportation
2.
21 April 2017 –
Re-arrested by the Police (in Yuen Long) for being a wanted person
Forgot to report recognizance
3.
16 January 2019 –
Re-arrested by the Police (in Tuen Mun) for being a wanted person
Had a leg injury
4.
13 April 2021 –
Re-arrested by the Police (in Tin Shui Wai) for being a wanted person
Sickness and bed rest at home
5.
10 August 2021 –
Arrested by the Police for criminal intimidation on 31 July 2021 and imprisoned from 27 September 2021 to 27 October 2021
Arrested by the Police, remanded and in jail
21. It can be seen that the Applicant only resurfaced due to arrest by the Police.
E. Steps towards Removal
22. The Applicant’s passport had expired on 7 May 2014. The Department had, since prior to the current detention, been liaising with the Consulate General of Islamic Republic of Pakistan (the “Consulate ”) and requested for assistance. On 5 September 2017, a letter enclosing the copy of the Applicant’s expired passport was sent to the Consulate by the Department requesting the issuance of a replacement travel document to the Applicant so as to facilitate his repatriation.
23. Repeated interviews had been conducted with the Applicant on 3 November 2022, 5 December 2022, 2 March 2023, 1 June 2023, 7 August 2023, 24 October 2023, 25 January 2024, 25 March 2024, 8 May 2024, 26 June 2024, 8 July 2024 and 26 July 2024. On each occasion, the Applicant expressed unwillingness to return to his home country.
24. The Department had sent chasers to the Consulate on 10 November 2021, 31 March 2022, 2 June 2022 and 18 October 2022 respectively, requesting the issuance of a travel document to the Applicant.
25. On 25 November 2022, after successfully securing the Applicant’s completed re-entry application form and passport photo, the Department sent these documents to the Consulate.
26. The Department had made further calls and/or sent chasers to the Consulate on 6 December 2022, 16 February 2023 and 27 March 2023. The Department was informed that the Applicant’s re-entry application was under active processing.
27. On 30 March 2023, the Department had successfully escorted the Applicant to attend an interview at the Consulate.
28. On 8 June 2023, after the Department’s further efforts to liaise with the Consulate by email, letter and/or meeting on 26 April 2023, 17 May 2023 and 31 May 2023, the Applicant’s emergency travel document was issued with a validity of 30 days.
29. A total of 3 repatriation attempts were arranged for the Applicant on 10 January 2024, 26 January 2024 and 8 May 2024 respectively. Save the first repatriation attempt was cancelled due to the adverse weather condition at the destination, the remaining 2 repatriation attempts were called off due to the Applicant’s strong resistance and uncooperative manner for removal.
30. During the recent interviews on 8 July 2024 and 26 July 2024, the Applicant showed understanding that his uncooperativeness would impede his removal and thus inevitably lengthen the detention.
31. The validity of the Applicant’s travel document had been extended a few times. With the Department’s liaison with the Consulate, the validity of the Applicant’s emergency travel document is currently extended to 14 September 2024 and the repatriation flight is scheduled on 23 August 2024 (i.e. 3 days after the hearing of this Application).
F. Applicable Principles
32. 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.
33. 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
34. The Applicant has set out his grounds for application in his affirmation filed on 19 June 2024. In summary, they are as follows:
(1) He had been granted leave to commence judicial review against the Director’s Decision. He missed the deadline for filing the originating summons as he was uneducated.
(2) He had an accident during his detention and if he had been given proper care, he would not be in a wheelchair now.
(3) He had not failed to report recognizance.
35. At the oral hearing, the Applicant was represented by Mr Rob Connelly, who made the following oral submissions:
(1) The Applicant was granted leave to apply for judicial review on 23 June 2020. As he was not legally represented, and was not literate in English, he did not understand the purpose of judicial review, asking him to take out an application for judicial review was meaningless. The Applicant only obtained legal advice in June 2022 when he wrote to ask for an extension of time to issue the judicial review.
(2) He had no incentive to delay the issue of the judicial review if he knew how to.
(3) The Applicant was released on 19 July 2022 and was sentenced to imprisonment on 30 August 2022.
(4) As leave was granted, the inevitable result would be the matter being returned to the TCAB for reconsideration of the merits of the claim.
(5) Johnson Benjamin v Director of Immigration & Secretary for Security [1] is thus inapplicable as the delay was only due to a lack of access to justice.
36. I shall bear these points in mind as appropriate in my analysis below.
H. Lawful Authority for Detention?
37. The Removal Order was issued on 5 December 2016 and remains valid. The Applicant has been detained under section 32(3A) of the Ordinance (from 8 October 2022 to date, except for 4 August 2023 when he was imprisoned), which in total will be a period of 682 days (around 1 year and 10.5 months) up to the time of the hearing.
38. Thus, there was and remains clear prima facie lawful authority for the detention.
39. Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.
I. Whether Detention has become unlawful
40. 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 ”).
41. The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus .
HS1
42. 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
43. The starting point is the length of the detention – about 682 days – against which all the other factors must be weighed and balanced.
44. For the following reasons, I am satisfied that HS2 and HS3 are satisfied:
(1) There is no conviction in the Applicant’s pursuit of his NRC. He first lodged his NRC in 2009. However, he had done nothing since then and his NRC was treated as not proceeded with. He only indicated his desire to resume his NRC upon his arrest after his abscondence in 2016. If he had been serious about his NRC, he would not have missed all the briefings on 29 September 2014 and 8 December 2014.
(2) After leave was eventually granted by the CFI for the Applicant to apply for judicial review against the TCAB Decision on 23 June 2020, he did not comply with the court order to file an originating summons. The Applicant also did not adhere to the deadline after a 3-month time extension had been given to him to file the originating summons on an unless basis.
(3) A litigant in person cannot hide behind the excuse that he has no legal advice and did not understand the applicable legal procedures such that there is no consequence to the repeated failure in adhering to court orders.
(4) The Applicant clearly knew enough to have applied for an extension of time to issue an originating summons for judicial review. The Unless Order was issued in June 2022, granting the Applicant a period of 3 months to issue the originating summons. Even if the Applicant truly missed the first 14-day time limit to file the originating summons, having found out subsequently that the deadline had passed, this should have put the Applicant on alert and he should have adhered to the Unless Order.
(5) There is no evidence that the Applicant was not informed of the Unless Order whilst he was detained in CIC, or that he could not have issued an originating summons whilst in detention.
(6) A request by the Applicant to “extend time for compliance with the Unless Order” was refused by the CFI on 5 December 2022. It is said that the Applicant subsequently issued a summons on 21 March 2023 in HCAL 2430/2018 (the “Summons ”) for leave to file and serve an originating summons out of time. Mr Connelly submitted that the Applicant was still waiting for a hearing date for the Summons. However, the Applicant had breached the Unless Order and the JR Application had been dismissed. It is not known on what basis would the Summons be processed without the Applicant having first sought and obtained relief from sanction. Those representing the Applicant seemed to have been wholly unaware of the proper procedure to take in the circumstances.
(7) In any event, it is inconceivable that with the Applicant being legally represented since June 2023, no step was taken to enquire with the court on the status of the Summons, even if they had erroneously believed that such a Summons would be processed by the court.
(8) There is thus no basis for Mr Connelly to submit that it would be a matter of course for the TCAB to reconsider the Applicant’s NRC.
(9) The Applicant’s repeated non-action goes beyond mere ignorance of the law. If he was truly serious about pursuing his NRC, he would have made an effort in complying with the various court orders.
(10) It needs to be borne in mind that there is all along no legal impediment to the Applicant’s removal.
(11) There is no dispute that from the beginning of his detention in October 2022 onwards, the Applicant has indicated unwillingness to return to Pakistan.
(12) The emergency travel document was obtained on 8 June 2023. However, the Applicant had repeatedly indicated his unwillingness to return to Pakistan. The Applicant had actively and strongly resisted the repatriation attempts on 26 January 2024 and 8 May 2024.
(13) It is thus clear that the Applicant’s continual detention is caused by no one but himself.
(14) In Johnson Benjamin , the Court of Appeal held that:
“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles .”
(15) The period of detention that the Applicant has prolonged by his refusal to co-operate will thus not be counted as unreasonable when determining whether an originally lawful detention has become unlawful. I am of the view that such period in the present case would be the majority of the period of detention as the Applicant has since the commencement of the detention been acting unreasonably.
(16) If the Applicant was willing to be removed, it was possible for him to have been released and removed in June 2023, shortly after his emergency travel document has been issued.
(17) The Applicant’s history and mode of abscondence, together with the Applicant’s clear attitude that he is unwilling to be repatriated indicate a real risk of abscondence. The risk is further increased as the there is no further legal impediment nor obstacle to his removal, now that the emergency travel document is ready.
(18) The Applicant has no local connection, which further increases the risk of abscondence.
(19) Mr Connelly has confirmed at the hearing that the Applicant has no intention to co-operate with the upcoming repatriation effort on 23 August 2024.
(20) The risks of abscondence is of critical and paramount importance in the assessment of the lawfulness of detention. As recognised by the Court of Appeal, if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred[2] .
(21) The risk of re-offence is also substantial as shown from his criminal and sentencing records.
(22) With regard to the Applicant’s health issue, there is no indication that the Applicant cannot receive proper medical treatment while being detained.
(23) With the validity of the emergency travel document extended, a flight for removal has been arranged for 23 August 2024.
(24) Each case must be decided on its own facts. Overall, weighing the period of detention – around 682 days – against all the other factors, I am satisfied that HS2 and HS3 are met.
HS4
45. I am satisfied that HS4 is satisfied for the following reasons:
(1) The Director had all along, even before the commencement of the Applicant’s detention on 8 October 2022, sought the assistance of the Consulate to issue the Applicant with a travel document upon discovering that his passport had expired.
(2) I am of the view that the Director had diligently pursued the Applicant’s deportation as set out in paragraphs 22 – 31 above.
46. 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
47. For these reasons, I dismiss the Applicant’s application for writ of habeas corpus with no order as to costs.
K. Postscript
48. Mr Connelly conceded at the end of his submissions that as at the time of the hearing, there is insufficient basis for the Applicant to take out the habeas corpus application. It was indicated that an application for relief from sanction would be taken out and after that, the Applicant might reconsider applying for habeas corpus again. Against the history of the present case, it is far from certain that such an application for relief from sanction would be successful, especially when the CFI has already refused to “extend time” for compliance with the Unless Order. In any event, the court may consider imposing costs sanctions in future if an application is wholly without basis.
(Phoebe Man)
Mr Rob Connelly, instructed by Choy Yung & Co., for the applicant
Miss Angie Liu, Government Counsel, of the Department of Justice, for the respondent