MUHAMMAD ALI PAHAT v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 880/2023

[2023] HKCFI 1622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 880 OF 2023

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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 the subject of a Removal Order issued on 20 December 2007. He has been held in immigration detention since 15 April 2023, pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 67 days, or a little over 2 months.

2.  On 6 June 2023, the Applicant applied for writ of habeas corpus. On 7 June 2023, I gave leave for the respondent Director and Secretary to file and serve an initial response to the application, and I gave directions to bring the matter to today’s hearing.

3.  At the hearing, the Director and Secretary were represented by Ms Celina Lam, Government Counsel, who also signed the initial response. The Applicant appeared in person with the benefit of an Urdu/English interpreter.

4.  This is my Decision.

B. Immigration Status

5.  The Applicant is a Pakistani national.

6.  He has been removed from Hong Kong before – twice. This is the Director’s third attempt to remove him from Hong Kong.

7.  The two previous removals occurred in 2001 and 2003. Each removal followed a criminal conviction and the issuance of a removal order. Obviously, on both occasions, he came back to Hong Kong after he was removed. He used a different name every time he re-entered Hong Kong. Therefore, the name identified in the title of this action, is the third identity used by this very same person.

8.  After he was removed in 2003, under the name identified in the action title, he re-entered Hong Kong. His presence in Hong Kong was only discovered by the police in 2007 when he was arrested for numerous suspected offence. On his own account, he had re-entered Hong Kong illegally in January 2004.

9.  A (third) removal order was issued against him on 8 November 2007. However, by then he had lodged what is now known as a non-refoulement claim (“NRC”). The removal policy then applied by the Director was to tolerate a non-refoulement claimant remaining in Hong Kong while his NRC or subsequent legal proceedings were being processed. Counting from January 2004, he has been staying in Hong Kong more than 9 years.

C. Criminal Record and Absconding Record

10.  During his almost decade-long stay in Hong Kong, the Applicant has committed a long list of offences –a total of 18:

(1) On 23 November 2001, he was convicted of breach of condition of stay and was sentenced to 1 month’s imprisonment suspended for 2 years.

(2) On 11 April 2003, he was convicted of attempted misleading a policy officer and was sentenced to 2 months’ imprisonment. Because of this, his previous suspended sentence was activated.

(3) On 6 July 2007, he was convicted of theft, unlawfully remaining in Hong Kong and resisting a policy officer in the due execution of his duty, for which offences he was sentenced to a total of 15 months.

(4) On 30 May 2016, he was arrested for assault occasioning actual bodily harm for which he was bound over in the sum of HK$1,000 and for 12 months.

(5) On 26 August 2016, he was convicted of possession of a dangerous drug for which he was eventually sentenced to 8 months.

(6) On 9 January 2018, he was convicted of 3 counts of possession of a dangerous drug and 1 count of possession of Part I poison for which he was sentenced to a total of 10 months.

(7) On 17 June 2019, he was convicted of possession of dangerous drug and possession of Part I poison for which he was sentenced to a total of 6 months.

(8) On 10 August 2022, he was convicted of possession of a dangerous drug, possession of apparatus fit and intended for inhalation of a dangerous drug and possession of Part I poison for which he was sentenced to a total of 10 months’ imprisonment.

(9) On 9 December 2022, he was convicted of possession of Part I poison for which he was sentenced to 22 days’ imprisonment.

(10) On 16 March 2023, he was convicted of affray and sentenced to 6 weeks’ imprisonment.

11.  I also note that, over the years, he was arrested for various suspected offences of which he was eventually not convicted. I place no emphasis on such record in my analysis below, but record that:

(1) From 2009 to 2016, he was arrested for using and in possession of forged, false or unlawfully obtained travel document, aiding and abetting others using and in possession of forged, false or unlawfully obtained travel document, making false representation to immigration officer(s), and using identity card belonging to another person, indecent exposure.

(2) In 2020 and 2021, he was arrested for theft by finding, attempted theft, possession of an identity card relating to another person, going equipped for stealing, possession of imitation of firearm, and possession of firearm and/or ammunition/other arms without licence.

12.  The Applicant has the following record of failing to report immigration recognizance or jumping court bail:

(1) On 22 May 2009, he failed to report immigration recognizance and only resurfaced when he was arrested by the police as a wanted person 5 months later, on 22 October 2009.

(2) He jumped court bail since 24 November 2017 and was re-arrested by the police on 9 January 2018.

(3) He also jumped court bail on 9 June 2022 and was re-arrested by the police on 1 August 2022.

D. NRC and Related Proceedings

13.  The Applicant lodged his NRC in June 2006, which was then closed by the United Nations High Commissioner for Refugees as per the then applicable mechanism the next year.

14.  In July 2007, the Applicant applied for NRC again, but this time to the Director who had become the relevant processing authority by that time. In the following years, he Applicant first requested to close his claim but only to request re-opening the claim again subsequently. In 2009, the Director rejected his request to re-open the claim.

15.  In November 2013, the Applicant applied for NRC the third time. His claim was rejected by the Director in June 2017. He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) which dismissed the appeal in August 2019.

16.  On 16 September 2019, the Applicant applied for leave to challenge the Board’s decision by way of judicial review in HCAL 2700/2019.

17.  After the commencement of the present immigration detention on 15 April 2023, the DoJ, on behalf of the Director, has by letter dated 16 May 2023 requested the Court to accord priority to the Applicant’s case.

18.  HCAL 2700/2019 is now fixed to be heard on 27 June 2023. It can reasonably be anticipated that a decision made on the application within a few weeks after that, not least where the Court is aware of the need for priority to be accorded to the case.

E. Steps towards Removal

19.  The obstacles to the Applicant’s removal are his on-going NRC related judicial review application and the need to replace his expired Pakistani passport.

20.  As said, HCAL 2700/2022 is fixed to be heard on 27 June 2023.

21.  Relevant to obtaining a replacement passport is the Director’s effort to confirm the Applicant’s true identity, which started as early as in 2008. By letter dated 25 January 2008, the Director wrote to the Consulate General of Pakistan to enquiry which was the Applicant’s true identity, amongst the 4 identities he had claimed (3 used to enter Hong Kong and 1 offered by himself to the Director during imprisonment).

22.  By letter dated 1 January 2008, the Consulate confirmed that the identity as named in the title of this action is the true identity.

23.  By letter dated 16 September 2019, the Director requested the Consulate to issue a replacement travel document to the Applicant as soon as possible, for the purpose of facilitating an intended deportation. It can be noted that this occurred more than 3 years before the present detention began.

24.  After the Applicant had been taken into immigration custody, the Director, by letter dated 17 May 2023, informed the Consulate of the fact and urged again for the issuance of a replacement travel document.

25.  I am informed by the Director that the Applicant had initially refused to complete the re-entry application form or to attend an interview with the Consulate, which form part of the procedures one has to go through if he is to be returned to Pakistan.

26.  However, I understand that the Director was able to procure a completed re-entry application form from the Applicant in the end. On 8 June 2023, the Director submitted the completed form to the Consulate during a visit to the Consulate’s office. The Consulate confirmed on that occasion that the Applicant’s application was under processing.

27.  On 14 June 2023, a meeting between the Director and the Consulate was conducted. The Consulate stated that it was necessary for the Applicant to attend an interview with the Consulate for the issuance of the passport and that the passport could be issued in 2 to 3 weeks after verification subsequent to the interview.

28.  An interview with the Consulate was scheduled on 19 June 2023. However, as Ms Lam informed me at the hearing, the Applicant refused to attend the interview (for reasons which he explained in his own submissions: see below).

29.  Nevertheless, Ms Lam informed me that the Director has sought alternative ways for removing the Applicant, and has been told by the Consulate that upon provision of a recent photograph of the Applicant an emergency travel document could be obtained within 2 to 3 weeks. Hence, Ms Lam submitted that removal is imminent.

F. Applicable Principles

30.  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.

G. Applicant’s Submissions

31.  Exhibited to the Applicant’s supporting affirmation are 4 pages of handwritten notes setting out his grounds. In my summary of them:

(1) On HS1, he submitted that the purpose of immigration detention is not for protecting the public.

(2) On HS2, he said he has been detained for a very long period of time which has become unreasonable in all circumstances.

(3) On HS3, he said deportation cannot be effected within a reasonable time. He referred to his on-going judicial review application in HCAL 2700/2022. He further said that if the Court finds merits in his case, his case will drag on.

(4) On HS4, he said the Director did not act with reasonable diligence.

(5) With reference to his criminal record, he said he did not have any conviction related to violence or causing threat to Hong Kong. The sentences of his past offences indicated that his offences were of a less serious nature. He would not be a threat to the community.

(6) With reference to his absconding record, he said he would try his best in the future not to miss reporting to immigration recognizance. He said he has not done so since 2009. He was sorry for what he did in the past.

(7) He also referred to Article 28 and Article 41 of the Basic Law. He said that even non-refoulement claimants are protected from arbitrary detention.

(8) He wishes to stay in Hong Kong with his his wife. His wife, Ms Lau, is a permanent resident of Hong Kong and has applied for a dependant visa for him. He is concerned about his wife, who is now living alone in their old house. The wife’s father had passed away on 3 November 2022 and now the wife is all alone by herself. His wife used to be close to her father and the Applicant. The wife is willing to stand as his guarantor.

32.  The Applicant also attached a marriage certificate showing that he was married to Ms Lau on 29 January 2010, some photos said to show him and his wife and her family members together, a death certificate showing that a Mr Lau (said to the be father in law) died on 3 November 2022, and a letter apparently penned by the wife stating that she had married the Applicant for more than 10 years and was willing to “bail him out”.

33.  It can relevantly be noted that the Director was aware of the Applicant’s family circumstances. The Director has reviewed the detention of the Applicant on 15 June 2023 and has recommended continued detention rather than granting immigration recognizance. As shown in the internal minutes, the Director said that the fact that the Applicant has a permanent resident wife who is willing to be his guarantor does not outweigh the other factors in support of detention.

34.  At the oral hearing, the Applicant made further submissions which were reasonably focused and directed. I have taken them into account, and will refer to some of them as appropriate, in my reasoning below. In my summary of the Applicant’s submissions, they were as follows:

(1) His NRC has reached only the stage of the first application for leave to apply for judicial review (to the Court of First Instance), and if that application is decided against him he can pursue further appeal steps up to the Court of Final Appeal (“CFA”).

(2) Even after the CFA might have dismissed his application, another option is for him to lodge a ‘subsequent claim’.

(3) That whole process may take several years, perhaps 3 to 4 years, to complete.

(4) That is, of course, only if he is to lose the case. But he has applied for legal aid, and is sure that if legal aid is granted he will win his case and the NRC would be remitted back to the Board.

(5) That would of course begin another process, which potentially could last years.

(6) It is his right to go through the legal process until it is complete, and he should be released until the legal steps are completed

(7) He is not a “security risk”, as his offences committed in Hong Kong were minor cases, such as possession of dangerous drugs, and he is neither a terrorist not a big criminal.

(8) He is offences which he committed have not affected the people of Hong Kong, there being no offence of theft or robbery or violence.

(9) As to the suggestion that he committed the offence of affray, in fact that occurred whilst in detention when he was beaten up by two other people.

(10) As to his committing drugs offences, he knows many Hong Kong residents who have been convicted of possession of dangerous drugs on numerous occasions, whereas he was only convicted on four occasions. The Hong Kong residents are being treated differently, and he is therefore suffering discrimination.

(11) For those offences of which he was convicted, he has already served the sentence.

(12) It is his right not to be forced to be separated from his wife. They wish to be together and now to grow their family (where his wife is 40 and he is 47).

(13) His wife is now living alone, since her father passed away, in a wooden house which requires significant repairs which she cannot do.

(14) Throughout his time in Hong Kong since 2007, he has never sought or taken support from ISS or from government public funds. He is supported by his wife, and that can continue.

(15) His wife is a permanent resident who will stand surety for him to be released on recognizance. She has previously been his surety for release on recognizance.

(16) On the occasions when he jumped Court bail in 2018 and 2021, his wife was not the surety – I think this point inviting the inference that so long as his wife is the surety he will honour any requirements of release on recognizance.

(17) During his recognizance period, he missed signing only once, as a result of a confusion as to the relevant date (at a time when the signing dates were spaced further apart). That was in 2009, and he has not missed any requirement set by the ImmD since then.

(18) His alleged refusal to cooperate with obtaining a travel document is put the ‘wrong way round’. It is not he who is not cooperating; rather it is the others who are not cooperating with him in circumstances, where he does not wish to return to his country.

(19) He is not ready to cooperate with the Respondents in enforcing the removal order against him which they wish to enforce.

(20) He is particularly not ready to cooperate in forcing a separation between himself and his wife.

(21) He asks the Court to show sympathy, and to release him on recognizance.

H. Whether Detention has become unlawful

35.  The detention was authorised by section 32(3A), which permits the detention of a person against whom a removal order is in force pending his removal from Hong Kong. The removal order issued on 8 November 2007 is extant. Hence, it could not be disputed that there was and remains clear prima facie lawful authority for the detention of the Applicant.

36.  The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

37.  The starting point is that the Applicant has been detained (up to today) for a period of 67 days, or a little over 2 months. It is against that period that the other factors are to be weighed and balanced.

38.  I can address and apply the Hardial Singh principles broadly in turn, as follows.

39.  I accept that the Director has always been using the detention powers for the purpose of deportation. There is no basis to suggest that the Director was using the detention for another purpose, whether that is the purpose of further punishing the Applicant for his previous offences, or the purpose of protecting the public of Hong Kong (albeit that latter point is a factor the Director is entitled to take into consideration in deciding if an immigration detainee should be detained or released on recognizance). HS1 is satisfied.

40.  I also accept that the Director has been acting with reasonable diligence and expedition in removing the Applicant. This was clearly demonstrated in the active liaison with the Consulate to procure the issuance of a replacement passport for the Applicant, as well as, to a lesser extent, in urging the Court to accord priority to the Applicant’s judicial review application. HS4 is satisfied.

41.  HCAL 2700/2022 will be heard soon, on 27 June 2023. As stated, it could reasonably be expected that the Court will endeavour to determine this case shortly after the hearing, given that it has been made aware that the Applicant is currently held in detention. The is no difficulty in identifying a real sense of the timescale within which the current obstacle to removal posed by the outstanding application for leave to apply for judicial review could be resolved.

42.  The Applicant is correct in identifying that the result of the current application before the CFI is not yet known. But,, as I have commented in earlier cases, I do not think it necessary upon this application to second guess the Court’s decision, or to assume either that the NRC will be remitted back to the Board, or that there is a proper basis upon which to appeal from that decision if it goes against the Applicant. Those are matters which can be considered, as may be appropriate, in due course.

43.  But it is important to disabuse the Applicant of his apparent understanding that he cannot be removed until the completion of all further legal steps (and any subsequent claim) as he might choose to make. As is now well known, the Director’s removal policy was updated in December 2022. Under the updated removal policy, removal from Hong Kong of an unsubstantiated non-refoulement claimant can be removed from Hong Kong, even if there are outstanding court proceedings, upon the CFI’s dismissal of the application for leave (including an application for leave for an extension of time) to apply for judicial review pertaining to the NRC, or if leave has been granted and judicial review has been commenced, the CFI’s dismissal of that application.

44.  Hence, if his current application is dismissed by the CFI, and even if the Applicant chooses to pursue further legal steps by way of appeals or a subsequent claim, those steps will not ordinarily be treated as any impediment to removal in accordance with the Removal Order against him.

45.  The delay in the issuance of the Applicant’s passport was, at least, partly to blame on the Applicant himself. Had the Applicant been cooperative in going through the application formalities, the passport might have already been issued. Even as of today, the passport could be issued in a matter of 2 to 3 weeks if the Applicant is willing to attend an interview with the Consulate for this purpose. In any event, even without his cooperation, it seems that an emergency travel document can be obtained for the Applicant within a similar timeframe.

46.  I also think it fair for the Director to place emphasis on the Applicant’s criminal record, which stretches into a very long list. I have no difficulty in accepting that there is a real risk of reoffending, that reoffending might be serious (even if not at the most serious end of potential offences), and that this factor should weigh quite heavily in favour of continued detention. In part flowing from the repeated nature of them, I reject the Applicant’s submissions that his past convictions are not of a serious nature (even if individually they are perhaps properly regarded as being more minor than the offences and some other cases).

47.  In passing, I note the Applicant’s rejection of the suggestion that he poses a “security risk”. If that term is understood in its common parlance, as meaning something like terrorism, I accept that the Applicant does not pose that sort of risk. But if the term is understood as meaning a risk to the overall well-being of Hong Kong and its population, then the Applicant’s offending history identifies that he poses such a risk.

48.  Further, the Applicant has been removed twice. But he has illegally returned to Hong Kong despite being removed twice before. Coupled with his absconding record and the clearly expressed unwillingness to go, I agree that there is a real risk that he may abscond when the departure date draws close. Indeed, whilst asserting that the matter has been described the wrong way round, the Applicant has for all practical purposes clearly identified that he is choosing not to cooperate with the relevant authorities because he does not wish to cooperate in any steps which would allow his removal to take effect. There is good reason to think that the Applicant might take other steps as would frustrate removal. As Ms Lam summarised it, the risk of absconding is certainly “not low”, and absconding would frustrate the very purpose for which the power to detain is granted in the first place.

49.  I acknowledge that the Applicant’s wife is prepared to stand surety for him, and this is a matter to be given some real weight. I also take into account her own circumstances, and the natural desire that the husband and wife not be separated. However, I note that the Applicant has repeatedly committed offences during the relationship with and marriage to the wife, and there is significant room for doubt that she can in fact ensure that he will act in compliance with conditions imposed for release. There is also no great comfort to be found in the Applicant’s assertion that when he jumped court bail, twice, some person other than his wife was the surety.

50.  Further, even at the time they married, the Applicant was subject to the removal order. This habeas corpus application is not the occasion on which to decide whether or not the Applicant should be removed. Rather, the question is whether it continues to be lawful to detain the Applicant pending the removal which is due to occur in accordance with the extant Removal Order.

51.  I agree with the Director’s assessment that the family connection and the wife’s offering to act as surety or guarantor for the Applicant, if he is to be released on recognizance, is insufficient in the present circumstances to outweigh the other factors.

52.  Overall, weighing the period of detention – 67 days, or about 2 months – against all the other factors (including that the current two impediments to removal may well be resolved within the next few weeks), I am satisfied that the detention of the Applicant has remained and will remain or continue for a period which is reasonable and lawful. HS2 and HS3 are satisfied.

I. Result

53.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus.

54.  I make no order as to costs.