IQBAL ASIF v. DIRECTOR OF IMMIGRATION

HCAL 899/2022

[2022] HKCFI 3061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 899 OF 2022

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D E C I S I O N

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A.   Introduction

1.  The Applicant is currently held under immigration detention, pending his removal from Hong Kong pursuant to a Removal Order issued on 14 October 2019.  The authority for detention is found in the power provided by section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”).  The present period of detention commenced on 21 January 2022, and so to date has lasted 259 days, or about 8½ months.

2.  On 8 September 2022, the Applicant applied for writ of habeas corpus.  But the supporting affirmation says the application is made [sic] “against all my non refoulments claims decision given by director of Immigration”.

3.  I gave directions for the matter to come to today’s hearing.  Those directions included for the Respondent (“Director”) to provide an ‘initial response’ to the application, and for the Applicant to have leave to file a reply to that initial response.  The initial response was filed but the Applicant has not filed any reply.

4.  At the hearing, the Applicant has appeared in person (with the benefit of a Punjabi interpreter).  During a break in the hearing taken for that purpose, the interpreter explained the Director’s initial response to him.

5.  The Director has been represented by Mr Benson Cheung, Government Counsel, who was one of those who signed the initial response/skeleton argument (together with Ms Yvonne Cheung, Senior Government Counsel), and on which he placed reliance at the hearing.

6.  This is my Decision.

B.   Background Facts

B.1    Immigration Status

7.  The Applicant is a Pakistani national.  He is an illegal immigrant who was intercepted by Police on 21 July 2011.  On his own account, he entered Hong Kong on 29 June 2011.

8.  As said, he is subject to the Removal Order issued on 14 October 2019.  The Removal Order was issued under section 19(1)(b) of the Ordinance, and it has remained in force throughout.

9.  The power to detain pending removal under such a removal order is to be found in section 32(3A) of the Ordinance, which provides:

A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.

B.2    NRC and JR

10.  The Applicant’s stay in Hong Kong has been tolerated mostly because of his non-refoulement claim (“NRC”) and related court proceedings.

11.  He first expressed his intention to lodge a NRC two days after he was intercepted, i.e. on 23 July 2011.  The NRC related proceedings were only brought to a halt over 10 years later on 14 December 2021, when the Court of First Instance (“CFI”) imposed a Restricted Proceedings Order (“RPO”) which prohibits the Applicant from commencing fresh proceedings related to his NRC without prior leave of the CFI.

12.  During those 10 years, the Applicant first exhausted all administrative avenues by having his NRC rejected by both the Director and the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) on all applicable grounds.  He then attempted to overturn the Board’s refusal by way of judicial review.  He instituted and continued proceedings from the CFI all the way up to the Court of Final Appeal (“CFA”).  On 30 July 2020, the CFA dismissed his application for leave to appeal to the CFA.

13.  On 14 May 2021, he requested to make a subsequent claim (“SC”).  His request was rejected by the Director on 18 August 2021. He then came to the Court again, this time seeking leave to apply for judicial review against the refusal pertaining to the SC.  The leave application was rejected by the Court on 14 December 2021.  It was on that occasion that the Court found it necessary and appropriate also to impose the RPO to prevent further abuse of court proceedings.

14.  By the time the present detention commenced on 14 January 2022 and throughout the entire period of detention, there was and has been no extant NRC or related legal proceedings.  As it now stands, the only outstanding legal action is this habeas corpus application.

B.3    Periods of Detention and Reviews

15.  The Applicant was first subject to immigration detention following his interception by Police on 21 July 2011.  The detention was made under various authority granted by the Ordinance and lasted until 24 August 2011.

16.  He then was released on recognizance for almost a decade during the currency of his NRC related administrative and judicial proceedings, until the recognizance was revoked and the present detention commenced on 14 January 2022.

17.  The Applicant’s detention was reviewed on 1 March 2022, 26 May 2022 and 26 September 2022.  On each occasion, continued detention was recommended.  The grounds given were that: (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he may abscond and/or (re)offend; (c) he does not have close connection or fixed abode in Hong Kong; and (d) there are no other circumstances in favour of the Applicant’s release.

18.  Relevant to the reference of absconding is his past record in failing to report at the airport on the day for his repatriation flight on 20 October 2017.  He resurfaced on 7 November 2017 to tell the ImmD that he had already applied for leave to apply for judicial review the day before.  He also produced a sick leave certificate covering 20 and 21 October 2017 and no explanation was provided for the period from 22 October 2017 to 6 November 2017.

B.4    Steps towards Removal

19.  The Applicant’s passport had already expired when the present detention commenced.

20.  Throughout the present detention period, ImmD had been in active liaison with the Consulate General of the Islamic Republic of Pakistan (“Pakistan CG”) until the latter eventually issued an emergency passport on 9 September 2022, with validity until 8 October 2022.

21.  The progress was not as smooth as it might have been because the Applicant was uncooperative and refused to go through the procedures ordinarily necessary for obtaining a replacement travel document e.g. submitting a re-entry application and attending interview at the Pakistan CG office.  The emergency passport was issued by way of means alternative to the usual or ordinary formalities.

22.  Having obtained the emergency passport, ImmD has arranged for a repatriation flight to Pakistan.  ImmD has already secured a seat on a flight scheduled for tomorrow, 7 October 2022.

C.   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 this case.

24.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objectivereview by the Court.  But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not.  Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

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

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

(HS3) 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; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable.  Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period.  This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful.  Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it.  Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.  The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

D.   Merits of Application

25.  The Removal Order issued against the Applicant is extant.  The detention of the Applicant under section 32(3A) of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending removal.  The question raised by this application is whether the detention has become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

26.  As stated, the Applicant’s application does not itself say why he suggests that his detention is or has become unlawful.  By way of oral submissions today, the Applicant stated simply that (a) he wishes to stay in Hong Kong, (b) he wants the Court’s help for him not to be sent him back to Pakistan; (c) he has been in Hong Kong for 11 years, and has been supported by his friends and has not worked illegally because he is a law-abiding person.

27.  For the Director, Mr Cheung submits that the detention of the Applicant has been reasonable at each stage, and throughout the entire 259 days.  Having carefully considered the circumstances, I agree.

28.  First, the Director does intend to deport the Applicant and is only using the power to detain for that purpose.  Indeed, the Director clearly intends to remove the Applicant as soon as possible.  Throughout the period of the present detention, there has been no legal impediment to the Applicant’s removal.  The Director has been taking active steps to obtain a replacement travel document for the Applicant to enable repatriation and such document has now been obtained (despite the Applicant’s lack of cooperation).  A repatriation flight has been arranged for tomorrow.  HS1 is satisfied.

29.  Secondly, the Director has acted with reasonable diligence and expedition to effect removal, evident by the efforts in obtaining the replacement travel document and the booking of a repatriation flight.  HS4 is satisfied.

30.  Thirdly, there has been no extant NCR or related judicial review proceedings at any point in the present period of detention.  In view of the RPO, the Applicant will not be able to commence any NRC related proceedings without first obtaining leave from the Court.  In the circumstances, and where the Director was actively seeking the issuance of a replacement travel document, the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time.  HS3 is satisfied.

31.  I also agree that there is risk of absconding which would frustrate the purpose for which the power of detention is given. The Applicant is to be repatriated tomorrow.  The Director was entitled to place weight on his previous absconding record and to guard against the risk that he would not show up at the airport tomorrow should he be released on recognizance.  I hold the same view.

32.  Balancing matters overall – and keeping firmly in mind that the period of detention to date is 259 days and a repatriation flight is scheduled for tomorrow – I have no difficulty in concluding that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances.  HS2 is satisfied.

33.  I might add further comments as follows:

(1)  It is somewhat paradoxical for the Applicant to suggest (albeit here only inferentially) that the detention has gone on so long that it has become unreasonable hence unlawful, when it might have ended much earlier had he cooperated in obtaining a travel document, the absence of which was the only thing standing in the way of his removal and thereby the end of his detention.

(2)  An application for writ of habeas corpus is not intended to provide an opportunity to re-argue the NRC or to seek some general indulgence to stay in Hong Kong.

(3)  In a case such as the present case, the central and only question is whether the detained person can lawfully continue to be detained pending – that is, until – his removal from Hong Kong.

(4)  Even if a writ of habeas corpus is granted, that would simply mean that the person would be released on recognizance pending – that is, until – his removal from Hong Kong (or other significant change in circumstances).  It does not mean he will not in due course be removed from Hong Kong.

E.   Result

34.  The Applicant continues to be lawfully detained, pending removal, which will happen tomorrow.  The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

35.  I make no order as to costs.