GHOUS NIAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1234/2023

[2023] HKCFI 2050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1234 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is a subject of a Removal Order dated 13 December 2012 and a Deportation Order dated 13 December 2019. He has been held in immigration detention since 1 February 2023 pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 189 days, or a little over 6 months.

2.  On 20 July 2023, the Applicant applied for writ of habeas corpus seeking his immediate release from detention. On 24 July 2023, I gave leave for both respondents to file and serve a response and the necessary directions to bring the matter to today’s hearing.

3.  It may be noted that in the initial application form, only one respondent is identified, namely the Hong Kong Government. But in the supporting affirmation, the Applicant named the two respondents now identified in the title of this action. By letter dated 2 August 2023, the 1^st Respondent Torture Claims Appeal Board/non- refoulement Petition Office (“Board”) sought to be excused from attending the hearing on the basis that it does not have the custody of the Applicant and thus is clearly not the correct respondent to this application. That is obviously correct. On 3 August 2023, I excused the Board’s attendance.

4.  At the hearing, the Director was represented by Mr Felix Lee, Senior Government Counsel (Ag.) of the Department of Justice (“DOJ”). Mr Lee said he also has authority to represent the Secretary for Security which was involved in making the decisions relevant to the present detention. The Applicant appeared in person with the benefit of an Urdu/English interpreter.

5.  This is my Decision.

B.  Immigration Status

6.  The Applicant is a Pakistani national born in 1984.

7.  His presence in Hong Kong was first spotted in September 2012 by the police, who then arrested him for being a suspected illegal immigrant. In the same month, the Applicant raised a torture claim pursuant to section 37X of the Immigration Ordinance, Cap 115 (“Ordinance”).

8.  As already set out above, a Removal Order was then issued against the Applicant on 13 December 2012. But such an order could not be executed if the person the subject of the order has made a torture claim which has not yet been finally determined: see section 37Z.

9.  By April 2013, the Applicant’s torture claim had already been rejected by both the Director and the Board, thus rendering the claim “finally determined” and the Applicant “removable” under section 37Z.

10.  However, in November 2013, the Applicant made a non-refoulement claim (“NRC”) on grounds other than torture risk when such other grounds became available as a result of development in the jurisprudence. In the following 6 years, he exhausted all available administrative avenues and the judicial avenues – up to the Court of Final Appeal (“CFA”) – in attempts to establish his claim. His NRC was only brought to an end in March 2021, when the Appeal Committee of the CFA refused to grant him leave to appeal by way of the ‘rule 7 procedure’.

11.  Less than 2 weeks after the ultimate rejection by the CFA, he requested to make a subsequent claim under section 37ZO of the Ordinance, which was rejected by the Director in October 2021.

12.  While his NRC and related legal proceedings were being processed, the Deportation Order was issued against the Applicant on 13 December 2019. This is because the Applicant had committed an offence which made him liable to be made subject of a deportation order under section 20(1) of the Ordinance. The offence he committed was “taking employment while being a person in respect of whom a removal order is in force” for which he was sentenced to 15 months’ imprisonment on 15 November 2016.

C.  Steps towards Removal

13.  Whilst being the subject of a Removal Order since 13 December 2012 and a Deportation Order since 13 December 2019, the Applicant was granted immigration recognizance most of the time in the past decade and was allowed to live freely in society, subject to the duty regularly to report recognizance to the Director.

14.  On 1 February 2023, the Director decided to cease the Applicant’s recognizance, marking the beginning of the present immigration detention.

15.  As set out in the chronology above, all the Applicant’s NRC and related judicial proceedings had already been put to an end long before he was taken into immigration custody. The only obstacle standing in the way of deportation was his expired Pakistani passport which needed replacement.

16.  Shortly after the Applicant was taken into custody, the Director requested the Consulate General of the Islamic Republic of Pakistan to issue a replacement travel document to the Applicant by letter dated 9 February 2023. I am informed by the Director that the application process was not as smooth as it could have been due to the Applicant’s refusal to cooperate. In particular:

(1)  On 23 February 2023, the Applicant refused to go to the Pakistani Consulate to attend a scheduled interview.

(2)  On 13 March 2023, the Applicant refused to complete any re-entry formalities or to attend the upcoming interview with the Pakistani Consulate.

(3)  On 25 April 2023, the Applicant still refused to attend an interview with the Pakistani Consulate for the purpose of seeking re-entry.

(4)  The Applicant consistently expressed unwillingness to return to Pakistan in the various interviews conducted by the Director.

17.  Despite the lack of cooperation on the Applicant’s part, an emergency travel document was eventually issued to the Applicant on 18 May 2023, owing to the Director’s persistent efforts and the initiative taken to explore with the Pakistani Consulate alternative means, in light of the Applicant’s uncooperative attitude.

18.  The emergency travel document issued on 18 May 2023 was valid until 17 June 2023.

19.  On 8 June 2023, the Director booked a repatriation flight for the Applicant fixed for 14 June 2023. But that repatriation operation was eventually unsuccessful due to the Applicant’s resistance.

20.  On the date of the scheduled flight, the Applicant claimed that he felt unwell, that he could not breathe normally and that he was suffering from skin problem. As a result, he was escorted to the North Lantau Hospital for medical examination by the doctor, who certified the Applicant as fit for detention and disposed of his case by recommending discharge from hospital. By then (5pm as shown in the medical note) it was only 2.5 hours from the scheduled flight (7.30pm) and the Applicant turned emotional. He shouted loudly that he would be in danger upon return to Pakistan. The operation was eventually called off.

21.  On 27 June 2023, the Director procured the extension the Applicant’s emergency travel document to 23 September 2023.

22.  A second repatriation operation has now been put in place, with a ticket purchased for the Applicant for a flight to Pakistan fixed for the day after tomorrow, i.e. 10 August 2023.

D.  Applicable Principles

23.  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 any individual case.

E.  The Applicant’s Submissions

24.  The Applicant exhibited 7 pages of handwritten notes to his supporting affirmation. Besides the regurgitation of general legal principles applicable to habeas corpus applications of this sort, the Applicant submitted the following:

(1)  The Applicant has been in a poor health condition. He has to be at liberty for prompt medical attention. Being detained means that he could not have the prompt medical attention as needed because it takes too long to arrange a detainee to be sent to the hospital.

(2)  He has been suffering from a skin allergy since he was detained in the Castle Peak Bay Immigration Centre. He was admitted to the hospital twice in a month in May 2023. The doctor prescribed that he could not eat chicken or lamb.

(3)  Because of his skin allergy, the other detainees have been keeping distance from him.

(4)  Because of the allergy, he has to eat the same food which is like a mental torture for him.

(5)  The Applicant was ordered by the court to pay a fine in TMFN 102/2022. He cannot pay the fine while detained. When he was brought to the Tuen Mun Court on 11 May 2023, the Judge ordered him to pay the fine after which the Applicant is to be released. But the Director disobeyed the Court order. Rather than releasing him from detention, the Director tried to send him to Pakistan on 14 June 2023.

(6)  He refused to return to Pakistan on 14 June 2023 because his life is still in danger. His family in Pakistan is still in trouble. Those people involved in his case may go to his home and torture his family. He will go back to his country on his own if his problem is solved later.

(7)  The detention conditions in TGCI are poor: (a) he has been eating the same food and is only given an orange every day as fruit; (b) he has to wear electronic tag 24 hours, making it uncomfortable during sleep; (c) there is CCTV everywhere including in the toilet which is in breach of his privacy; (d) drinking water is given in water cans giving rise to questions about the purity of the water; and (e) he is locked in a small space for 23 or more hours per day which has left him with claustrophobia.

(8)  There are two people (presumably Hong Kong residents since their HKID numbers are given) who are willing to stand as his guarantors.

25.  At the oral hearing, the Applicant understood that he need not simply repeat those matters put forward in writing, and said that most of his points had been made in writing. He did, however, seek to emphasise that the Tuen Mun Magistrates’ Court had ordered him to pay a fine – which he said was the sum of $500 due on the 27^th of each month for 21 months – and that he could not pay it or arrange payment of it whilst he remained in detention. On the other hand, if he were to be released from detention, he could arrange for the payment of the fine by asking a friend or friends or family back home to make the payment.

26.  Further, in reply to Mr Lee’s submission – based upon an inquiry made by an immigration officer to a clerk at the Magistrates’ Court – that the Applicant’s physical presence in Hong Kong is not required, and the outstanding payment of fine could be paid either in person, by cheque or by authorising another person to pay on behalf of the Applicant if he is not in Hong Kong, the Applicant said there would remain a problem because, even if he were to authorise someone else to pay the fine instalments, they would not likely continue paying past one or two instalments, so that he (the Applicant) would be stuck again.

27.  The Applicant also suggested that if the Director thinks he has no case, despite his pending “JR 2” (as he put it), he can be given the opportunity to pay the fine instalments by being released.

28.  Lastly, the Applicant sought to emphasise that he had been in Hong Kong for 11 years and had only one conviction, relating to his work, and otherwise had no criminal record.

29.  I will bear all these points in mind in my analysis below as appropriate.

F.  Whether Detention has become unlawful

30.  The Applicant has been detained under section 32(3) which permits the detention of a person against whom a deportation order is in force. The Deportation Order remains extant. There was and remains clear prima facie lawful authority for the detention.

31.  The question therefore arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

32.  I can address the Hardial Singh principles broadly as below. The starting point is that the Applicant has been detained up to today for a period of 189 days or a little over 6 months. It is against that period of time that the other factors are to be weighed and measured.

33.  HS1 and HS4 are clearly satisfied. I have no doubt that the detention power has been used to facilitate deportation. The Director’s diligence in the process was plainly demonstrated in his efforts in obtaining the emergency travel document for the Applicant and the two repatriation operations organized.

34.  As the chronology indicates, the only obstacle standing in the path of removal when the Applicant was taken into custody was his expired passport, which issue was eventually resolved on 18 May 2023. During those 4½ months, it was not unreasonable to expect that a replacement travel document could be issued within a reasonable time given the Director was in active liaison with the Pakistani Consulate. Indeed, had the Applicant chosen to cooperate rather than to obstruct the application process, that travel document might have been issued earlier than 18 May 2023. When complaining about delay, it is unattractive for the Applicant to seek to rely on his own lack of cooperation which contributed to the delay.

35.  There is also strong force in Mr Lee’s argument that the Applicant could have been released from detention at least by 14 June 2023, but for his refusal to cooperate in the first repatriation operation. Against the other facts – including the doctor’s diagnosis, and the Applicant’s shouting loudly after the doctor recommended his discharge – a proper view can be taken that his claimed physical discomfort on the scheduled date of return was but a ploy to frustrate repatriation. Indeed, his own supporting affirmation filed in these proceedings suggests the real reason for his refusal to go along with the repatriation operation was his own unwillingness to return. He was unwilling to return because he claimed that his life would be in danger upon return.

36.  As I have emphasised on numerous occasions, in an application such as the present application, this Court does not and will not determine an applicant’s NRC or whether he should be returned to his home country. Nevertheless, the incident which occurred on 14 June 2023 should serve to highlight the Applicant’s strong reluctance to return and the lengths to which he is prepared to go in order to prevent deportation. This does not inspire confidence that the Applicant would show up at the airport two days from today for his return flight, if he is to be released from detention now.

37.  Therefore, I agree with the Director that there is a real risk of absconding even though the Applicant only failed to report recognizance once in March 2013 (until he was arrested by police a year later in March 2014). Absconding would frustrate the very purpose for which the power of detention is granted.

38.  For the avoidance of doubt, against the Applicant’s conviction record – namely the one offence relating to his working – I placed no particular weight on any suggested risk of re-offending.

39.  As to his skin allergy, the Applicant submitted that the needed prompt medical attention could only be provided to him when he is “at liberty”. I note that that submission does not sit well with the course of action he took on 14 June 2023, which prevented his deportation and thus liberty upon landing in Pakistan. If he considers liberty crucial to his health, he should be more than happy to embrace the second repatriation operation which is only two days’ away.

40.  In any event, I am satisfied that, as Mr Lee submitted, proper medical attention has been provided to him during detention. The sending of the Applicant to the Northern Lautau Hospital on 14 June 2023 was an example.

41.  As to the criminal case of TMFN 102/2022 in which he said he was ordered to pay a fine I am informed by the Director that the fine was imposed as a result of the Applicant’s failure to wear a surgical mask as required by the law at the time. Mr Lee said enquiry has been with the Tuen Mun Magistrates Court and – and as indicated above – the fine could be paid by cheque or by authorising another person on the Applicant’s behalf. It is not necessary for the Applicant to be released from detention to pay the fine. Indeed, it is not even necessary for him to remain in Hong Kong for that purpose, but that is an issue I need not decide today. The existence of the outstanding fine is not an impediment to removal. Nor do I think the Applicant’s argument about being released so that he could arrange for payment is at all convincing. Anyway, the Applicant is due soon to be released from detention (albeit upon repatriation). He will then be reunited with his family, whom he suggested he might ask to help make payment of the fine.

42.  I also agree with Mr Lee that although the conditions of detention and the fact that the Applicant now has procured two guarantors are factors which should be taken into account in assessing the reasonableness and lawfulness of the continued detention, they do not outweigh the factors pointing towards continued detention for two more days, after which the Applicant will be released, albeit in Pakistan, because he should board the flight on 10 August 2023.

43.  Overall, weighing the period of detention – a little over 6 months – against all the other factors including that repatriation is imminent, I am satisfied that HS2 and HS3 are met.

44.  The detention of the Applicant has remained, and will for the foreseeable future remain, lawful.

G.  Result

45.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus with no order as to costs.