RASHID ZAFAR GHORI v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 786/2024

[2024] HKCFI 1863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 786 OF 2024

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JUDGMENT

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A.  Introduction

1.  This is the third application for a habeas corpus by the Applicant made on 17 May 2024, seeking release from the custody of the Correctional Services Department.

2.  The first application, made on 27 July 2023, was heard and dismissed by Coleman J on 11 August 2023 (the “1^st Decision”)[1]. The second application, made on 20 December 2023, was heard and dismissed by DHCJ Jonathan Wong on 8 February 2024 (the “2^nd Decision”)[2].

3.  I gratefully adopt the background of the Applicant, including his immigration status, criminal records, history of abscondence, and the steps taken by the Immigration Department (the “Department”) for the Applicant’s removal as set out in paragraphs 5 – 37 of the 1^st Decision and paragraphs 2 – 5 of the 2^nd Decision.

4.  For present purposes, it suffices to note the following points and development since the 2^nd Decision was handed down:

(1)  The Applicant current detention commenced on 5 August 2021 and has continued until now, save for a 1-month interruption when the Applicant served a prison sentence. Hence, he has, up to the date of the hearing, been detained for 1047 days.

(2)  The Applicant is a subject of a Removal Order dated 9 April 2008 and a Deportation Order dated 30 May 2012.

(3)  There had been a total of 7 deportation attempts by the Department, which were all frustrated due to strong resistance and un-cooperativeness from the Applicant. The 1^st removal attempt was back in 2012.

(4)  The Applicant has clearly utilized applications for non-refoulment claims (“NRC”) to create impediment to his removal.

B.  Non-refoulement claims - Delaying Tactics

5.  A summary of the history of the Applicant’s NRC produced by Ms Crystal Wong, Government Counsel for the Respondents is reproduced herein:

Asylum Claim
23 January 2007	The Applicant made a request for asylum with the United Nations High Commissioner for Refugees (“UNHCR”) office in Hong Kong.
30 November 2007	The asylum application with UNHCR was closed.
NRC (before United Screening Mechanism)
19 June 2007	The Applicant lodged a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Claim”).
16 March 2011	The Torture Claim was rejected.
21 October 2011	The Applicant submitted a late petition to the petition team of the Security Bureau (“Petition Team”).
10 November 2011	By way of a letter, the Petition team informed the Applicant that his out of time petition was not proceeded with.
NRC (under United Screening Mechanism)
18 January 2013 and 6 March 2013	By way of letters, the Applicant indicated his intention to seek non-refoulement protection on grounds of the risk of Cruel, Inhuman, Degrading Treatment or Punishment.
17 December 2016	The Applicant failed to comply with the given deadline to complete and return the required application form and thus the Applicant’s NRC was treated as having been withdrawn.
6 January 2017	A letter was sent to the Applicant informing him that on 28 December 2016 the Department received his completed Supplementary Claim Form (“SCF”) with incorrect recipient “Torture Claims Appeal Board/Non-refoulement Claims Petition Office” (“Board”), which was received by the Board on 22 December 2016 and subsequently forwarded to the Department. The Applicant was told that the submission time limit of SCF was lapsed and informed of the procedures to reopen his case.
7 October 2021	More than 4.5 years after, the Applicant made a request in writing to re-open his NRC.
26 November 2021	The Applicant’s request to re-open his NRC was rejected by the Department.
6 December 2021	The Applicant filed a petition to the Board.
23 June 2022 and 4 July 2022	The Applicant requested to withdraw and close his case on the basis that he wished to return to his home country.
8 July 2022	His petition was treated as “withdrawn” by the Board.
28 February 2023	The Applicant filed an application for leave to apply for judicial review (“Leave Application”) against the Board’s Decision under case number HCAL 313/2023.
24 August 2023	By a Form CALL-1, Deputy High Court Judge Bruno Chan dismissed the Applicant’s Leave Application and extension of time to apply for Leave Application.
Subsequent Claim Request
26 September 2023	The Applicant requested to make a Subsequent Claim with the Department.
20 December 2023	It was decided that the Applicant may make a Subsequent Claim, to be processed in accordance with section 37ZP of the Ordinance.
6 February 2024	By a Notice of Decision, the Applicant’s Subsequent Claim was rejected by the Director of Immigration (the “Director”) on all applicable grounds (the “Director’s Decision”).
Appeal against the Decision
19 February 2024	The Applicant filed a Notice of Appeal/Petition to the Board against the Director’s Decision (“Appeal”).
27 March 2024	The Applicant sent a letter to the Board for an adjournment of the hearing as he intended to apply for legal aid.
2 April 2024	The Board directed that the oral hearing would proceed as scheduled on 22 April 2024.
22 April 2024	By a letter, the Board directed that the hearing on 22 April 2024 be adjourned part-heard to 22 August 2024 for the Applicant’s application for legal aid and collection of evidence from his risk country.
3 May 2024	The Director sent a letter to the Board for an earlier schedule of the hearing date.
7 May 2024	The Board directed that the hearing be resumed on 17 May 2024.
21 May 2024	The Board dismissed the Appeal and confirmed the Director’s Decision.

6.  Ms Wong submitted that from the above history, the Applicant’s blatant attempt to frustrate the Department’s repatriation exercise by prolonging his NRC can be seen:

(1)  The Applicant failed to prosecute his NRC in 2007 and 2011 by letting them lapse due to inaction on his part.

(2)  For his intended applications in 2013, the Applicant failed to comply with the given deadline to complete and return the required application form and thus the Applicant’s NRC was treated as having been withdrawn.

(3)  The Applicant disregarded the deadlines and the Board’s directions, and failed to comply with the procedures and on his own volition on 23 June 2022 withdrew his petition to the Board against the Department’s rejection of his re-opening request.

(4)  At the hearing for the Applicant’s first habeas corpus application on 11 August 2023, the legal impediment to his deportation was his Leave Application in HCAL 313/2023. On 24 August 2023, the Applicant’s Leave Application was dismissed by the Court of First Instance (“CFI”). The Department promptly arranged for the Applicant’s repatriation which was scheduled on 13 September 2023. Unfortunately, this 7^th repatriation attempt was called off given the Applicant’s uncooperativeness and strong resistance, and his claims that he had multiple health issues and requested for medical treatment, for which he was eventually sent to the North Lantau Hospital. He was subsequently discharged from hospital on the same day. On 26 September 2023, 13 days after the Applicant frustrated the 7^th repatriation attempt, he requested to make the Subsequent Claim.

(5)  The Applicant attempted to further prolong his NRC proceedings by seeking an adjournment of hearing on 27 March 2024 for his claimed intention of a legal aid application and allegedly waiting for some evidence pending collection from his country. However, the Applicant had lodged his asylum claim back in 2007, more than 16 years ago. He could have collected evidence if he ever had the intention to do so. Had he pursued his claim diligently, his claim would have been assessed, determined and concluded long time ago.

7.  I agree with Ms Wong’s submissions that the Applicant’s NRC lack conviction and are clearly one of the tools to prolong and prevent repatriation.

C.  Criminal record, previous detention and absconding record

8.  The Applicant’s criminal and absconding records are set out in paragraphs 19 – 26 of the 1^st Decision. It suffices to say that since the Applicant’s unlawful entry to Hong Kong, he had been arrested by the Police on 14 occasions for suspected criminal activities and once as a wanted person after abscondence. He had served 7 imprisonment sentences, ranging from 2 weeks to 18 months for conviction of various criminal offences. The Applicant is a repeated offender and he committed various crimes (many of them are of violent nature) each time after he was released on recognizance.

9.  The Applicant had failed to report recognizance on two occasions and had jumped police bail/court bail on two occasions. No justified reasons have been provided by the Applicant for the failure to report police/court bail and failure to report recognizance to the Department.

D.  Removal Efforts

10.  Apart from the efforts as set out in paragraphs 29 – 37 of the 1^st Decision and paragraph 4 of the 2^nd Decision, the validity of the travel document has now been extended to 1 August 2024 and a repatriation flight has been arranged for 19 July 2024, 4 days after the hearing.

E.  Update since dismissal of 2^nd Decision

11.  Since the dismissal of last habeas corpus application, the Department had conducted 9 interviews with the Applicant, who had repeatedly stressed that he was unwilling to return to Pakistan and stressed that he would not cooperate with removal arrangements.

F.  Applicable Principles

12.  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.

13.  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

14.  The Applicant has set out the following in his affirmation:

(1)  Removal is not possible within a reasonable time.

(2)  Passages in Halsbury’s Laws of Hong Kong in relation to principles of granting habeas corpus.

(3)  He has 3 sons born in Hong Kong. His sons are now with the Social Welfare Department. If he can obtain custody for the children, he would willingly return to Pakistan together with them. He needs to be freed to conduct DNA testing to prove paternity.

(4)  He has a wife in Hong Kong who has leukaemia.

(5)  The Director has failed to conduct regular reviews of detention.

(6)  He has already served sentences for his crimes.

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

(1)  He is seriously ill and has heart problems.

(2)  He did not have with him the documents in relation to his judicial review application as he came to court directly from hospital.

(3)  The long period of detention is affecting his life and his family’s lives.

(4)  He wishes to be treated fairly.

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

H.  Lawful Authority for Detention?

17.  The Removal Order and the Deportation Order were issued on 9 April 2008 and 30 May 2012 respectively and remain valid.

18.  The period of detention and the corresponding authority are set out hereinbelow:

(1)  5 August 2021 to 16 May 2022: section 32(3) of the Immigration Ordinance (the “Ordinance”).

(2)  17 May 2022 to 16 June 2022: period of imprisonment.

(3)  16 June 2022 to 20 December 2023: section 32(3) of the Ordinance.

(4)  20 December 2023 to 20 May 2024: section 37ZK of the Ordinance.

(5)  21 May 2024 to present: section 32(3) of the Ordinance.

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

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

I.  Whether Detention has become unlawful

21.  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 for Security (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”).

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

HS1

23.  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

24.  The starting point is the length of the detention – 1047 days – against which all the other factors must be weighed and balanced.

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

(1)  There can be no doubt that the period of detention is very long. However, the majority of such period cannot be attributed to a lack of diligence on the part of the Applicant:

(a)  As shown in paragraphs 5 – 7 hereinabove, the Applicant has clearly utilised his NRC as a tool to delay his repatriation. He had time and again missed deadlines for the submission of documents, leading to his NRC being treated as withdrawn.

(b)  The Applicant had all along resisted to co-operate with re-entry formalities.

(c)  After finally having obtained a travel document from the Consulate General of Pakistan, the validity of such travel document had to be extended for 8 times due to the Applicant’s refusal to be removed.

(d)  Repatriation attempts had been frustrated for 7 times on 8 June 2012, 20 July 2012, 14 September 2012, 12 November 2012, 4 January 2013, 13 February 2023 and 13 September 2023 respectively, all due to the Applicant’s own doing, in refusing to be repatriated.

(e)  Had the Applicant cooperated, he would have been released from detention already years ago in 2012 to return to Pakistan.

(2)  In Johnson Benjamin v Director of Immigration & Secretary for Security[3], the Court of Appeal observed at §29(3) that:-

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

(3)  As such, the Applicant’s own actions leading to his continual detention will not be counted as an unreasonable period of detention.

(4)  A removal flight has been arranged for 19 July 2024, 4 days after the hearing. The Applicant can thus be removed shortly.

(5)  The Applicant’s history of abscondence, together with the Applicant’s clear attitude that he is unwilling to be repatriated indicate a real risk of abscondence.

(6)  The risk 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[4].

(7)  The Applicant’s allegations that he has a wife, and 3 children in Hong Kong is not supported by evidence. The Department had tried multiple times to contact the alleged wife and children have all failed. In particular, the information provided by the Applicant on 28 March 2024 of his alleged wife and 3 children which could not be verified. The reply letters from the Social Welfare Department (“SWD”) dated 30 October 2023 and 2 April 2024 clearly indicated that SWD had no record of his alleged family members. In any event, the wife and the 3 children are said to be on recognizance. They would also be eventually removed from Hong Kong if their non-refoulement claims are not successful.

(8)  Although the Applicant has medical conditions, it is clear that he is receiving medical attention.

(9)  Overall, weighing the period of detention – around 1047 days – against all the other factors, noting especially the fact that the majority of the period of detention is created by the Applicant refusal to co-operate with repatriation efforts, I am satisfied that HS2 and HS3 are met.

HS4

26.  I am satisfied that HS4 is satisfied as shown in the efforts undertaken by the Department as set out in paragraphs 27 – 37 of the 1^st Decision, paragraph 4.1 of the 2^nd Decision and paragraph 10 hereinabove, I am thus of the view that the Director had diligently pursued the Applicant’s deportation.

27.  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

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