ASLAM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1539/2023

[2023] HKCFI 2598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1539 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant has been held in administrative detention, to date for a period of 80 days (around 2½ months). By his application for writ of habeas corpus, he seeks release from detention. However, naming the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) as the respondent to this application reveals one or more of the following flaws: (1) in common with any other similar applicants, the Applicant might mistakenly think that this application permits him to ventilate again his non-refoulement claim (“NRC”); and/or (2) the Applicant might mistakenly think his detention is by the Board; and/or (3) he has simply copied the erroneous heading – as well as other documents – from numerous previous similar applications. In this case, it is probably the latter.

2.  Of course, the Applicant is not detained by the Board, and no matter relating to the merits of his NRC falls for consideration in this application. In fact, the proper respondents to the application should be the Director of Immigration and the Secretary of Security, who between them exercise the relevant statutory powers relating to authorising detention and not releasing on recognizance.

3.  In accordance with my directions, an initial response has been filed for the Director/Secretary, and the matter has been brought to hearing. At the hearing, the Applicant has appeared in person, with the benefit of an Urdu/English interpreter. The Director/Secretary have been represented by Mr Jinson Cheng, Government Counsel, who signed the initial response.

4.  This is my Decision.

B.  Background

B.1  Immigration Status

5.  The Applicant is a Pakistani national, born on 1 August 1978. He claims to have entered Hong Kong illegally on 20 February 2016, the day he was arrested by the Police for being a suspected illegal immigrant.

6.  On 23 February 2016, the Applicant lodged a NRC. On 23 March 2016, he was released on recognizance.

7.  On 18 March 2019, a Removal Order was made against the Applicant, pursuant to section 19 of the Immigration Ordinance Cap 115 (“Ordinance”).

8.  On 7 November 2022, the Applicant was convicted of the offence of ‘taking employment while being a person in respect of whom a removal order is in force’, and he was sentenced to 15 months’ imprisonment. It was upon completion of that sentence, that the Applicant was discharged and the current period of administrative detention commenced on 22 July 2023.

9.  The Applicant was originally detained under section 32(3A) of the Ordinance, but from 28 September 2023 was subsequently detained for enquiry as to whether a deportation order should be made.

10.  The Applicant has no family ties in Hong Kong.

B.2  Applicant’s NRC

11.  On 23 February 2016, the Applicant lodged the NRC on all applicable grounds. On 19 July 2018, the NRC was refused by the director. On 26 March 2020, the Applicant’s appeal/petition was dismissed by the Board.

12.  On 8 April 2020, the Applicant applied to the Court of First Instance (“CFI”) for leave to apply for judicial review, seeking to challenge the decision of the Board. Following requests made on behalf of the Director for priority to be accorded to this application, it will now be heard on 31 October 2023.

13.  It can reasonably be anticipated that a decision will follow within a few weeks. If the application is decided against the Applicant, that will remove any legal impediment to the Applicant’s removal from Hong Kong – as a result of the updated removal policy which took effect from 7 December 2022.

B.3  Efforts towards Removal

14.  Both prior to and during the current detention, the Applicant’s stance towards being deported was sought. He has consistently stated unwillingness to return to his home country.

15.  That unwillingness has been reflected in the Applicant’s refusal to cooperate fully with the re-entry application to, and the interview with, the Consulate General of the Islamic Republic of Pakistan.

16.  However, as a result of the Director’s continuous efforts in pursuing the Consulate, an emergency travel document (“ETD”) has now been issued for the Applicant’s re-entry to Pakistan. The ETD was issued on 14 September 2023, and is valid for 30 days – though it might reasonably be anticipated that its validity would be extended.

B.4  Reviews of Detention

17.  After the issuance of the ETD, the Applicant’s detention was reviewed on 19 September 2023. The Director decided not to release the Applicant on recognizance, on the grounds that: (1) it is believed that the CFI would finalise the outstanding application within a reasonable period time; (2) the Applicant committed an offence whilst on recognizance, leading to the sentence of imprisonment; (3) there is a real risk of reoffending; (4) now that the Applicant has a valid ETD, repatriation could be affected within a reasonably foreseeable time, following removal of any legal impediment to removal.

C.  Applicable Principles

18.  Those principles applicable on an application for writ of habeas corpus in cases with the present context are well-established. They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781. 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.

19.  As always, it is important to remember that the burden is on the respondent to an application for writ of habeas corpus to justify the continued lawfulness of the detention.

D.  Applicant’s Submissions

20.  With his application, the Applicant filed hand-written grounds, which mainly rehearse some of the applicable legal principles (clearly simply copied from various other similar applications). He also made a few points more directly relevant to his own situation, which might be summarised as follows:

(1)  There is insufficient risk to justify the lengthy detention since 22 July 2023.

(2)  The Director cannot identify when removal can actually be effected within a reasonable time. Therefore, the power of detention is not being used for its proper purpose.

(3)  The current period of detention immediately follows the previous period of imprisonment.

(4)  The reviews of detention have failed to take into account that the Applicant has complied with recognizance requirements in the past.

(5)  The ‘tipping point’ has been crossed, so that continued detention is no longer lawful.

(6)  The Applicant does not pose a genuine security risk to the community.

(7)  The Applicant is a single passport holder and has only one conviction of working illegally.

(8)  The Director has been unacceptably slow in dealing with the Applicant’s enquiries about depriving him of his liberty.

(9)  Even after the current application to the CFI is determined, the Applicant still has other proceedings to attempt.

(10)  The conditions of detention cause him trauma, and treat him as a prisoner.

(11)  None of HS1 to HS4 are satisfied on the facts.

21.  At the hearing, the Applicant made further submissions by way of a further written document, which can be summarised as follows:

(1)  The Applicant asked (a) whether it was lawful to detain him from 22 July 2023 to 3 August 2023, when he was issued with the notice of detention, and (b) if lawful detention commenced only on the latter date, how the period of 13 days would be treated.

(2)  As to the lack of family ties in Hong Kong, the Applicant has been living in Hong Kong since 2016 and has gathered friends over that period, who are like family to him and he has a cousin who can act as guarantor of his behaviour were he to be released on recognizance.

(3)  At an interview in December 2022, he was not given an application form to fill in for a Pakistani passport, nor given any consent form to release the Consulate, or asked to sign that he objected to any consent.

(4)  At an interview on 3 August 2023, he merely stated that he did not wish to return to Pakistan and would like to stay in Hong Kong until the result of his judicial review case. He did not object.

(5)  At interviews on 14 and 16 August 2023, the interview was in effect refused by the Applicant because of the absence of an interpreter. There was therefore no possibility that the Applicant refused or objected going back to his home country. It seems the Immigration Department write down whatever they wish to write.

(6)  He has not tried to delay his own removal from Hong Kong, as all along he has wanted to await his judicial review decision.

(7)  He questions whether the proper exercise of powers is conducted when the documents provided show that authority was sought for detention under section 29(1) of the Ordinance for a person with a different name than the Applicant’s name, because that person’s name is to be found in the body of the memorandum seeking authority for detention.

(8)  This might explain the huge difference between the notices of detention given to him on 3 August 2023 and 19 September 2023.

(9)  With all that said, the Applicant asked the court to weigh and balance everything and decide whose credibility is at doubt (the implication being that it is not his credibility which should be doubted).

22.  As to the last points, it seems to me to be clear that there is simply a typographical error in the relevant memorandum. Whilst it is correct that at one part of paragraph 4 of the memorandum there is a reference to a person who is not the Applicant, the same paragraph specifically names the Applicant on two occasions, and refers to a draft authorisation for detention which is entirely about the Applicant. The memorandum as a whole is headed with the Applicant’s name and he is also named in paragraphs 2, 3 and 5 of the memorandum. I do not think the typographical error gives rise to any doubts about the credibility of the officers concerned.

23.  I take those various matters into account, and give them the weight in the balancing exercise as seems to me to be appropriate.

E.  Whether Detention is Lawful

24.  There is clear prima facie lawful authority for the detention of the Applicant throughout the current period of detention, under the various sections of the Ordinance previously identified above. That is so, even if the first notice of detention was provided to the Applicant some days after the current period of detention actually began.

25.  Therefore, the question arises as to whether the overall circumstances of detention have rendered continued detention unreasonable, and hence unlawful. That question requires the assessment in accordance with the Hardial Singh principles, as I shall perform below.

26.  The starting point is the period of detention to date, here 80 days, against which the other factors are to be weighed and balanced.

27.  I accept that the Applicant has been detained for the purpose of his removal from Hong Kong, and that the power of detention is being used only for that purpose. This is evident from the Director’s efforts in seeking an ETD for the Applicant, and in pressing for early resolution of the application made to the CFI. HS1 is satisfied.

28.  Those same points of evidence also identify that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal as soon as possible. The ETD has been obtained, notwithstanding the Applicant’s uncooperative behaviour. HS4 is satisfied.

29.  I give substantial weight to the fact that the Applicant’s refusal to cooperate might unnecessarily lengthen the period of detention. But, that is self-inflicted, and is not a matter of which the Applicant can properly complain. I do not accept the Applicant’s suggestion this morning that it is not clear that he objected to cooperating (though I do accept that he has expressed the wish to await the outcome of the judicial review proceedings before he might actually be returned).

30.  Were the Applicant to have cooperated, removal (and hence release from detention) might occur within a short time after the legal impediment to removal is lifted. Of course, I take into account the overlap in time, because the Applicant’s application for leave to apply for judicial review is yet to be heard and determined. I note that the ETD has now been obtained notwithstanding. But, that does not seem to me significantly to lessen the weight to be given to the Applicant’s own conduct, pursuant to section 32(4A)(d) of the Ordinance.

31.  Now that the application has been fixed to be heard on 31 October 2023, it remains reasonable to believe that it can be determined within a short time thereafter. If the determination is by way of a dismissal, that removes the legal impediment to removal. Though the period of validity of the ETD will expire before the determination of that application, there is no reason to believe that it would not be extended as is appropriate in due course. The process might be quicker if the Applicant were actually to cooperate. Of course, if the judicial review application is allowed by the grant of leave, the question of continued detention will fall to be reassessed in that light.

32.  As to consideration of one of the paramount factors, relating to risk of absconding, there seems to me to be a real and substantial risk of absconding. The Applicant entered Hong Kong illegally, and has limited close connection here (though he has mentioned a group of friends, and a cousin who is a Hong Kong identity card holder, albeit not a HKPR). Instead, the Applicant obtained employment – illegally, leading to his conviction and imprisonment. He has also demonstrated strong resistance to being returned to his home country, including by refusing to cooperate fully in the pre-entry formalities. The risk of absconding is not low, and if absconding were to occur it would defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in this case.

33.  I also agree with Mr Cheng’s submission that there is some risk of re-offending. The previous offence was committed whilst the Applicant was released on recognizance, and whilst he was otherwise pursuing his application for leave to apply for judicial review. A further conviction leading to any term of imprisonment might further delay removal of the Applicant from Hong Kong. Though not of the greatest weight, I take this factor into the balance.

34.  Looking at matters overall, it seems to me that both HS2 and HS3 are satisfied. Balancing the various factors against the period of detention to date, the detention has remained (and will as is reasonably foreseeable continue to remain) reasonable in all the circumstances, and hence lawful.

F.  Result

35.  The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.