AZAM ADEEL v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1306/2022

[2022] HKCFI 3778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1306 OF 2022

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J U D G M E N T

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A. Introduction

1.  This application for a writ of habeas corpus was filed on 22 November 2022, but with a supporting affirmation dated earlier on 16 November 2022.  That date was less than two weeks after 4 November 2022, when I heard and dismissed the Applicant’s previous similar application which had been made on 20 October 2022 in HCAL 1119/2022: see my Decision [2022] HKCFI 3385 (“1^st Decision”).

2.  As my 1^st Decision recorded, the Applicant is subject to a Deportation Order made on 25 October 2022, and had previously been made the subject of a Removal Order issued on 19 April 2010.  Those orders were made under sections 20 and 19 respectively of the Immigration Ordinance Cap 115 (“Ordinance”).  The Applicant has been held in immigration detention since 24 January 2022, initially pending removal and subsequently pending deportation. 

3.  As at the date of my 1^st Decision, the Applicant had been held in immigration detention for a period of 285 days (or 9½ months).  I held that that period of time had been reasonable, and hence lawful, throughout.

4.  To the date of this hearing, the period of immigration detention has now lasted 334 days (or 11 months).  The question to be answered on this application is whether that period has now become unreasonable, and hence unlawful, in all the present circumstances. 

5.  It might be thought that the closeness in time of this application following my 1^st Decision would suggest that there has been little change in the overall circumstances, except the passage of another 1½ months.  Hence the suggestion made on behalf of the Respondents (“Director” and “Secretary” respectively)  that there can hardly be any fresh evidence pursuant to section 23(1)  of the High Court Ordinance Cap 4 or any real change of circumstances.  However, perhaps the elements which might be regarded as further change are as follows: first, at the time of my 1^st Decision it had been anticipated that the Applicant might be deported on 9 November 2022 in accordance with arrangements made for deportation on that date; secondly, since the time of my 1^st Decision, there has been an updated removal policy brought into effect as from 7 December 2022.  Certainly, I have not shut out the Applicant from having this application heard.

6.  At the hearing, the Applicant has again appeared in person with the benefit of an Urdu interpreter.  The Director/Secretary have been represented by Mr Frenki Fung and Mr Thomas Tong, both Government Counsel.

7.  This is my Decision.  I dismiss the application for a writ of habeas corpus, for the reasons set out below.

B.  Factual Matters

8.  The relevant factual matters applicable up to the date of my 1^st Decision can be found in Section B of my 1^st Decision, at §§7-31.  Those paragraphs can be read, and I do not think that I need to rehearse in this Decision the totality of those matters.  Suffice it to summarise them as follows:

(1)  The Applicant entered Hong Kong illegally in November 2007 and was made subject to a Removal Order on 19 April 2010.

(2)  The Applicant has a criminal record of committing numerous offences including trafficking in dangerous drugs and offences of dishonesty, and has served several prison sentences.

(3)  The Applicant’s non-refoulement claim was first raised in 2007, and had been rejected by the Director on all applicable grounds by 2016.  The Applicant’s appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”)  was dismissed on 17 September 2017 (“Board Decision”).

(4)  Part of the reason for the Board Decision was that the Applicant had failed to appear for the Board hearing on 18 July 2017, shortly after he absconded for what turned out to be the lengthy period of about 4½ years from April 2017 to October 2021.

(5)  The Applicant resurfaced only when he was arrested for the offence of obtaining property by deception, at the end of the sentence for which he was taken into the present period of immigration detention.

(6)  Only after being detained did the Applicant seek to challenge the Board Decision by way of an application for leave to apply for judicial review made on 8 February 2022 (more than 4 years out of time).

(7)  That application was dismissed on 13 July 2022 (“CFI Decision”), following a hearing at which the Applicant failed to appear, and after the Applicant stated his wish to withdraw the leave application and to return to Pakistan as his problem there was already solved.  The application was nevertheless determined on its merits.  The necessary extension of time was refused and the Board Decision was held to be “utterly without fault”.

(8)  After more delay, the Applicant applied to the CFI by summons issued on 6 October 2022, seeking leave to appeal out of time from the CFI decision to the Court of Appeal (“EOT Summons”).  The EOT Summons did not identify any grounds which might properly support the application.

(9)  During the detention, the Applicant’s detention has been reviewed several times.  On every occasion, continued detention was recommended, on grounds including that: (a)  the Applicant’s removal is going to be possible within a reasonable time; (b)  he may abscond and/or reoffend; (c)  he poses or is likely to pose a threat or security risk to the community; and (d)  there are no other circumstances favouring his release.

9.  The following factual matters have occurred since my 1^st Decision. 

10.  It was only at the hearing on 4 November 2022, leading to my 1^st Decision, that the Director/Secretary learned that the Applicant had apparently issued the EOT Summons on 6 October 2022.  In light of the legal impediment to removal thereby created under the then prevailing removal policy, the Applicant was not deported on 9 November 2022, despite arrangements for that having previously been made.

11.  On 11 November 2022, the Applicant wrote to the Court pointing out that he was supposed to have been deported on 9 November 2022, which the Immigration Department (“ImmD”)  “acknowledged and agreed to do so” during the hearing on 4 November 2022, but they failed to send him back. He therefore requested the Court to order his release from detention on recognizance.

12.  The Applicant also made various requests to ImmD to be released on the basis that because of his “still running” NRC it is impossible to remove him within a reasonable time, including on the departure previously scheduled for 9 November 2022.  The Applicant also repeated his expression of unwillingness to return to his home country

13.  On 25 November 2022, the Consulate General of the Islamic Republic of Pakistan extended the validity of the Applicant’s emergency travel document to 25 December 2022.

14.  By Memorandum dated 9 December 2022, the Director sought the Secretary’s review of the detention authority under section 32(3)  of the Ordinance.  In the review of continued detention authority, the ‘Recommendation’ section of the review was as follows:

3.  In CACV 183/2021, the Court considered the risks of absconding and re-offending are of critical and paramount importance in the assessment of the lawfulness of the detention. 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.  The fact that the subject has family connections in Hong Kong has been taken into consideration.  However, based on his adverts records which he was released on two occasions but each time he was then absconded for a long period of time (i.e. two years and three months, and four years respectively), we are of the view that such local connections cannot alleviate his absconding risk.

4.  The subject’s non-refoulement claim was rejected by ImmD and appeal / petition was dismissed by TCAB / NCPO, and his application for leave to apply for judicial review was dismissed by the CFI as early as 13 July 2022.  Even though he kept lodging unmeritorious appeal / application for extension of time to further appeal, under the current removal policy with effect from 7 December 2022 of ImmD, there is no outstanding legal impediment hindering the subject’s deportation.  Repatriation of the subject can be executed imminently despite his unwillingness to return to his home country, especially considering that the subject has a valid Pakistani emergency passport.

5.  In HCAL 1119/2022 (the previous application for writ of habeas corpus), the Court has already observed the subject was year’s intention to bring unmeritorious applications solely for the purposes of seeking to create a legal impediment to removal.  The Court also considered that bringing applications which have no merit simply as an attempt to delay removal can and in most cases will, be treated as that applicant’s own decision to remain in detention and to prolong the detention until the removal.  The subject’ as to tension might have ended much earlier had he not submitted his summons seeking time extension of appeal, which was an application with no merit and plainly a reaction to his detention.

6.  Moreover, after the subject’s application for writ of habeas corpus was dismissed by the Court on 4 November 2022, he soon filed another application for writ of habeas corpus on 22 November 2022.  In his affirmation at (34), he simply stated “the ImmD has scheduled a repatriation flight for him on 9 November 2022 but failed to remove him” and alleged his detention was not unlawful (sic).  It must be emphasised that the subject was yes removal was not executed due to his then unmeritorious outstanding legal proceedings and his continued detention was inflicted by himself.  The same had already been pointed out by the court at the judgment of HCAL 119/2022.  However, he still continued to pursue for another application for writ of habeas corpus.  It is very obvious that the subject is abusing the procedure of handling non-refoulement claims / judicial review / habeas corpus to try hindering ImmD to remove him from Hong Kong.

7.  Based on the information provided by ImmD, we concur with the ImmD’s view that there is a high risk of absconding if the subject is released on recognizance with reference to his adverts records.  He also poses a threat and security risk to the local community.  Furthermore, the subject currently has no outstanding non-refoulement claim and / or legal proceedings hindering his deportation under the prevailing removal policy.  The issue regarding his re-entry to Pakistan has already been settled.  Balancing the circumstances of the case, it is considered that there are grounds for continued detention of the subject. Flight will be arranged by ImmD once again to deport him from Hong Kong after the hearing of his application for writ of habeas corpus.

15.  Authority for continued detention was granted. 

16.  Subsequently, on 16 December 2022, the Director concluded that this is not a case warranting release of the Applicant on recognizance in view of his detention under section 32(3)  of the Ordinance pending his deportation from Hong Kong.  The Notice of review of detention provided to the Applicant identified that release on recognizance was not granted on the grounds that: (a)  his removal is going to be possible within a reasonable time; (b)  he poses or is likely to pose a threat or security risk to the community; (c)  he may abscond and/or reoffend; and (d)  there are no other circumstances in favour of his release.

17.  On 13 December 2022, the Applicant notified the Director/Secretary that he had applied for Legal Aid on 29 November 2022 against his deportation.  He stated he would wait for Legal Aid and respond after he had applied for judicial review against the Deportation Order. Obviously, that application for Legal Aid does not and/or should not act to create a stay in these proceedings. 

18.  I have since received a Form 86 dated 20 December 2022, issued in HCAL 1543/2022, by which the Applicant seeks leave to apply for judicial review in respect of the Deportation Order made against him on 25 October 2022.  I have not seen any memorandum of an application for Legal Aid received by the Court.  The Applicant’s affirmation in support simply states in the body of the affirmation:

I am the Applicant herein.  Secretary of Security made Decision dated 25 October 2022 to deport me.  The decision was error of law, and I need oral hearing under Rule 53, 3(3)  of the Rules of High Court.

19.  Attached to the affirmation are various documents, including five handwritten pages of submissions which essentially focus on the proper approach to determination of a torture claim. 

20.  Obviously, I had to deal with that application separately, and the Applicant had asked for an oral hearing.  As a result, I conducted that oral hearing at immediately before hearing the submissions on this habeas corpus application.  Having done so, I dismissed the application for leave to apply for judicial review to challenge the Deportation Order, for reasons which I said I would hand down later.  In short, the Applicant has not raised any reasonable grounds of challenge with any reasonable prospect of success, so he cannot meet the necessary hurdle for the grant of leave to apply for judicial review.

C.  The Updated Removal Policy

21.  The Government recently updated the removal policy, taking effect as from 7 December 2022.  Under the updated removal policy, may generally proceed with removal from Hong Kong of an unsubstantiated NRC claimant upon either (a)  the CFI’s dismissal of an application for leave to apply for judicial review (including an occasion for an extension of time to make an application for leave)  or (b)  if leave has been granted for a judicial review, upon the CFI’s dismissal of that application for judicial review. Therefore, subject to any Court order, ImmD’s removal operations may generally proceed irrespective of:

(1)  whether the claimant will appeal or has already filed a notice of appeal to the higher Court(s)  against the dismissal decision by the CFI, unless the higher Court(s)  has(have)  reversed the CFI’s dismissal decision on the respective JR proceedings before ImmD’s execution of removal operation; and

(2)  whether the claimant will initiate or has already initiated other legal proceedings pertaining to his or her removal, unless there are court rulings against the removal operations before the same are executed.

22.  However, having noted the updated removal policy, I do not need to address it further in making my decision in this case, as it would not alter the result.  On the chronology – and where I have dismissed the Applicant’s latest application for leave to apply for judicial review to challenge the Deportation Order made against him – a decision on the only outstanding application made by the Applicant can be expected to be received within a relatively short timeframe, and I have taken that into account in accepting that the period of detention has been, and will likely continue to be, reasonable in all the circumstances (see below).

23.  I would merely further note that the impact of the updated policy is that it would enable the Director to remove a detained person sooner than would have been effected under the old policy.  Thus, the likely period of detention for a person detained pending removal would be made shorter.  In the context of applications for a writ of habeas corpus, and depending on the other factors to be brought into the balance in any given case, this factor might be thought to tilt the balance towards continued detention rather than release on recognizance.

D.  Applicable Legal Principles

24.  In my 1^st Decision at §§32-33, I set out the relevant principles to be applied in a case such as the present, by reference to the Court of Appeal’s Reasons for Judgment in Harjang Singh v Secretary for Security [2022] HKCA 781.

25.  I will not rehearse those principles again in this Decision, but I have applied them to the particular circumstances of the current application.

E.  Applicant’s Submissions

26.  Together with the application for writ of habeas corpus, the supporting affirmation stated that the Applicant would rely on the Hardial Singh principles, namely that an initially lawful detention can become unlawful.  A brief recitation of those principles was also attached.  No other points were made in support of the application in writing prior to the hearing.

27.  At the hearing, the Applicant made following submissions by way of a mix of oral and further written submissions, which can be broadly summarized as follows:

(1)  Though not formally registered, his religious marriage to his wife (called Ms Emy in my 1^st Decision)  is genuine, as in the demonstrated in the photographs shown to the Court.

(2)  Ms Emy has written an (undated and unsigned)  letter to the Court confirming the marriage under Islamic customs and expressing the problems caused by the detention of the Applicant removing his physical and emotional support to her and the family.  She offers her own undertaking that the Applicant would not break any law, would stay with them and abide by all bail conditions which may be imposed.

(3)  The detention has continued for a period of time that in all the circumstances is unreasonable, and deportation cannot be affected within a short reasonable time.

(4)  The period of detention is already significantly longer than has in other cases been described as a “very long time”.

(5)  Liberty of the subject is a fundamental human right, and continuing to detain him shows a lapse of judgment.

(6)  He is not a security risk, and the assessment of the risks does not identify in the tick box form the weight and balance of the various factors.

(7)  The risks of committing further offences and absconding are separate and must be considered separately.

(8)  His previous offences did not involve violence, there was no harm to any person, and no financial harm because the property was re-gained by the person to whom it belonged.  Further, he was a reluctant participant to the offence of obtaining property by deception.

(9)  To continue to detain him is the same as duplicating his sentence.

(10)  There must come a time when the risk of committing offences or absconding no longer justifies continued detention.

(11)  The EOT Summons remains in progress, and he has filed further submissions with the Court of Appeal on 13 December 2022, seeking to explain why he should be granted the extension of time.

(12)  He wants to stay with his wife and stepson, and separation has been mentally harmful for him and his family.

(13)  He is still in danger if he returns to Pakistan.

(14)  He can provide a fixed abode to enable him to be located easily, with his uncle and aunt who are permanent residents, and another friend who can provide being an additional guarantor.

(15)  The internal review suggesting that he only told ImmD about his uncle and aunt in September 2022 is incorrect, as his legal representative had expressly referred to them as early as May 2022.

28.  I have taken these various matters into account as seem to me to be appropriate.

F.  Whether Detention Has Now Become Unlawful

29.  The Applicant is subject to a valid and subsisting Deportation Order, and I have dismissed his attempted challenge of the Deportation Order by way of his recent application for leave to apply for judicial review.  Therefore, there can be no dispute that there has been continued lawful authority to detain the Applicant under section 32(3)  of the Ordinance.  The question posed by this application is whether the detention has become unreasonable, and hence unlawful, by reference to the application of the Hardial Singh principles.

30.  As before, I accept that the Director intends to remove or deport the Applicant pursuant to the Removal Order and the Deportation Order at the earliest possible opportunity, and that the powers of detention have only been used and are still only being used for the purpose of and so as to work towards the removal or deportation of the Applicant.  Hence, I accept that HS1 is satisfied.

31.  I also accept that the Director has acted with reasonable diligence and expedition to effect removal.  In §49 of my 1^st Decision, I noted that the reasonable diligence and expedition was evident from the efforts of the Director/Secretary in obtaining the replacement travel document until one was issued, the renewal of the validity period in the scheduling of a repatriation flight (although that has since been overtaken by events).  It is also evident by the further renewal of the validity period of the travel document, and in the anticipated steps for yet further renewal beyond 25 December 2022.  Indeed, but for the EOT Summons, of which the Director/Secretary were unaware until the hearing on 4 November 2022, the Applicant would have been repatriated on 9 November 2022.  As a result of the continued liaison, it seems to me to be likely that the travel document will be extended beyond 25 December 2022, if necessary, to permit removal in the reasonably close future.  Hence, I accept that HS4 is satisfied.

32.  I also accept that HS3 is satisfied.  Mr Fung has placed reliance upon the observations made by me in §§45-48 of my 1^st Decision, where I stated:

45.   Indeed, as Ms Ngai submits, the Applicant’s detention might have ended much earlier had he not submitted his NRC leave application – which was an application with no merit and plainly a reaction to his detention, and which was in any event one he subsequently expressed he wished to withdraw.  It could end by 9 November 2022, unless it is extended by the applicant’s own choice in making the renewed application.

46.   I would also point out that the clearly stated purpose of automatically pursuing proceedings, irrespective of their merit, so as to create a legal impediment to removal is deeply unimpressive.  Perhaps it is high time that that message is made absolutely clear. 

47.   It should be made absolutely plain to persons in the position of the Applicant that if they choose to bring unmeritorious applications solely for the purposes of seeking to create a legal impediment to removal, that is not a weighty factor in support of an application for release where it is argued that the period of detention has become unreasonable, and so unlawful.  Bringing applications which have no merit simply as an attempt to delay removal can, and in most cases will, be treated as that applicant’s own decision to remain in detention and to prolong that detention until the removal.  Whilst I acknowledge the legal right to make applications and to seek leave to appeal, there is no obligation to do so. Doing so is a choice, and the making of such unmeritorious applications will in general not “buy” a release on recognizance, nor persuade the Court that release is appropriate.  In fact, it will likely point in precisely the opposite direction. 

48.   This case is particularly clear. In this particular case, the Applicant has still not provided any explanation for the significant delay following the Board Decision (which seems in reality to have been caused by the fact that the Applicant absconded and disappeared for the more than four years until he was re-arrested).  The underlying challenge to the Board Decision has been held to be of no merit at all, because the Board Decision is “utterly without fault”.  The summons seeking leave to appeal is also one made out of time, even beyond the time permitted if one starts from the date the Applicant says he received the CFI Decision on 5 September 2022.  That application identifies no proper grounds and seems to me to be one likely wholly without merit, and any renewed attempt to pursue the matter to or beyond the Court of Appeal also likely without merit.

33.  I remain of the view that the EOT Summons is one likely wholly without merit, and the issuing of it and, indeed, the previous application for leave to apply for judicial review significantly out of time and as a reaction to being taken into detention were intended to create a legal impediment to removal in a way which is deeply unimpressive.  Notwithstanding what I made clear in my 1^st Decision, the Applicant chose not to withdraw the EOT Summons, but instead continued to assert that it created a legal impediment to his removal as might justify an immediate release on recognizance.  Not only that, he issued the application in HCAL 1543/2022 seeking to challenge the Deportation Order, even though even if that were to have succeeded the Applicant would remain liable to for removal under the Removal Order.  Hence the only obvious logical purpose of commencing HCAL 1543/2022, which I have now dismissed as having no merit, was to seek to create a further legal impediment to removal with an outstanding claim before the CFI.

34.  It can also be noted that in §54 of my 1^st Decision, I proceeded on the basis that the EOT Summons would be able to be dealt with before 9 November 2022.  But I went on to state that, even if repatriation on that date was somehow frustrated, there was no reason to believe that the EOT Summons would not be determined within a very short period of time (where the word “not” was missing as a result of a typographical error).  Of course, after the passage of a few weeks, there is perhaps even less reason to believe that the EOT Summons would not be determined within a very short period of time.  Though it is a matter for the Court of Appeal to determine, I doubt the further submissions recently filed by the Applicant would be thought to improve the merits of the application, where the original refusal of extending time included a merits review and the decision that there was no merit in claim.

35.  I also remain of the view expressed in §50 of my 1^st Decision that considerable weight is to be placed on the Applicant’s criminal history and absconding records as factors favouring continued detention, and for the reasons I also expressed in that paragraph.  I confirm that I have considered the risks of reoffending and absconding separately, and it seems to me that the risk of reoffending is not low, and the risk of absconding is high.

36.  I think the risk of absconding remains high, notwithstanding that the Applicant has local relatives and his wife has offered her support and her own undertaking.  Further, I agree with the Director/Secretary that those local connections do not outweigh the other factors pointing to continued detention, including for reasons I canvassed in my 1^st Decision, such as that Ms Emy is herself liable to removal from Hong Kong.

37.  Looking at matters overall, and weighing all the various factors in the balance – as against the period of detention of around 11 months and may be extended by a further month or so – I conclude that the Applicant has been detained, and would likely be further detained for a reasonable period.  HS2 is satisfied.

G.  Result

38.  The Applicant’s application for a writ of habeas corpus is dismissed, with no order as to costs.