AHMED ALI v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 593/2024

[2024] HKCFI 1605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 593 OF 2024

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J U D G M E N T

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A.  Application

1.  By an ex parte application dated 12 April 2024, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

B.  Background of Applicant

2.  The Applicant is a Pakistani national born in 1988 who entered Hong Kong illegally on 13 August 2009 under another identity (being Umar Asghar BUTT) (“Previous Identity”) and was arrested for remaining in Hong Kong illegally on the same day. The Applicant was released on recognizance on 21 August 2009. The Applicant was convicted on 15 February 2012 and 6 June 2012 respectively and was sentenced. Upon discharge from prison on 6 July 2012, the Applicant was transferred to the Immigration Department (the “Department”) for detention. He was released on recognizance on 27 July 2012. On 1 August 2012, the Applicant was arrested for “remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”. On 3 August 2012, the Applicant was released on Court bail. The Applicant had absconded since 7 September 2012 and there is no movement record of the Applicant’s departure from Hong Kong subsequent to his illegal entry on 13 August 2009 under his Previous Identity.

3.  On 25 November 2012, the Applicant solemnized a marriage with a Hong Kong permanent resident (the “Wife”) under the identity of “AHMED Ali” (“Current Identity”) in Pakistan.

4.  On 8 May 2019, the Applicant arrived in Hong Kong on the strength of his Pakistani passport under the Current Identity with validity till 31 March 2023 and was permitted to remain as a dependant of the Wife (upon approval of his third application for entry for residence[1]). After entering Hong Kong, the Applicant’s limit of stay was last extended until 28 February 2023. The Applicant had overstayed since 1 March 2023.

5.  On 17 April 2022, the Applicant was arrested for “possession of a dangerous drug”, to which he was convicted on 23 June 2022. Upon arrest, a record check revealed that the Applicant had previously entered Hong Kong illegally under his Previous Identity. The Applicant claimed in his written submission dated 7 July 2023 that the Current Identity is his true identity. On 19 September 2023, the local Consulate General of the Islamic Republic of Pakistan (the “Consulate”) confirmed that the Applicant’s name was “AHMED Ali”, i.e. the Current Identity. The Consulate further confirmed on 2 January 2024 and 15 February 2024 that the Applicant was formerly named under his Previous Identity and subsequently changed his name to his Current Identity.

6.  On 29 April 2022, since a warrant of arrest was previously issued against the Applicant under his Previous Identity, he was brought up to court for warrant execution.

7.  On 21 March 2023, while serving his prison sentence, the Department informed the Applicant of an intended deportation against him and served on him a “Notice of Consideration of Deportation”. The Applicant objected to the intended deportation on the ground that his family members (the Wife and his son (the “Son”)) are living in Hong Kong.

8.  On 5 August 2023, The Applicant was discharged from prison and was detained under section 32(2A)(a) of the Immigration Ordinance (“Ordinance”) in order to consider whether or not a removal order should be made.

9.  On 30 August 2023, a removal order (the “Removal Order”) was issued against the Applicant under his Current Identity. No appeal was lodged by the Applicant against the Removal Order.

10.  On 27 February 2024, the Permanent Secretary for Security (the “Secretary”), acting under the delegated authority of the Chief Executive, made a deportation order (the “Deportation Order”) against the Applicant under section 20(1)(a) of the Ordinance.

11.  At the time of the hearing, the Applicant has been detained for 313 days.

C.  NRC related proceedings

12.  On 16 August 2009, the Applicant (under his Previous Identity) lodged a claim under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment with the Department.

13.  On 27 January 2016, the Applicant’s torture claim, which was treated as a non-refoulement claim (“NRC”), was classified as “No Further Action” as the Applicant had absconded since 2012.

14.  Only prior to his release from the prison on 7 July 2023 did the Applicant request to apply for a subsequent NRC on the same previous ground that his life was threatened by an enemy who allegedly killed his father.

15.  On 1 August 2023, the Applicant’s request for making a subsequent NRC was allowed. On 29 August 2023, the Applicant’s subsequent NRC was withdrawn.

16.  On 21 March 2024, by a Notice of Application for Leave to Apply for Judicial Review (the “Leave Application”), the Applicant seeks leave to apply for judicial review against the decision of the Secretary to issue the Deportation Order against him.

17.  The Leave Application was refused by the Court of First Instance on 7 June 2024 (the “JR Decision”).

18.  According to the updated removal policy of the Department since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

19.  As the Leave Application has been refused, there is no longer any legal impediment to the Applicant’s removal.

D.  Criminal Record & Sentencing and Abscondence Record

20.  On 7 September 2012, the Applicant failed to report immigration recognizance and had absconded since then. On 5 November 2012, he failed to appear at the Magistrates’ Court for the charge of illegal remaining and a warrant of arrest was issued against him.

21.  The Applicant’s criminal and sentencing records are as follows:

1^st Entry under Previous Identity

Date of Conviction	Offence	Sentence
15 February 2012	Possession of Dangerous Drug	4 weeks’ imprisonment (suspended for 12 months and fined $3,000)
6 June 2012	Possession of Dangerous Drug	4 weeks’ imprisonment
	Breach of suspended sentence	4 weeks’ imprisonment (run concurrently with above)

2^nd Entry under Current Identity

Date of Conviction	Offence	Sentence
23 June 2022	Possession of Dangerous Drug	One month’s imprisonment (suspended for 24 months)
30 September 2022	Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong	14 months’ imprisonment
	Failing to surrender to custody as appointed by a court	6 weeks’ imprisonment

E.  Steps towards Removal

22.  The Applicant’s passport had expired on 31 March 2023. The Department had since before the current detention, been liaising with the Consulate and requested for assistance. On 12 June 2023, a letter enclosing the Applicant’s expired passport was sent to the Consulate by the Department so as to facilitate his repatriation.

23.  On 8 August 2023, the Department conducted an interview with the Applicant, during which he objected to his removal and stated that he had applied for NRC and was waiting for the result.

24.  On 17 August 2023, the Department conducted an interview with the Applicant, during which the Applicant expressed strong unwillingness to return to Pakistan.

25.  On 31 August 2023, the Department conducted an interview with the Applicant, during which the Applicant expressed unwillingness to return to Pakistan. However, the Applicant was willing to cooperate with the re-entry application formalities, including compiling the re-entry application form, taking photos and attending an interview with the Consulate.

26.  On 6 September 2023, the Applicant attended an interview with the Consulate.

27.  On 13 September 2023, the Department conducted an interview with the Applicant, during which the Applicant explicitly stated that he refused to return to Pakistan. However, re-entry application form and photos of the Applicant were secured.

28.  On 18 September 2023, the Applicant’s application form and photos for replacement travel document were submitted to the Consulate, and the Consulate stated that the re-entry application was under processing.

29.  On 19 September 2023, the Consulate, by a letter, confirmed that the Applicant’s name was “AHMED Ali”, i.e. the Current Identity.

30.  On 21 September 2023, the Department conducted a phone interview with the Applicant, during which the Applicant expressed unwillingness to return to Pakistan and stated that the Wife would like to be contacted for case enquiry. On 25 September 2023, the Department contacted the Wife by telephone, during which the Wife claimed that she was considering applying for a dependant visa for the Applicant and would inform the Department once an application was made.

31.  On 4 October 2023, the Department conducted a phone interview with the Applicant, during which the Applicant expressed unwillingness to return to Pakistan and stated that the Wife would like to be contacted for case enquiry. On the same day, the Wife informed the Department that the Applicant was prepared to re-open his NRC, and she would like to stand as the Applicant’s guarantor if the Applicant could be released on recognizance.

32.  On 16 October 2023, upon following up with the Applicant’s re-entry application, the Department was informed that the verification of the Applicant’s identity was under processing by the Pakistan authorities, and the result of his re-entry application was pending.

33.  On 19 October 2023, the Department conducted a video interview with the Applicant, during which the Applicant explicitly stated that he refused to return to Pakistan. On the same day, an emergency travel document in the name of the Applicant’s Previous Identity, valid for 30 days, was issued to the Applicant by the Consulate. Such emergency travel document was subsequently amended by hand to “AHMED ALI” by the Consulate on 26 October 2023.

34.  On 9 November 2023, the Department conducted a phone interview with the Applicant, during which the Applicant expressed unwillingness to return to Pakistan and requested to be released on recognizance to take care of the Wife and the Son.

35.  On 28 December 2023, the Department conducted an interview with the Applicant, during which the Applicant reiterated that he adamantly refused to return to Pakistan and would not cooperate with any immigration removal arrangement.

36.  On 17 January 2024, the Director of Immigration (the Director”) liaised with the Consulate regarding the extension of the validity of the replacement travel document, the Consulate confirmed that it would take about 2 weeks to process an application for the extension of validity of such replacement travel document.

37.  On 7 February 2024, the Department conducted an interview with the Applicant, during which he was requested to provide further representations on the intended deportation. In response, the Applicant stated that he objected to being deported and he did not want to go back to Pakistan. The Applicant also provided information regarding his local connection and requested the Director to contact the Wife regarding his deportation.

38.  On 9 February 2024, the Department conducted a phone interview with the Wife, who verbally raised objection against the Applicant’s deportation, but she stated that she would not provide any written representations. The Wife, amongst others, also requested that the Applicant be allowed to stay in Hong Kong with her and the Son. On the same day, the Department also conducted a phone interview with the Applicant, during which the Applicant expressed unwillingness to return to Pakistan and requested to be released on recognizance.

39.  On 15 February 2024, the Wife, together with the Son, approached the Department and submitted a letter, in which, amongst others, she requested the Applicant to be released on recognizance and be allowed to stay in Hong Kong. She also stated in the letter that if the Applicant was not allowed to stay in Hong Kong, she would leave the Applicant and divorce him.

40.  On 13 March 2024, the Department conducted an interview with the Applicant, during which the Applicant reiterated his stance that he adamantly refused to return to Pakistan.

41.  On 20, 27 March and 17 April 2024, the Department conducted a phone interview with the Applicant, during which the Applicant expressed unwillingness to return to Pakistan and requested to be released on recognizance. The Applicant also refused to cooperate with the re-entry seeking formalities.

42.  On 19 April 2024, the validity of the Applicant’s emergency travel document was extended till 19 July 2024, and the emergency travel document was collected from the Consulate.

43.  A removal flight has been arranged for 19 June 2024, 7 days after the hearing.

F.  Applicable Principles

44.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

45.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

46.  The Applicant has set out his grounds for application in his affirmation dated 11 April 2024 and letter dated 31 May 2024. In summary, they are as follows:

(1)  The Applicant has quoted principles of law in relation to habeas corpus.

(2)  The Wife and the Son currently depend on social welfare as the Wife needs to take care of the Son and cannot go to work.

(3)  He does not wish to leave the Wife and the Son in Hong Kong and be deported back to Pakistan.

47.  At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1)  His son will suffer immensely for the crimes he did.

(2)  He knows of others who had been released even though they had committed more serious crimes.

(3)  He has a right to appeal against the JR Decision.

48.  I shall bear these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

49.  The Removal Order and Deportation Order were issued on 30 August 2023 and 27 February 2024 and remain valid. The Applicant has been detained under:

(1)  Section 32(2A)(a) of the Ordinance (from 5 August 2023 to 5 August 2023) (1 day);

(2)  Section 37ZK of the Ordinance (from 5 August 2023 to 29 August 2023, exclusive of 5 August and 29 August 2023 to avoid double calculation) (23 days);

(3)  Section 32(2A)(a) of the Ordinance (from 29 August 2023 to 29 August 2023) (1 day);

(4)  Section 32(3A) of the Ordinance (from 30 August 2023 to 7 February 2024) (162 days);

(5)  Section 29(1) of the Ordinance (from 7 February 2024 to 20 February 2024, exclusive of 7 February 2024 to avoid double calculation) (13 days);

(6)  Section 29(2) of the Ordinance (from 21 February 2024 to 27 February 2024) (7 days);

(7)  Section 32(3) of the Ordinance (from 27 February 2024 to 12 June 2024, exclusive of 27 February 2024 to avoid double calculation) (106 days);

which in total will be a period of 313 days (around 10.5 months) up to the time of the hearing.

50.  Thus, there was and remains clear prima facie lawful authority for the detention.

51.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

I.  Whether Detention has become unlawful

52.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(1)  The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

53.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

54.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

55.  The starting point is the length of the detention – about 10 months (313 days) – against which all the other factors must be weighed and balanced.

56.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1)  There is no dispute that from August 2023 onwards, the Applicant has indicated unwillingness to return to Pakistan.

(2)  If the Applicant was willing to be removed, it was possible for him to have been released and removed in November 2023, shortly after his emergency travel document has been issued.

(3)  While the Applicant has arrived in Hong Kong using his Current Identity since 2019, he only raised the request for making a subsequent NRC prior to his discharge from the prison in 2023. The subsequent NRC only reiterated the same ground he put forward in 2009, which was not proceeded with due to his disappearance. In any event, the subsequent NRC was once again withdrawn by the Applicant. I agree that this was a tactical ploy made by the Applicant to create an obstacle to removal. The Applicant’s tactical ploy, coupled with his unwillingness to be removed, had led to the extra time required for the Department officers to repeatedly interview him. It lies ill in the Applicant’s mouth to complain that the detention period was unreasonable. The length of the current detention was at least partly attributable to the Applicant’s refusal to be removed.

(4)  With the validity of the emergency travel document extended, a flight for removal has been arranged for 19 June 2024.

(5)  Although the Applicant has a wife and a son who are permanent residents of Hong Kong, the Wife has indicated in her letter to the Department dated 15 February 2024 that she would leave the Applicant and divorce him if the Applicant was not allowed to stay in Hong Kong.

(6)  I agree with Ms Liu that the fact that the Applicant was able to depart Hong Kong under his Previous Identity and return to Hong Kong under the Current Identity, it is evident that the Applicant has means to interchange between different identities and flee Hong Kong without using proper legal channels. The Applicant’s history and mode of abscondence, together with the Applicant’s clear attitude that he is unwilling to be repatriated (as expressed at the hearing) indicate a real risk of abscondence. The risk is further increased as the there is no further legal impediment nor obstacle to his removal, now that the emergency travel document is ready.

(7)  The risks of abscondence is of critical and paramount importance in the assessment of the lawfulness of detention. As recognised by the Court of Appeal, if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred[2].

(8)  The Applicant has no right to stay in Hong Kong. The Department has already taken into account the fact that he has a wife and a son here when issuing the Deportation Order. The challenge to the issue of the Deportation Order was not successful. The Applicant has misunderstood that this court has the power to reverse the JR Decision.

(9)  Each case must be decided on its own facts. Overall, weighing the period of detention – around 10 months – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

57.  I am satisfied that HS4 is satisfied for the following reasons:

(1)  The Director had all along, even before the commencement of the Applicant’s detention on 5 August 2023, sought the assistance of the Consulate to issue the Applicant with a travel document upon discovering that his passport had expired.

(2)  I am of the view that the Director had diligently pursued the Applicant’s deportation as set out in paragraphs 22 – 43 above.

58.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J.  Result

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