ALI MAJID v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 764/2023

[2023] HKCFI 1556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 764 OF 2023

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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 Deportation Order issued on 9 September 2021.  He has been held in immigration detention since 7 September 2021 (except for two short intervening periods of imprisonment), pending his removal from Hong Kong.  To the date of this hearing, the detention has lasted 632 days, or about 1 year and 9 months – on any view, a very lengthy period.

2.  On 18 May 2023, the Applicant applied for writ of habeas corpus.  On 19 May 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 Lynn Hui, 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 born in 1987.

6.  He entered Hong Kong illegally on 17 August 2009 and was arrested by the police on the same day.  On 26 September 2011, a Removal Order was made against him pursuant to section 19 of the Immigration Ordinance Cap 115 (“Ordinance”).

7.  But the Removal Order was not put into effect, because the Applicant lodged a torture claim/non-refoulement claim (“NRC”)  3 days after he landed in Hong Kong, i.e. on 20 August 2009.

8.  Whilst the Applicant’s NRC was being processed, his unlawful stay in Hong Kong was tolerated by the Director.  As of now, the Applicant’s stay has stretched to about 14 years.

9.  He was initially granted immigration recognizance by the Director and was able to live in society freely, pending the resolution of his NRC.  But he committed numerous criminal offences while he was released on recognizance, leading to his being imprisoned on several occasions, and in the issuance of a Deportation Order made against him on 9 September 2021.

C.  Criminal Record and Absconding Record

10.  During his 14 years’ stay in Hong Kong, the Applicant has committed a long list of offences.  Whilst some of them could fairly be described as petty crimes (such as shoplifting), there are also serious crimes (such as drugs related or violent crimes).  I take the following from the summary provided by Ms Hui:

(1)  On 5 October 2012, the Applicant was sentenced to 4 weeks’ imprisonment for unlawful sexual intercourse with a girl under the age of 16.

(2)  On 29 April 2013, he was sentenced to a total of 2 months and one week’s imprisonment for trafficking in a dangerous drug and failing to surrender to custody without reasonable cause.

(3)  On 14 May 2014, he was sentenced to 7 days’ imprisonment for fighting in a public place.

(4)  On 21 May 2014, he was sentenced to 6 weeks’ imprisonment for possession of a dangerous drug.

(5)  On 6 October 2014, he was sentenced to 1 day’s imprisonment for shoplifting.

(6)  On 20 November 2014, he was sentenced to 2 days’ imprisonment plus a compensation order of $55 for shoplifting.

(7)  On 22 December 2014, he was sentenced to 2 months’ imprisonment for possession of a dangerous drug.

(8)  On 8 June 2015, he was sentenced to 2 months’ imprisonment and a compensation order of $3,596 for criminal damage.

(9)  On 17 November 2015, he was sentenced to 4 days’ imprisonment suspended for 12 months and a compensation order of $100 for obtaining property by deception.

(10)  On 14 December 2015, he was sentenced to one month’s imprisonment for failure to comply with the bind over order made on the 24 July 2014.

(11)  On 25 July 2016, he was sentenced to a total of 2 months and 4 days’ imprisonment for possession of a dangerous drug and breach of suspended sentence.

(12)  On 2 June 2017, he was sentenced to a total of 5 months and 4 days’ imprisonment and a compensation order of $7,200 for 2 counts of theft.

(13)  On 26 February 2018, he was sentenced to 4 months’ imprisonment for criminal damage.

(14)  On 22 October 2018, he was sentenced to a total of 5 months’ imprisonment and a compensation order of $254.8 for 2 counts of shoplifting.

(15)  On the 13 November 2020, he was sentenced to 6 days’ imprisonment for shoplifting.

(16)  On 5 May 2021, he was sentenced to a total of 7 months’ imprisonment and a compensation order of $3,544.1 for shoplifting. 

11.  The Applicant has a record of 11 occasions of failing to report to immigration recognizance:

(1)  On 12 February 2010, he absconded until he was arrested by police for being a suspected illegal immigrant and misleading a police officer, more than 7 months later, on 17 September 2010.

(2)  On 29 March 2011, he absconded until he was arrested by police as a wanted person more than 4 months later, on 8 August 2011.

(3)  On 15 July 2013, he absconded until he was arrested by the police as a wanted a person some 5 months later, on 10 December 2013.

(4)  On 8 May 2015, he absconded until he was arrested by the police the next day for criminal damage.

(5)  On 27 February 2017, he absconded until he was arrested by the police more than two weeks later for theft.

(6)  On 15 December 2017, he absconded until he was arrested by the police as a wanted person more than 14 months later, on 25 February 2018.

(7)  On 19 October 2018, he absconded until he was arrested by the police as a wanted person the next day.

(8)  On 15 July 2019, he absconded and he surrendered himself a week later.

(9)  On 29 July 2019, he absconded and surrendered himself about 10 days later.

(10)  On 12 August 2019, he absconded and surrendered himself about a week later.

(11)  On 14 October 2019, he absconded until he was arrested by the police for theft almost 9 months later, on 6 July 2020.

12.  The Applicant has also jumped Court bail on 4 occasions:

(1)  On 4 February 2013, he failed to attend a Court hearing leading to the issuance of a warrant of arrest.  He was arrested as a wanted person 3 days later.

(2)  In 2018, he jumped Court bail on 3 occasions and he was arrested by the police on each occasion.  The specific dates on which he jumped Court bail were not provided to me, but I am told the dates on which he was arrested by the police were 25 February 2018, 20 October 2018, and 5 January 2021.

13.  The following observations could be made:

(1)  As pointed out by Ms Hui, out of the 15 occasions of absconding, on 12 of them he only resurfaced upon being arrested by the police.

(2)  The period of absconding was often long, measured in months, and once even more than a year.

(3)  As also observed by Ms Hui, on each and every occasion the Applicant was released on recognizance or on bail, he would soon either abscond or commit criminal offences, if not both.

(4)  During his long stay in Hong Kong, rather than living as a law-abiding member of the community, his life was punctuated by frequent breaches of the law.

14.  It was after discharge from the last period of imprisonment following the conviction in May 2021 that the Applicant was taken into immigration detention at the commencement of the present detention on 7 September 2021 – though it can also be noted that two short periods (27 June to 6 July 2022, and 21 to 22 July 2022)  were intervening periods of imprisonment as a result of non-payment of fine and non-payment of compensation respectively.

D.  NRC and Related Proceedings

15.  The Applicant lodged a torture claim in August 2009.  This claim was later deemed withdrawn, in June 2013, since the Applicant had failed to submit his claim form.

16.  In December 2013, he indicated his intention to lodge what would come to be called a non-refoulement claim (“NRC”).  In March 2015, his NRC was deemed withdrawn as he failed to submit his claim form.  In August 2015, the Applicant applied to re-open his NRC, which request was refused by the Director in July 2017.

17.  The Applicant then appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”)  against the Director’s refusal.  The Board refused the appeal in October 2017.

18.  Having exhausted all the administrative avenues, the Applicant escalated his claim to the Court.  He applied for leave to challenge the Board’s decision by way of judicial review in HCAL 1253/2018 in July 2018.  The leave application was refused on 8 March 2021.

19.  On the 30 September 2021, the Applicant applied to the CFI for leave to appeal out of time against the refusal of the leave application (“CFI Summons”).  As the chronology indicates, this application was made shortly after he was taken into immigration detention, and was made more than 5 months out of time.  The CFI dismissed the CFI Summons on 15 October 2021.

20.  On 25 October 2021, the Applicant renewed his application before the Court of Appeal (“CA”)  in CAMP 481/2021 (“CA Summons”). The CA dismissed the CA summons on 4 May 2022.

21.  On 16 May 2022, the Applicant sought leave from the CA to appeal against the dismissal of the CA Summons.  This application was dismissed by the CA on 27 October 2022.

22.  The Applicant later renewed his application before the Court of Final Appeal (“CFA”)  in FAMV 205/2023. On 29 May 2023, the CFA issued what is usually known as a Rule 7 summons, notifying the Applicant that his case was considered by the Registrar of the CFA as disclosing no reasonable grounds for leave to appeal and requesting him to file written submissions by 26 June 2023 to substantiate why his application should not be dismissed.

E.  Steps towards Removal

23.  As is usual in habeas corpus applications raised by non-refoulement claimants held in immigration detention, the two major obstacles standing in the way of removal have been the Applicant’s NRC and related proceedings and the need to obtain the necessary documents and permission for him to re-enter his country of origin.

E1.  NRC & Related Proceedings

24.  I have set out the progress of his NRC and subsequent judicial review proceedings above.

25.  Whilst the Applicant’s leave application to the CFA remains to be determined as of today’s hearing, his NRC related proceedings have already ceased to be a removal obstacle since the amended removal policy which came into effect on 7 December 2022.  Since then, once a detainee’s NRC and the subsequent judicial review has reached the stage of being dismissed by the CFI, the NRC and related proceedings will no longer be viewed by the Government as a removal obstacle.

E2.  Re-entry application & replacement passport

26.  The Director’s efforts to obtain a replacement travel document for the Applicant started in April 2022, marked by the sending of a letter to the Consulate General of the Islamic Republic of Pakistan requesting the issuance of a replacement travel document.  After rounds of communication, the Consulate General eventually issued an emergency passport to the Applicant on 7 October 2022.  The passport had a validity period of 30 days.  The Director has since procured the extension of the validity period on several occasions.  The passport was last extended to 28 August 2023.

27.  At some point, the Director discovered that the date of birth printed on the emergency passport was inaccurate.  Action was then taken which resulted in the rectification of the date of birth by the Consulate General on 21 February 2023.

E3.  Attempts to deport the Applicant

28.  The Director’s attempt to remove the Applicant started after the replacement travel document had been issued on 7 October 2022.  The Director said the attempt was made in anticipation that the leave application before the CA would be resolved soon.  The Director informed the Applicant about the plan to remove him in early November 2022, but the Applicant expressed unwillingness to return and had refused to cooperate with the removal arrangement ever since.

29.  As I understand from the evidence, that attempt was at a rather early stage, with no concrete details of execution.  However, once it had become clear that all removal obstacles had been eliminated upon the change of the removal policy on 7 December 2022, the Director has since arranged two repatriation operations with concrete execution details.

30.  The first repatriation operation was supposed to be executed via a repatriation flight fixed for 14 March 2023.  Funding for the air ticket was obtained on 1 March 2023.  Liaison was made with the airlines on 8 March 2023.  However, the Applicant refused to cooperate on the departure date.  After he was escorted to the airport, he strongly resisted to proceed to check-in counter.  The airline staff eventually refused the issue a boarding pass to the Applicant to prevent any threat to aviation security and safety to other passengers.  This repatriation operation was called off.

31.  The Director has arranged another repatriation operation.  A flight from Hong Kong to Pakistan has been booked for 13 June 2023, namely next week.

F.  Review of Detention

32.  Through the period of the present detention, the Applicant’s detention was reviewed 5 times.  On all occasions, continued detention was recommended.

33.  As revealed in the internal minutes, continued detention was recommended on each occasion on the following broad grounds: (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he poses or is likely to pose a threat to a security risk community; (c) he may abscond and/or (re)offend; (d) he does not have a close connection of fixed abode in Hong Kong; and (e) there are no other circumstances in favour of his release.  The Applicant’s criminal and absconding records were relied upon on all occasions.

34.  Two reviews were conducted before the issuance of the replacement passport on 7 October 2022, and progress for the liaison with the Consulate General was noted.  Three reviews were conducted before the change of policy on 7 December 2022, the progress of the NRC related court proceedings (if were on foot at the point in time)  were mentioned and it was recorded that the Director expected the proceedings to be resolved within a reasonable time.

G.  Applicable Principles

35.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the CA 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.

H.  Applicant’s Submissions

36.  In the written materials exhibited to his supporting affirmation, the Applicant submitted the following (in my summary of them):

(1)  He has been denied of his liberty, which is a fundamental human right.

(2)  He has been detained for more than 20 months, which period is unreasonably long.  He referred to the case of “Romeo Santiago HCMP 2592/1988” where the Court is said to have stated that “a period of four months is a very long time for a person to be kept in detention pending his removal from Hong Kong”.

(3)  The Director will not be able to effect removal within a reasonable period of time.  He has been detained for more than 20 months, during which period the Director has tried and failed to remove the him.  It is inconceivable that the Director will be able to remove him even if he is to be detained for any further period.

(4)  He acknowledged that he had committed numerous offences in Hong Kong.  He said that was largely connected to his struggle with his addiction to alcohol.  He had seriously reflected on his past and will modify his behaviour in the future.

(5)  Detention has a negative impact on him.  He has been suffering both physically and mentally.  He has had to endure depression and anxiety.  He considers that his continued detention has amounted to torture and other cruel, inhumane or degrading treatment or punishment.  He also refers to research said to be published by “Refugeeresearch.net” which says that after an average detention of 31 days, over three quarters of detainees became clinically depressed, about two thirds became clinically anxious, and about one third develop clinical post-traumatic stress symptoms.

37.  He also attached a set of medical notes for the medical attention he has received whilst in detention.

38.  At the oral hearing, the Applicant submitted (in my summary of his points):

(1)  He has been detained unlawfully for a 21-month period, which is not a short period, so he has a right to be released.

(2)  Previously, his longest sentence for a criminal offence committed by him was 7 months.

(3)  His life is in danger in his home country, and he cannot be deported.  But in Hong Kong he is safe.

(4)  Three months previously, he was taken to the airport but he refused to board the plane, because he still has a problem in his home country.

(5)  If there were no problem in his home country, there would be no need for him to stay in detention.

(6)  He acknowledges his previous criminal behaviour, which was largely due to a drug habit which he no longer has.  He will not commit further crimes.

(7)  If released on recognizance, he would meet any condition imposed upon him by the terms of recognizance, and he would not abscond.

(8)  He has an ongoing claim in District Court action DCCJ 5768/2021, which has a case management hearing fixed to be heard on 7 July 2023.

(9)  He does not want to go back to his home country until (a)  that claim is resolved or settled, and (b)  he has resolved the issues in his country – after which he will himself say that he wants to go back.

39.  I have taken all of these matters into account as seems appropriate in the relevant weighing and balancing exercise, and will make reference to them seems to me to be appropriate below.

40.  However, it is convenient to reiterate at this point what is and is not the issue to be determined in these proceedings. These proceedings are not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC, and the Court on his habeas corpus application will not look at the merits of any such claim.  Rather, these proceedings are to consider whether the Applicant’s current period of detention to date, and any likely foreseeable future period of detention, has been and/or will continue to be lawful in all the circumstances.  It is worth remembering that the Applicant is subject to an extant and unchallenged Deportation Order, meaning that he is liable to be removed or deported.  The question in these proceedings is simply whether he has been and can continue to be lawfully detained, pending that removal or deportation – which is now fixed to occur in 5 days’ time on 13 June 2023.

I.   Whether Detention has become unlawful

41.  From 7 to 9 September 2021, the Applicant was detained under section 29(1)  which permits detention for the purpose of making enquiry as to whether the Applicant ought to be deported.  A Deportation Order was then issued on 9 September 2021.  Thereafter, the detention was authorised by section 32(3), which permits the detention of a person against whom a deportation order is in force pending his removal from Hong Kong.

42.  Hence, it could not be disputed that there was and remains clear prima facie lawful authority for the detention of the Applicant.  The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

43.  The starting point is that the Applicant has been detained up to today for a period of 632 days, or about 21 months.  This is a very substantial period of time, and it is against that period that the other factors are to be weighed and balanced – remembering that the weight to be given to any factor may vary as the period of detention lengthens.

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

45.  I accept that the Director has always been using the detention powers for the purpose of deportation.  HS1 is satisfied.

46.  I also accept that the Director has been acting with reasonable diligence and expedition in removing the Applicant.  This was clearly demonstrated in the attempt to remove him in early November 2022, and the two repatriation operations, scheduled for 14 March 2023 and 13 June 2023.  Efforts were also seen in the liaison with the Consulate General which led to the issuance of the replacement travel document on 7 October 2022, and the steps taken to extend the validity period of the document so as to keep it current (as well as to correct the date of birth shown on it).  HS4 is satisfied.

47.  Perhaps the period of detention has turned out to be longer than what one would have anticipated when the detention began. This is unfortunate.  But it does not mean that it was unreasonable for the Director at the various points during detention to expect that the NRC related proceedings would be resolved fairly quickly or that a replacement passport would be issued soon.

48.  I have recognised that 21 months is undoubtedly a very long period of detention.  But I agree with Ms Hui that the delay in removing the Applicant was partly caused by his own uncooperativeness.  Had the Applicant chosen to go along with the Director’s previous repatriation arrangements, he could have been returned to Pakistan in March 2023, or even in early November 2022.  As at early November 2022, the total period of detention was about 14 months.  It is a rather weak submission for the Applicant to complain about the unlawfulness of detention continuing for a period after the date when he himself prevented its coming to an end.

49.  I also agree with Ms Hui’s submission that the Applicant is a recidivist.  This is abundantly supported by his long conviction record of criminal offences.  I have no difficulty in agreeing with the Director’s assessment that there is a real risk of reoffending, that reoffending might be serious, and that this factor should weigh quite heavily in favour of continued detention.  In the circumstances, I do not think the weight to be given to this factor is lessened by the Applicant’s assertion now that he would not commit further offences, because almost no weight can be given to that assertion.

50.  There is also a substantial risk that if the Applicant were to be released on recognizance, he would abscond, and thus frustrate the imminent repatriation which is now only 5 days away.  I have noted the Applicant’s assertion now that he would not abscond. But, given his record of resisting deportation at the airport on 14 March 2023, his record of 15 occasions of absconding in the past, and his expressed unwillingness to go (which he reiterated at the hearing today), the flight risk is both real and substantial.  Were the Applicant to abscond, that would defeat the very purpose of the detention.

51.  I take note of the claimed medical conditions of the Applicant.  But I also recognise that the medical notes he attached seem to demonstrate that he was able to receive medical attention while in detention. I agree with the Ms Hui that this factor does not outweigh the other factors pointing in favour of continued detention, which will only last for 5 more days.

52.  As to the claim made by the Applicant in the District Court proceedings, it is apparently a claim made against the Secretary for Justice sued for and on behalf of the Director for damages for unlawful detention relating to an earlier period of detention.  I note Ms Hui’s submission that such proceedings are not regarded as an impediment to removal under the Director’s removal policy.  But, in any event, it seems to me that it is essentially irrelevant to both the question of removal and the question raised in this habeas corpus application.  The Applicant is represented by solicitors in that action.  The Order made by the Master in that action on 18 November 2022 – which the Applicant handed up during the hearing today – was made by consent following the filing of a Consent Summons on 7 November 2022, which must have been signed for the Applicant as plaintiff by his solicitors. Those solicitors are also recorded on the backsheet of the Order as being the solicitors for the plaintiff (i.e. the Applicant)  and appear to have drawn up the Order to be sealed.  The Applicant is perfectly capable of giving his instructions to his solicitors for the conduct of the case management hearing next month, and any future steps as might be taken in the action.

53.  Overall, weighing the period of detention – 632 days, or about 21 months – against all the other factors, including that the Applicant has himself by his own actions contributed to and unnecessarily lengthened the period of detention, that repatriation is imminent, and that the Applicant is to be released soon (albeit in Pakistan), 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.

J.   Result

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

55.  I make no order as to costs.