AKHTAR MUHAMMAD SAEED v. HONG KONG SAR GOVERNMENT

HCAL 1919/2024

[2024] HKCFI 3715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1919 OF 2024

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DECISION

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1.  Introduction

1.1   The Applicant is subject to a Removal Order and a Deportation Order respectively made on 27 July 2010 and 22 November 2024. He has been held in immigration detention since 16 August 2024 pursuant various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 137 days.

1.2   This is my decision on the Applicant’s application for a writ of habeas corpus filed on 25 October 2024. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Mr Eric Ko, Senior Government Counsel, appeared for the Director of Immigration (“Director”)  and the Secretary for Security (“Secretary”).

2.  Background

2.1   The Applicant is a Pakistani national. His wife and 3 children are in Hong Kong. The Applicant’s wife and the 2 elder children are unsubstantiated non-refoulement claimants[1]. I am told by Mr Ko that there is an extant application for leave to apply for judicial review against the dismissal of the youngest child’s non-refoulement claim.

2.2   The Applicant entered Hong Kong on 10 November 2007 illegally and was arrested on the same day. He was subsequently released on immigration recognizance on 7 December 2007.

2.3   The Applicant had been arrested, convicted and sentenced to imprisonment on multiple occasions. He was convicted of (i)  remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong in 2008 (15 months’ imprisonment)  ; (ii)  taking employment while being a person who remains in Hong Kong without authority of the Director after having landed in Hong Kong unlawfully in 2010 (2 month’s imprisonment); (iii)  possession of equipment fit and intended for smoking of dangerous drug in 2018 (2 months’ imprisonment); (iv)  possession of a dangerous drug in 2018 (4 months’ imprisonment)  and (v)  possession of a dangerous drug in 2020 (8 months’ imprisonment).

2.4   The Applicant failed to report for recognizance on five occasions between 2017 and 2023. He only resurfaced after being arrested by the Police on most occasions for committing criminal offences or absconding, with the last arrest on 15 August 2024 for having absconded since 20 January 2023, ie for almost one year and seven months.

3.  Non-refoulement claim (“NRC”)  and related proceedings

3.1   The Applicant’s NRC was rejected by the Director (“Director’s Decision”)  on 9 May 2017.

3.2   On 22 May 2017, the Applicant lodged a Notice of Appeal/Petition against the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”). On 19 February 2019, the appeal/petition was dismissed (“TCAB’s Decision”).

3.3   On 23 April 2019, the Applicant filed an application for leave to apply for judicial review against TCAB’s Decision (HCAL 1074/2019), which was dismissed by the Court of First Instance on 15 July 2022. His subsequent challenge to the Court of Appeal (CACV 290/2022)  was dismissed on 8 March 2023.

3.4   Following the commencement of the present detention, on 30 October 2024, the Applicant made an application for leave to appeal to the Court of Final Appeal. I was told by Mr Ko that the foregoing application was dismissed on 20 December 2024.

4.  Current detention and its reviews

4.1   The Applicant was arrested by police on 15 August 2024 as an absconder and has been held in immigration detention since 16 August 2024. Between 16 August 2024 and 14 November 2024, he was detained under section 32(3A)  of the Ordinance pending his removal from Hong Kong pursuant to a Removal Order. Between 14 November 2024 and 22 November 2024, he was detained under section 29(1)  of the Ordinance pending inquiry as to whether he ought to be deported. Since 22 November 2024, the Applicant has been detained under section 32(3)  of the Ordinance pending removal from Hong Kong.

4.2   The Applicant’s passport had expired on 9 November 2011 but his identity was previously verified by the Consulate General of the Islamic Republic of Pakistan (“PAK CG”)  on 4 August 2022. At all interviews conducted during the present detention, he has been adamant that he is unwilling to return to Pakistan and has refused to cooperate in completing the reentry formalities. Generally speaking, an emergency travel document can be issued within 2 to 3 weeks after all reentry formalities have been complied with.

4.3   At the commencement of the present detention, there was an outstanding police case concerning taking conveyance without authority and the Immigration Department was in active liaison with the police as to whether the Applicant’s physical presence was required for the outstanding case. On 12 November 2024, the police confirmed that no charge would be laid against the Applicant for the outstanding case.

4.4   In the materials lodged by the Applicant in the present application, the Applicant complained of separation anxiety and mental health condition. Further inquiry has revealed that the Applicant has not contacted the staff at the detention facilities in respect of his mental health condition.

4.5   In the latest review conducted on 13 November 2024 (and served on the Applicant on 3 December 2024), it was considered that the Applicant’s release was not warranted for the following broad reasons:

(1)  The Applicant's removal was going to be possible within a reasonable time;

(2)  The Applicant posed or was likely to pose a threat or security risk to the community;

(3)  The Applicant might abscond / (re)offend;

(4)  There were no other circumstances in favour of the Applicant’s release.

5.  The Applicant’s submissions

5.1   The Applicant’s written materials put forward the following matters:

(1)  The present detention has become unlawful;

(2)  His wife and 3 children are in Hong Kong and he and his family have a fixed abode. He complains that the foregoing has not been or has not properly been taken into consideration in relation to his continued detention, in particular his children’s basic rights to be with their parents;

(3)  He himself is suffering from separation anxiety due to his prolonged separation from his children;

(4)  He is unwilling to return to Pakistan as he fears for his own safety if repatriated;

(5)  He explains that his previous offences relating to dangerous drugs were due to his depression caused by his status as an asylum seeker. However, he is now a rehabilitated person and has been providing assistance to the Rotary Club of Ability Hong Kong Limited (“Rotary Club”)  in sharing sessions with young adults on the disadvantages of taking dangerous drugs. The Rotary Club has issued a letter dated 22 April 2022 acknowledging the Applicant’s assistance and vouching for his good deeds.

5.2   At the hearing, the Applicant confirmed that the preceding paragraph was an accurate summary. He further supplemented as follows. First, he referred to the outstanding criminal case and the impediment created by it to his removal. Secondly, he offered cash bail in the sum of HK$5,000. Thirdly, he offered a guarantor by the name of Mr Riaz Khan.

6.  The applicable principles

6.1   The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

6.2   I remind myself that the burden is on the Respondents to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

6.3   Under Section 32(4A)  of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1)  whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2)  whether the person poses, or is likely to pose, a threat or security risk to the community, (3)  whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place and (4)  factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

6.4   The Court of Appeal has recently provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee’s own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention. It is stated at §29(3):

“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.”

6.5   Where, as here, the Applicant has refused to cooperate with the reentry formalities, Johnson Benjamin is an authority for the proposition that this is a factor which may be taken into account in assessing the reasonableness of his detention. At Johnson Benjamin §37, it is stated:

“Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba)  are necessarily correct. In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of. In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.”

7.  Analysis

7.1   During the present detention, the Applicant is and has been detained pursuant to various sections of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2   The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 137 days, against which the various other factors must be weighed and balanced.

7.3   I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied. I also accept that the Director has acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. The Applicant was regularly interviewed, at which he was approached in respect of his willingness to return to Pakistan and to complete the reentry formalities.

7.4   As at the commencement of the present detention, there was no legal impediment to the Applicant’s removal. The only practical impediment is the Applicant’s refusal to render cooperation in completing the reentry formalities.

7.5   I accept the Respondents’ submission that the Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonable.

7.6   Whilst there is material to suggest that the Applicant may have overcome his dependence on dangerous drugs, were the Applicant to commit another offence, the consequent legal ramifications (potential prosecution and possible imprisonment)  may delay his removal from Hong Kong. The risk of (re)offending remains relevant as shown by the fact that at the time when the present detention commenced, there was an outstanding police case against the Applicant. I also accept the Respondents’ submission that an important consideration in the present case is the risk of the Applicant absconding, which would frustrate the very purpose for which the detention power was conferred and exercised. I take stock of the Applicant’s persistent indications throughout the present detention of his unwillingness to be repatriated and absconding records. It seems to me that the assessment of the existence of such risks cannot be said to have been unreasonably reached.

7.7   As regards the Applicant’s fear for his own safety if repatriated, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

7.8   The Applicant’s reliance on the outstanding police case is no longer valid, as the police had confirmed on 12 November 2024 that no charges would be laid.

7.9   In relation to his complaint of separation anxiety, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required (Mansuri, Intekhab Alam Mohamed Shakil Reza v Hong Kong SAR Government, HCAL 2428/2018, 6 November 2018).

7.10   In any event, the alleged separation anxiety is purportedly caused by being separated from his family. The Applicant and his wife, an Indonesian national, married in April 2011. Their children were respectively born in August 2011, October 2014 and February 2019. His family members reside at an address subsidized by the International Social Service Hong Kong branch and there is evidence to suggest that the Applicant enjoys a close relationship with his family.

7.11   As much as I sympathize with the Applicant, the fact remains that he and his family members (except the youngest child)  are unsubstantiated non-refoulement claimants. I can do no better than echoing Coleman J’s observations in Ruz Esmiralde Naguimbing v Immigration Director [2023] HKCFI 2384:

“[38] But, I am afraid that I can give very little weight to his family circumstances in the current balancing exercise. Removal will take place tomorrow – and I am not prepared to proceed on the assumption that it will not take place as planned. The benefit to enable the Applicant to reunite with his children for one day in Hong Kong before his departure cannot outweigh the real and substantial risk of his failing to appear at the airport tomorrow.

[39] It may also be important for the Applicant to understand that his natural desire to be reunited with his wife and children is best achieved by reuniting with them outside Hong Kong. The Applicant will be removed/deported. The wife will also be removed, as she is subject to a Removal Order. The children would, presumably, travel as a family with the wife. Facing these inevitable facts, it seems to me that the family as a whole should recognise that the desire to be reunited can and should be achieved outside Hong Kong. It can be achieved quickly, and the Applicant can perhaps be the advance party to facilitate the necessary arrangements. It is in that way that the Applicant can satisfy his desire to spend time with his family and to be a father and husband to them.

[40] Indeed, it is also important for the Applicant to understand that flatly refusing to board the repatriation flight does not improve his chances of being released on recognizance, nor of reuniting with his family. Rather, it might simply prolong his detention and his separation from them. It is partly on that basis that I do not proceed in my consideration of this application on an assumption that the Applicant will refuse the repatriation flight. With respect, it seems to me to be in the interests he asserts for him to take it. Perhaps, on reflection, that point will be seen by the Applicant.” (emphasis added)

7.12   Although it may be said the present case is factually more complicated, in that the Applicant is a Pakistani national but the wife is an Indonesian national. But as Coleman J also noted in Biplob SM v Director of Immigration & Anor [2023] HKCFI 1917 in which the applicant was a Bangladeshi national and the wife was an Indonesian national:

“[50] …In any event, both the daughter and the mother are liable to removal from Hong Kong to Indonesia in the reasonably foreseeable future. The Applicant would be free to visit or reunite with his daughter and her mother, somewhere outside Hong Kong, should they wish to do so.”

7.13   I also take into account the fact that there is an extant application for leave to apply for judicial review in respect of the youngest child. As Mr Ko accepted, the wife and the 3 children would unlikely be removed from Hong Kong pending the resolution of the youngest child’s application. As matters presently stand, the wife and the elder 2 children may be removed from Hong Kong subject to the issuance of emergency travel documents. But as a matter of practicality, it is unlikely that the wife and the elder 2 children would be removed before the resolution of the youngest child’s application for leave to apply for judicial review and the consequent completion of reentry formalities. The timeframe estimated by Mr Ko would be in the region of 6 months.

7.14   I am cognizant that the Applicant is subject to a Removal Order and any reunification with the family is impossible during the timeframe suggested by Mr Ko. However, I note that the Applicant had previously been separated from his family for an even lengthier period by reason of his imprisonment. At the end of the day, the Applicant has to realize that he and his family (subject to the resolution of the youngest child’s application for leave to apply for judicial review)  have no right to stay in Hong Kong.

7.15   The reference to lack of family ties in Hong Kong in some of the Notice of Review of Detention is likely to be an error, since the family situation was noted in the review conducted on 13 November 2024.

7.16   In my view, the offer a cash bail and a surety do not outweigh the factors identified above against his release.

7.17   Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.  Conclusion

8.1   By reason of the above matters, I am satisfied that the Applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2   I therefore dismiss the present application with no order as to costs.