IBRAR UL HASSAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 256/2024

[2024] HKCFI 957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 256 OF 2024

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order made on 30 March 2017.  He has been held in immigration detention since 23 December 2023 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, he has been detained for 103 days.

1.2  On 1 February 2024, the Applicant applied for a writ of habeas corpus.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Ms Augusta Wong, Government Counsel, appeared for the Director of Immigration (“Director”)  and the Secretary for Security (“Secretary”).

2.  Background

2.1  The Applicant is a Pakistani national.  He claims to have entered Hong Kong illegally on 19 May 2006.  According to the information provided by the Applicant, he has no local connections in Hong Kong.

2.2  On 17 November 2006, he was arrested by the police for “murder”.  He was acquitted after trial on 23 October 2007, but was immediately arrested for “illegal remaining” and referred to the Immigration Department for detention.

2.3  The Applicant was released on recognizance on 15 December 2007.  Whilst released on recognizance, the Applicant committed and was convicted of a number of offences and failed to report recognizance on a number of occasions:

(1)  On 20 March 2009, he was convicted of “common assault”, “resisting a police officer in the due execution of his duty”, and “assaulting a police officer” and was fined HK$3,000 in total.

(2)  Since 30 June 2016, the Applicant failed to report recognizance for nearly 10.5 months, until he was arrested by the police on 14 May 2017 for being a wanted person.  He explained that he failed to report recognizance because he was afraid of being arrested.

(3)  On 3 June 2017, the Applicant was released on recognizance.  Since 11 November 2019, the Applicant failed to report recognizance for nearly 2 months, until he reported to the Immigration Department on 6 January 2020.  He went missing since 16 January 2020 and was rearrested by the police on 19 May 2020 for being a wanted person.

(4)  On 10 July 2020, the Applicant was released on recognizance.  Since 5 November 2021, the Applicant failed to report recognizance for around 2 weeks until he reported to the Immigration Department on 19 November 2021. 

(5)  On 24 May 2023, he was convicted of “taking employment while being a person in respect of whom a removal order is in force” and sentenced to 15 month’s imprisonment.

2.4  On 23 December 2023, the Applicant was discharged from prison, upon which the present detention commenced.

3.  The Applicant’s Non-Refoulement Claim (“NRC”)  and related proceedings

3.1  The Applicant’s NRC was rejected by the Director on 9 November 2017.  The Applicant thereafter lodged an appeal against the decision of the Director to the Torture Claims Appeals Board/Non-refoulement Claims Petition Office (“TCAB”). In mid 2019, the Applicant indicated that he wanted to return to his home country and his intention to cancel his NRC in Hong Kong.  On 28 June 2019, TCAB sent a letter to the Applicant, and directed that his appeal/petition be withdrawn (“TCAB’s Decision”).

3.2  On 1 June 2020, whilst in detention, the Applicant requested to reopen his NRC, but on 19 June 2020, the Applicant submitted a written representation stating that he would like to withdraw his request for NRC and to wait for the result of his judicial review against TCAB’s Decision, which was made on 29 June 2020 (HCAL 1347/2020).  The leave application was in respect of the TCAB’s Decision.

3.3  As at the commencement of the present detention, HCAL 1347/2020 remained extant.  Following the commencement of the present detention, requests were made to the Court of First Instance to accord priority to HCAL 1347/2020.  On 25 March 2024, DHCJ To dismissed the Applicant’s leave to apply for judicial review against TCAB’s Decision.

4.  The present detention and its reviews

4.1  At all the interviews conducted since the commencement of the present detention, the Applicant has expressed his unwillingness to return to his home country and refused to complete the reentry formalities.  The Applicant’s passport had expired on 9 August 2009, and even prior to the present detention, the Immigration Department has liaised with the local Consulate General of Pakistan (“CG”)  for the issuance to a replacement travel document to the Applicant.  As a result of the Applicant’s refusal to cooperate, on 7 March 2024, the Immigration Department submitted the Applicant’s photograph to CG for the processing of his emergency travel document via the alternative means.  As matters presently stand, depending on whether cooperation is forthcoming from the Applicant, a replacement travel document can be issued within 2-3 weeks.

4.2  In the review of detention conducted on 22 February 2024, the Director decided that there were grounds for the Applicant’s continued detention on the following broad bases:

(1)  His removal was going to be possible within a reasonable time;

(2)  He posed, or was likely to pose, a threat or security risk to the community;

(3)  He may abscond and/or (re)offend;

(4)  He does not have close connection or fixed abode in Hong Kong; and

(5)  There are no circumstances in favour of his release.

4.3  The Applicant was initially detained pursuant to section 32(3A)  of the Ordinance pending his removal.  Between 13 and 26 March 2024, the Applicant has been detained under section 29(1)  of the Ordinance pending inquiry as to whether the Applicant ought to be deported.  Since 27 March 2024, the Applicant has been detained pursuant to section 29(2)  of the Ordinance pending inquiry as to whether a deportation order ought to be made.

5.  The Applicant’s submissions

5.1  The grounds set out in the Applicant’s written materials may be summarized as follows:

(1)  his removal cannot be effected due to his ongoing judicial review proceedings;

(2)  the period of his detention has become unreasonable;

(3)  the conditions of his detention are similar to a detention in jail, and are having detrimental effect on his well-being;

(4)  he is not detained for the purpose of removal, but for the protection of public safety;

(5)  there are no credible reasons to believe that he will abscond or (re)offend and he has already served the term of the imprisonment imposed for his previous offence;

(6)  he is not violent and is remorseful for his previous indiscretion; and

(7)  he undertakes not to reoffend or abscond if released on recognizance.

5.2  At the hearing, he confirmed the accuracy of the above summary, but emphasis was placed on the adverse effect of his detention on his well-being, and the fact that he has lived in Hong Kong for about 20 years. 

5.3  He also submitted that were the present application unsuccessful, he would like to return to his home country within 1 week.  I had indicated to the Applicant that that court is not in the position to dictate the time period within which he may be removed from Hong Kong.

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  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, (3)  whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place and (4)  factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

6.4  The Court of Appeal has recently provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368.  On the issues of an applicant’s refusal to cooperate in completing the reentry formalities, Au JA said:

“ [29(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.

…

[37] Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba) are necessarily correct.  In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of.  In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.”

7.  Analysis

7.1  During the present detention, the Applicant for different periods was or has been detained pursuant to various sections of the Ordinance.  It follows therefore that there has been prima facie lawful authority to detain the Applicant. 

7.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention, namely 103 days, against which the various other factors must be weighed and balanced.

7.3  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.  I also accept that the Director/Secretary have acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  The foregoing is amply demonstrated by the efforts to expedite the resolution of the Applicant’s leave application and the continued effort in liaising with GC for the issuance of a replacement travel document.

7.4  As matters present stand, pursuant to the Updated Removal Policy, there is no longer any legal impediment to the Applicant’s removal since the dismissal of his application for leave to apply for judicial review by DHCJ To on 25 March 2024.  In the foregoing regard, I do not place significant weight to the Applicant’s change of stance from that taken in mid 2019, namely to withdraw his NRC.  Irrespective of the reasonableness of that decision and the fact that HCAL 1347/2020 was commenced out of time, HCAL 1347/2020 was commenced in June 2020 and remained extant at the time of the commencement of the present application more than 3 years later and was only concluded on 25 March 2024.  It does not appear to me, and it was not seriously disputed by Ms Wong, that the period to resolve HCAL 1347/2020 could all be attributed to the Applicant.  But equally, I do not regard it can legitimately be said that, at the commencement of the present detention, the view taken that the Applicant’s removal was going to be possible within a reasonable time, even with the extant leave application, can be faulted.

7.5  As to the period prior to 25 March 2024, one must remember that the present detention commenced immediately the Applicant’s release from prison.  The view that there was a risk of the Applicant (re)offending was justifiably held.  Due to the Applicant’s clear indication that he is unwilling to return to his home country, I agree with Ms Wong that, together with the Applicant’s lack of verifiable local ties and previous absconding records, there is a substantial risk that the Applicant may abscond if released on recognizance.

7.6  In relation to the matters stated in the preceding paragraph, I do not place weight on the Applicant’s promise that he will not abscond or reoffend; nor do I regard the Applicant’s claim that he has a fixed abode has the effect of ameliorating the absconding risks.

7.7  The other impediment is a practical one, created by the Applicant’s refusal to comply with the reentry formalities.

7.8  It seems to me self-evident that the practical impediments is self-induced by the Applicant himself. 

7.9  Heeding the guidance set out in Johnson Benjamin (§6.4 above), the inescapable conclusion is that the present period of detention (at least after the dismissal of the Applicant’s leave application on 25 March 2024)  cannot, in my view, be regarded as unreasonable, there being no other circumstances to show otherwise. 

7.10  I do not place significant weight on the Applicant's reliance on his well-being allegedly detrimentally affected by his continued detention.  First, there is no suggestion that appropriate medical care pending removal is not available to him.  Secondly, in so far as his mental condition is linked to his detention, for the reasons set out above, the additional period of detention is largely self-induced.

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

8.  Conclusion

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

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