RASHID ZAFAR GHORI v. HONG KONG SAR GOVERNMENT

HCAL 2299/2023

[2024] HKCFI 477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2299 OF 2023

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BETWEEN

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DECISION

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1.   Introduction

1.1  The Applicant is the subject of a Removal Order dated 9 April 2008 and a Deportation Order dated 30 May 2012. He was taken into immigration detention on 5 August 2021 until 17 May 2022, when the detention was interrupted by one month’s imprisonment after which the detention was resumed on 16 June 2022 and has continued until now. To the date of this hearing, the detention has lasted 889 days.

1.2  This is the second application, made on 20 December 2023, for a habeas corpus by the Applicant to obtain his release from detention. The first application, made on 27 July 2023, was heard and dismissed by Coleman J on 11 August 2023 (“Decision”)^[1].

1.3  At the hearing, the Applicant appeared in person, with the benefit of an interpreter. The Applicant only named the Secretary for Security (“Secretary”) as the Respondent. Ms Crystal Wong, Government Counsel, clarified that the Director of Immigration (“Director”) is also a relevant party, and her submissions were filed, and she appeared, for both the Director and the Secretary. I proceed on that basis.

1.4  It is plain from the Applicant’s written materials, and the Applicant confirmed at the hearing, that the factual matters set out in the Decision are largely not disputed. The factual matters will be analyzed afresh, in the light of the now lengthier period of detention, together with the developments which took place since the Decision.

2.   Immigration Status

2.1  The Applicant’s Immigration has been set out at Sections B and D1 of the Decision.

2.2  By way of update:

(1) HCAL 313/2023 (referred to at Decision §§17 and 29-31) was dismissed on 24 August 2023, just short of 2 weeks after the hearing before Coleman J;

(2) at Decision §7, reference was made to the fact that there were 6 attempts to deport the Applicant. Following the dismissal of HCAL 313/2023, the 7^th attempt to remove the Applicant was scheduled to take place on 13 September 2023 but it was unsuccessful given the Applicant’s lack of cooperation and strong resistance;

(3) shortly thereafter, on 26 September 2023, the Applicant requested to make a subsequent claim (“Subsequent Claim”);

(4) on 20 December 2023, it was decided that Subsequent Claim would be allowed to proceed and be processed under section 37ZP of the Immigration Ordinance (“Ordinance”);

(5) prior to 20 December 2023, the Applicant was detained pursuant to section 32(3) of the Ordinance pending his removal, and following the Subsequent Claim, the Applicant has since 20 December 2023 been detained under section 37ZK pending determination of the Subsequent Claim;

(6) at the hearing I was told that the Director had rejected the Subsequent Claim on 6 February 2024 (“6/2/24 Rejection”).

3.   Criminal record, previous detention and absconding record

3.1  The Applicant’s criminal and absconding records are set out at Section C of the Decision.

4.   Practical impediment: Applicant’s travel document

4.1  The efforts to secure a travel document are set out at Section D2 of the Decision. As noted at §36, the Applicant’s travel document expired on 13 October 2023 and is required to be renewed due to the unsuccessful 7^th attempt to remove him on 13 September 2023. I am told that the validity of the travel document may be extended by the Consulate General of Pakistan upon the Director’s request with lead time of about 1 to 2 weeks. At the hearing, I was informed that the validity of the travel document has since been extended to 30 April 2024.

5.   The current detention and its reviews

5.1  Throughout the current detention, the Application has all along expressed his unwillingness to return to his home country and refused to render cooperation in completing the re-entry formalities. In particular, since the hearing before Coleman J, a total of 8 interviews were conducted with the Applicant, at which he repeatedly expressed his unwillingness to return to his home country and stressed that he would not cooperate with any removal arrangement.

5.2  Notice of the latest review of his detention (conducted on 10 January 2024) was given to the Applicant on 16 January 2024. Release on recognizance was not granted on the following broad grounds: (1) the Subsequent Claim could be determined within a reasonable time in the foreseeable future, (2) the Applicant poses or is likely to pose a threat or security risk to the community, (3) the Applicant may abscond or reoffend and (4) there are no justifying circumstances in favour of his release.

5.3  In relation to the Subsequent Claim, a screening interview was scheduled on 31 January 2024[2] and it was expected a determination will be forthcoming shortly thereafter. As noted above, the Director issued the 6/2/24 Rejection, no doubt having afforded the Subsequent Claim the necessary priority. I should make it clear that the 6/2/24 Rejection, although rendered swiftly after the screening interview, is a detailed document. I further note that the position taken by the Applicant in the Subsequent Claim was for the submissions made in his previous claims to be ignored and his Subsequent Claim was based simply on the materials submitted on 17 January 2024.

6.   The applicable principles

6.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781. I have in particular borne in mind the summary set out at §164 thereof.

6.2  I remind myself that the burden is on the respondent to an application for a writ of habeas corpus to justify the lawfulness of the applicant’s detention.

6.3  Further, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

6.4  The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

6.5  Under section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community and (3) factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

6.6  In the circumstances of the present case, it is also apt to refer to Bains Charanjit v Hong Kong SAR Government & Anor [2022] HKCFI 3772. In Bains, the applicant had been detained for 679 days at the time of the hearing and much of the prolonged period of detention was caused by the applicant's delay in pursuing his NRC. At §§42 and 43, Coleman J said:

“[42] Now that the Board's fresh consideration of the Applicant's NRC has been fixed for hearing on 29 December 2022 (just 10 days after the hearing of this application), I agree that it can be said that the Applicant can be removed within a reasonable period of time. The consideration is affected by the history, where the Applicant was granted leave to apply for JR on 23 June 2020, but took no steps to issue the originating summons until apparently triggered by the DOJ's warning letter in September 2021, and even then the originating summons itself was not issued until June 2022. That delay must be down to the Applicant. Thereafter, the DOJ actively sought to resolve that originating summons by a consent order, and the Director has subsequently urged the Board to expedite dealing with matters involving the Applicant. It can be expected - not least with further encouragement for expedition - that the Board will determine the Applicant's appeal/petition within say two or three months after the hearing.

[43] As to what will happen after the Board's decision, it is inappropriate to speculate. I note that the Applicant has suggested that there is bound to be some protracted legal proceedings, but it is premature to say so without seeing the Board's decision and the reasoned basis for it.”

6.7  Whilst I accept that each case must be decided on its own facts, the Court of Appeal has recently provided some guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368. On the issues of an applicant's delay in pursuing extant legal proceedings, Au JA said:

“[25] On the other hand, as mentioned above, the Judge rightly found that the applicant by his own conducts had not pursued with any reasonable diligence his NRC for a long period of time. By the time when he eventually seriously pursued it in December 2021 (just before he was to be released from prison), it was already 10 years since the applicant first lodged the NRC.

[26] In this respect, it is also important to note that the Judge further rightly observed and accepted at [70] and [71] of the Written Judgment that (a) the equivocation of the applicant had significantly contributed to the significant delay in the determination of his NRC, and (b) had the applicant chosen to pursue his case with some diligence, his NRC might have been resolved long before February 2022, when the immigration detention commenced.

[29] Once considered against these primary findings of facts and observations, in our view, it was not sensibly open to the Judge to conclude, after weighing all the relevant factors as he did, that the relevant immigration detention had become unreasonably long and thus unlawful:

(1) It is plain that the relevant relatively lengthy period of immigration detention is substantially caused and necessitated by the applicant's own unreasonable conduct and acts in significantly delaying the disposal of his NRC. In other words, had he pursued his NRC reasonably diligently, as he ought to have, he would most likely have been ready to be removed expeditiously upon his release from prison. As stated by the Judge at [31] of the Written Judgment, the Liberian Embassy would be able to issue the applicant the replacement passport in 2 weeks once all the formalities have been completed, and in fact, it was the applicant's own case that he would be able to obtain the replacement passport even quicker. In the premises, the applicant's further frustration of the replacement of his passport has therefore further compounded the delaying effect caused by his unreasonable conduct in his pursuit of the NRC.

(2) In the circumstances, the Judge's emphasis on the relatively long period of the detention in the present case as the starting and in effect the tipping point to show that the detention had become unreasonably excessive simply cannot be right.

(3) 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.” (emphasis added)

7.   The Applicant’s submissions

7.1  The Applicant’s submissions as set out in his written materials contain lengthy recitation of cases without addressing how they should be applied to the facts of his peculiar circumstances. On the factual matters, it seems to me that they may be summarized as follows (which summary was confirmed by the Applicant at the hearing):

(1) He has been detained for a very length period.

(2) As the Subsequent Claim remains extant, he cannot be removed from Hong Kong.

(3) He is willing to undertake that he will not commit any offence or abscond if released on recognizance.

(4) He can provide an address and put up HK$500 as bail money.

(5) He is undergoing emotional and psychological trauma whilst in detention.

7.2  At the hearing, in addition to the matters covered by the above summary, the Applicant urged me to take into account the following matters:

(1) He has a family in Hong Kong.

(2) He places emphasis on his medical condition, in particular his deteriorating eye condition.

(3) He was tortured on 13 September 2023, ie the day of his 7^th repatriation.

(4) He cannot go back to his home country as he fears for his safety.

(5) He questioned how his travel document could be obtained without his cooperation.

(6) He intends to lodge an appeal against the 6/2/24 Rejection.

8.   Analysis

8.1  Throughout the Applicant's detention period, there has been prima facie lawful authority to detain the Applicant pursuant to the identified sections of the Ordinance.

8.2  The question which falls for determination is therefore whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 889 days, against which the various other factors must be weighed and balanced.

8.3  I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied.

8.4  I also accept that the Director/Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied.

8.5  The matters stated in the preceding two paragraphs are amply demonstrated by (1) but for the abortive repatriation operation on 13 September 2023, the Applicant would have been removed/deported from Hong Kong (and hence released from detention albeit not in Hong Kong), (2) the efforts in expediting the Subsequent Claim and (3) the efforts made in keeping the Applicant’s travel document “current”.

8.6  Although the Applicant’s detention has become lengthier since the Decision, I am of the view that this additional period does not materially alter various conclusions reached by Coleman J:

(1) At Decision §§52 and 53, Coleman J noted that while the period of detention has been unfortunately and exceptionally long, there is no doubt that this could not be attributed to any lack of diligence on the Director’s part. The detention was clearly unnecessarily lengthened by the Applicant’s on-and-off, inconsistent and (at best) lacklustre approach to his non-refoulement claim (“NRC”) and its related proceedings, hallmarked by his repeated request to close/withdraw an application but only to request reopening it months or even years later. The learned Judge also pointed out that the timing of many applications strongly indicates intentional disruption or delay.

(2) The above conclusion is now reinforced by the making of the Subsequent Claim, following the abortive 7^th attempt to effect the Applicant’s removal. As I understand it, the Subsequent Claim was allowed to be made as the Applicant’s NRC was previously deemed withdrawn. To that extent, the decision to allow the Subsequent Claim to be made was not an acknowledgement that the Subsequent Claim is of merit but is simply a decision to afford the Applicant to have his claim substantively determined. That determination has resulted in the 6/2/24 Rejection. In my view, it is plain that the Applicant must take responsibility for the delay caused by the belated pursuit of the Subsequent Claim, and the legal impediment created thereby, bearing in mind that his NRC was deemed withdrawn in December 2016, thereafter sought to be re-opened, and the efforts to re-open withdrawn again on 23 June 2022. The Subsequent Claim was only made after the latest abortive repatriation operation, and as noted above, was effectively a fresh claim. See §§6.6 and 6.7 above.

(3) I agree with Ms Wong there is substantial risk of both absconding and re-offending, in view of the Applicant’s criminal record and absconding record. In particular, absconding risks are of paramount importance, because they may defeat the purpose for which the power of detention is granted in the first place.

(4) Very little weight should be given to the Applicant’s asserted family connection in Hong Kong. Such connection has never been verified. In any event, the wife and children are all Form 8 holders, themselves apparently liable to be removed from Hong Kong. Facing very likely fact that the entire family will eventually be removed, it seems to me that the family as a whole should recognize that the desire to be reunited can and should be achieved outside Hong Kong.

8.7  I find that little weight should be given to the Applicant’s alleged health condition. There is no suggestion that appropriate medical care pending removal is not available to him. In particular, his eye condition, according to the records, was duly attended to by an external hospital.

8.8  Ms Wong has very fairly acknowledged that, should the Subsequent Claim be refused by the Director, further challenges may be made by the Applicant. In so far as whether further legal impediment will thereby be created, it is inappropriate to speculate at this stage: See §6.6 above. Although the Applicant has intimated that he will lodge an appeal against the 6/2/24 Rejection, it appears that his position is taken without having had advice from the Duty Lawyer Service on the merits of any such challenge. Even were the Applicant to make further challenges against the 2/6/24 Rejection, the fact remains that any further period of detention as a result, at this stage, cannot be said to be unreasonable due to the Applicant’s own delay in the pursuit of his NRC. Should further challenges be made by the Applicant, it seems to me likely, and Ms Wong has assured me, that the efforts will be made to expedite the resolution of such challenges.

8.9  I do not place weight on the Applicant’s bare assertion that he was tortured on the day of his 7^th repatriation.

8.10  As to the Application’s assertion of fear for his own safety if repatriated, see §6.3 above.

8.11  I also do not place weight on the Applicant’s own skepticism on how a travel document could be obtained without his cooperation. The documentation clearly shows otherwise, and in any event, the Applicant’s own perception that any self-created practical impediment to his removal would assist his cause is gravely misplaced.

8.12  For the above reasons, HS2 and HS3 are also satisfied.

9.   Conclusion

9.1  I am satisfied that the Applicant's detention, and likely foreseeable future period of detention, has been and will remain lawful.

9.2  As a result, the Applicant's application is dismissed with no order as to costs.