RASHID ZAFAR GHORI v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 1294/2023

[2023] HKCFI 2091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1294 OF 2023

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D E C I S I O N

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A. Introduction

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 422 days (approaching 14 months)  if counting from 16 June 2022, or 737 days (a little over 24 months)  if counting from 5 August 2021.

2.  On 27 July 2023, the Applicant applied for writ of habeas corpus seeking his immediate release from detention.  On 28 July 2023, I gave leave for the Respondents to file and serve a written response and the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, the Respondents was represented by Mr Frenki Fung, Senior Government Counsel (Ag.)  of the Department of Justice (“DOJ”).  The Applicant appeared in person with the benefit of an Urdu/English interpreter.

4.  This is my Decision.

B.  Immigration Status

5.  The Applicant is a Pakistani national born in Pakistan in 1981.

6.  The Applicant was first spotted and arrested by the Police as a suspected illegal immigrant on 5 June 2007.  On his own account, he unlawfully entered Hong Kong on 4 January 2007.

7.  Whilst made subject to the Removal Order as early as April 2008, and then to the Deportation Order since May 2012, he has never been removed from Hong Kong in the 16-odd years following his arrival.  But this is not a result of the lack of attempts on the Director’s part.  I am informed that the Director has attempted to deport the Applicant 6 times – on 8 June 2012, 20 July 2012, 14 September 2012, 12 November 2012, 4 January 2013, and 13 February 2023.  The first 5 attempts were made about 10 years ago, and the last attempt was made within the present period of detention.

8.  I am also informed that all the 6 attempts ended in failure because the Applicant invariably displayed strong and aggressive resistance when he was brought to the check-in counter or boarding gate on the scheduled dates of departure.

9.  In the past 16 years, he has raised three ‘rounds’ of what I would loosely call “Non-refoulement Claims” (“NRC”), albeit NRCs as we now understand them have only settled into their current shape since around 2014, and evolved from what used to be referred to as “asylum claims” or “torture claims”.  There is no need to delve into the legal niceties amongst the three types of claims for present purposes.  Suffice to note that the effect of raising such a claim is to impede the Government from removing a person who would otherwise be removable from Hong Kong, until the claim has been negatively adjudicated up to a certain point.

10.  The 6 deportation attempts made by the Director were executed in the gap between two rounds of NRC, or in the gap within the same round of NRC when the NRC was apparently concluded for some period of time before it was then re-activated.

11.  The first round of NRC (in the form of an asylum claim)  was lodged in January 2007, but closed by the United Nations High Commissioner for Refugees (being the then responsible claim adjudicating authority)  in November 2007.

12.  When the first round of NRC failed, the Applicant initiated the second, and thus resumed his non-removable status.  The second round (in the form of a torture claim)  was lodged in June 2007, and was rejected by the Director in March 2011.

13.  As the chronology indicates, the first 5 deportation attempts were made following the conclusion of the second round of NRC (but before the third round was initiated).

14.  The third round of NRC – which was treated as a NRC proper and processed through the Unified Screening Mechanism – was lodged in January 2013.  In December 2016, the claim was later treated as having been withdrawn since the Applicant had failed to complete and return the required application form.

15.  Almost 5 years later, in October 2021, and only after the Applicant was taken into immigration detention pending his deportation, he requested to re-open his NRC, which request was rejected by the Director in November 2021.  The request to re-open his NRC at that time bears all the hallmarks of a deliberate tactic to create an impediment to removal and resultant delay. 

16.  The Applicant then appealed to the Torture Claims Appeal Board/Non-refoulement Petition Office (“Board”)  in December 2021, but only subsequently to request to “close” his case on the basis that his country had become safe in June 2022. After confirmation by the Applicant, his appeal was treated as “withdrawn” by the Board in July 2022.

17.  However, about 7 months later, on 28 February 2023, the Applicant then sought leave to apply for judicial review of the Board’s decision (treating the NRC as withdrawn), in HCAL 313/2023.  The leave application was heard 3 days ago, on 8 August 2023, with judgment reserved.  It can reasonably be anticipated that a decision will be given soon, within 4 weeks.

18.  As the chronology indicates, the last deportation attempt (scheduled on 13 February 2023)  occurred within that 7-month window when the Applicant was removable – where no NRC-related proceedings were maintained, as the appeal to the Board was treated as withdrawn in July 2022.  But the Applicant effectively ended his removable status by instituting the leave application, 2 weeks after he had just frustrated the 6^th deportation attempt.  This again smacks of a delaying tactic.

C.  Criminal Record, Previous Detention, & Absconding Record

19.  As summarized by Mr Fung, since the Applicant’s unlawful entrance to Hong Kong, he was arrested by the Police on 14 occasions for suspected criminal activities and on 1 occasion as a wanted person.  He had also served 7 imprisonment sentences for various offences, ranging from 2 weeks to 18 months.

20.  His conviction and sentencing record is as follows:

(1)  On 18 February 2008, he was sentenced to 4 months’ imprisonment for trafficking in dangerous drugs.

(2)  On 2 May 2009, he was fined $500 and sentenced to 2 weeks’ imprisonment for 2 counts of common assault respectively.

(3)  On 24 May 2010, he was sentenced to 4 months’ imprisonment for assault.

(4)  On 1 September 2011, he was sentenced to a total of 12 weeks’ imprisonment for 2 counts of common assault.

(5)  On 18 January 2012, he was sentenced to 9 months’ imprisonment for unlawfully remaining in Hong Kong.

(6)  On 14 August 2014, he was sentenced to 18 months’ imprisonment for burglary.

(7)  On 8 September 2016, he was sentenced to 3 months for possession of dangerous drugs.

(8)  On 12 March 2018, he was sentenced to 14 days (suspended for 2 years)  for possession of dangerous drugs.

(9)  On 28 July 2020, he was sentenced to 2 months (suspended 12 months)  and fined $2,000 for misleading a police officer by giving false information.

21.  It can be noted that the last four convictions and prison sentences all occurred after the Applicant had frustrated 5 attempts to remove him from Hong Kong. 

22.  All periods of imprisonment served by the Applicant were immediately followed by a period of immigration detention.  On every occasion, upon his discharge from prison, he would be transferred to the Immigration Department where the Director would then detain him for a brief period of time.  On the first occasion, the detention was for enquiring if a removal order ought to be made against him.  On all the other occasions, the detention was to await his removal or deportation.

23.  Before 5 August 2021, those periods of immigration detention lasted between 2 weeks and 4 months and immigration recognizance was invariably granted/resumed at the end of those periods to enable the Applicant to live freely in the community subject to the duty to regularly report and to extend recognizance.

24.  The Applicant failed to report immigration recognizance twice, and also jumped court bail or police bail twice, as follows:

(1)  On 1 April 2010, the Applicant failed to report police bail until he was rearrested more than 2 weeks later, on 17 April 2010.

(2)  On 3 June 2011, he failed to appear in court for the mention hearing of his charge of illegally remaining in Hong Kong after court bail was previously granted to him.

(3)  On 16 June 2011, he failed to report immigration recognizance until he was arrested almost a month later, on 11 July 2011.

(4)  On 21 December 2020, he failed to report immigration recognizance.  Record shows that he was arrested a little less than one month later on 25 January 2021 by the police for theft, and then on 8 February 2021 again for obstructing a police officer in the due execution of his duty.  He was granted police bail on both occasions. But he was neither transferred by the police to the Immigration Department nor did he come to contact immigration officers on his own initiative.  On record, he only came back on the radar of the Immigration Department again on 5 August 2021, when he was arrested by the police as a wanted person and then transferred into immigration custody.

25.  Ever since he was transferred to the Immigration Department on 5 August 2021, he has been in continuous immigration detention up to today, except for the period of one month running from 17 May 2022 to 16 June 2022, when he was imprisoned rather than held in immigration detention.

26.  The imprisonment arose from the Applicant’s failure to comply with regulations prohibiting group gatherings applicable during the Covid-19 period, for which he was convicted on 22 April 2022. He was ordered to pay a fine of HK$10,300 by 6 May 2022, failing which he would be committed to prison for 1 month.  He did not make the payment by the deadline and was then committed to prison by the order of the Tuen Mun Magistrate’s Court.  As the chronology indicates, he was detained by the Director at all the key dates.

D.  Steps towards Removal

27.  As is common in a habeas corpus application of this sort, the removal obstacles impeding the Applicant’s removal have been (1) his NRC-related proceedings, and (2) the need to ensure that he has a valid travel document for returning to his home country.

D1.  NRC

28.  I have set out above the procedural history of the Applicant’s three ‘rounds’ of NRCs.

29.  When the Applicant was taken into custody on 5 August 2021, the third round of his NRC was apparently ‘done and dusted’, with no further action being taken since the claim was treated as being withdrawn over 4½ years beforehand, in December 2016.  Still only a few more months later, his claim was reactivated briefly from October 2021 by his request to the Director to reopen it.  But it was then again ended, upon his own instructions given to the Board, resulting in the application being treated as withdrawn in July 2022.  After a further 7-month gap, the Applicant sought to re-activate the claim by instituting the leave application in February 2023, which application was heard 3 days ago.

30.  It is not unreasonable to expect that the CFI will give a decision very soon.  In fact, the Deputy Judge dealing with the application has indicated that the decision will be available within 4 weeks of the hearing. 

31.  Further, the application was made out of time by more than 4 months.  I have also been provided with the Form 86 and the supporting affirmation, which suggest that the leave application is far from complicated, and without obvious merit.  The intended review seeks to challenge the decision made by the Board on 8 July 2022, which confirmed that the Applicant’s appeal to the Board was treated as “withdrawn” upon the Applicant’s own request to “close” the case.  The ground identified in the supporting affirmation is merely stated as:

I cannot go back to my home country because I have a risk of my life if I go back to my home country. I wish to stay in H.K. for my life. I’ve withdrawn my case.  Because of my case officer asked me and that caused another risk of my life. Therefore I applied for JR for saving my life.

D2.  Passport

32.  In the Director’s records, the Applicant only has a Pakistani identity card.  Efforts have been made since March 2011 to liaise with the Pakistani Consulate for the purpose of obtaining a travel document for the Applicant, for his re-entry to Pakistan.

33.  As said, the liaison started in March 2011. As early as 4 June 2012, the Director was able to secure an emergency travel document for the Applicant.  Thereafter, 5 (failed)  deportation operations were attempted in the span of a little over 6 months, from June 2012 to January 2013.

34.  Such liaison and efforts were resumed a few years before the Applicant was taken into custody on 5 August 2021. Letters were sent to the Consulate for this purpose on 12 January 2017, 8 June 2017 and 28 August 2020.

35.  The liaison continued after 5 August 2021, which eventually resulted in the issuance of another emergency travel document on 7 October 2022, with validity expiring on 7 November 2022.

36.  The Director then procured the extension of the emergency travel document on numerous occasions to ensure that the document remains current.  The travel document was last extended on 15 February 2023 to be valid until 13 October 2023.

37.  As shown in the chronology, the last extension was promptly procured after the 6^th deportation operation was thwarted by the Applicant on 13 February 2023.

E.  Applicable Principles

38.  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 any individual case.

F.  The Applicant’s Submissions

39.  The Applicant exhibited to his supporting affirmation 4 pages of handwritten notes, the submission content of which was summarized – I think fairly – by Mr Fung in his written response, largely as follows:

(1)  The Applicant’s removal would not be possible within a reasonable time.

(2)  The Director failed to give proper weight on the effect of the detention on the Applicant and his family.

(3)  The Director has been unacceptably slow in dealing with the Applicant’s case.

(4)  For the question on his potential absconding, he considered it not necessary to argue on whether this “may or may not” happen as this is not factual.

(5)  It was wrong for the Director to assert him having previously escaped from custody while he had never done so.

(6)  He has spent over 24 months in detention yet the legal proceedings still cannot be completed and he has other proceedings to attempt.  Therefore, there is no sufficient reason to believe that legal proceedings can be completed within a reasonable period of time.

(7)  On the security risk posed by the Applicant to the community, he considered arguing “likely or not” is not meaningful.  Also, he pointed out that he did not have triad background or connection.

40.  Mr Fung disagreed that the current immigration detention has lasted 24 months (apparently counting from 5 August 2021). He said the present detention only commenced on 16 June 2022.  But he also fairly accepted that the period of immigration and jail detention immediately preceding 16 June 2022 could be taken into the assessment as to the overall effect the present detention has had on the Applicant.  As will be seen below, I consider that the appropriate period of detention against which to weigh and balance the other factors did commence on 5 August 2021.

41.  With regard to the reference to his family, I am informed by Mr Fung that the Applicant has repeatedly mentioned that he has a girlfriend/wife and children (who are all non-refoulement claimants)  in Hong Kong, but such information has never been verified, despite attempts to contact them for verification.  From 2012 to 2023, the Applicant has put forward 4 different names for his wife or girlfriend, who was said to have given birth to a different number of children and of different sexes.  Up to this date, with the inconsistent particulars given by the Applicant, the Director is still unable to verify whether the Applicant indeed has family members in Hong Kong and who are they.  But, Mr Fung said, in any event, the Director and the Secretary were all along well aware of the Applicant’s asserted family situation and has taken this into due consideration.

42.  Mr Fung also clarified that although the Applicant had failed to report immigration recognizance and had jumped police or Court bail, it is not the Director’s assertion that the Applicant has escaped from custody.

43.  At the oral hearing, the Applicant made the following further submissions (in my summary of them):

(1)  His judicial review proceedings are still ongoing, and even if the current application is determined against him, he is able to appeal.

(2)  He has been detained for a very long time.

(3)  He wants to ask the Court to give him a chance, because if released he could care for his wife and children, about whom he is very worried.

(4)  His wife is not well, and needs assistance caring for the children.

(5)  He does not understand why the immigration officers have not been able to establish contact so as to verify his family.

(6)  When he was first detained in 2021, he stated in interview to the immigration officer about his wife, and the officer spoke over the phone with his wife.

(7)  He himself contacts his wife, including by telephone.

G.  Whether Detention has become unlawful

44.  At all times during the current period of detention, the Applicant was detained under section 32(3), which permits the detention of a person against whom a deportation order is in force.  The Deportation Order remains extant.  There was and remains clear prima facie lawful authority for the detention.

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

46.  I can address the Hardial Singh principles broadly as below.

47.  The starting point must be the length of the detention against which all the other factors must be weighed and balanced.

48.  In my view, it is fair to count the period of detention from 5 August 2021 in this case, in light of the circumstances giving rise to the interruption by one month’s imprisonment and that there was no break in the continuity of detention since 5 August 2021. In any event, it matters not in the overall scheme of thing whether the period of detention is to be counted from 5 August 2021 or 16 June 2022, given that Mr Fung has fairly accepted that the effect on the Applicant from the preceding period of detention should also be taking into account in the overall assessment.

49.  Starting from 5 August 2021, the detention has lasted 24 months, which is a very substantial period of time.  Naturally, depending on the circumstances, factors which might have been given a particular weight at the early part of that period may be given rather different weight when brought into the balance at the end of that period.  I keep that firmly in mind.

50.  I have no doubt that HS1 and HS4 are satisfied. The chronology set out above has clearly indicated that the Director has always been detaining the Applicant for the purpose of deportation, and has been working diligently and expeditiously towards that end.

51.  The Director has promptly procured the issuance of the necessary travel document and has sought renewal of it regularly to keep it current.  Also, after the Applicant had been taken into detention, requests were made to the Board (by letter dated 16 March 2022)  and to the High Court (by letter dated 17 March 2023)  to accord priority to the Applicant’s case.  A deportation operation was also attempted during the window when the Applicant was free from any removal obstacles.

52.  While the period of detention has been unfortunately and exceptionally long, I have 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 NRC-related proceedings, hallmarked by his repeated request to close/withdraw an application but only to request reopening it months or even years later.  I have also already pointed out that the timing of many applications strongly indicates intentional disruption or delay.

53.  The Applicant has directly prevented or delayed his deportation by his actions, as is clear from his frustrating the deportation attempts.  Even recently, the Applicant could have been removed and thus released from detention, albeit not in Hong Kong, at the latest by 13 February 2023, had he chosen not to thwart the 6^th repatriation operation. Yet, he responded by instituting a leave application significantly out of time, attempting to reopen an appeal to the Board (in his third round of NRC)  which had been withdrawn upon his very own instructions.  I draw the inference that the Applicant continues to adopt various ploys aiming to delay or thwart his removal.

54.  The Applicant now has a valid travel document.  It can be expected that the CFI will make a decision for the Applicant’s leave application quickly.  I am informed by Mr Fung that a further repatriation operation will be quickly put in place when and if the CFI refuses to grant leave out of time.  Repatriation could well be imminent.

55.  I also agree with the Director that there is substantial risk of both absconding and re-offending, in view of the Applicant’s criminal record and absconding record.  Re-offending and absconding risks are of paramount importance, because they may defeat the purpose for which the power of detention is granted in the first place.

56.  The Applicant has no verified family connection in Hong Kong, but in any event the family members are all Form 8 holders, themselves apparently liable to removal from Hong Kong.  Coupled with his strong resistance to return, demonstrated not least in the past 6 failed repatriation operations, there is a real risk that he would abscond if he were to be released on recognizance.

57.  The Applicant is a repeated offender.  I particularly bear in mind that previous offences were committed whilst the Applicant was on recognizance, and that numerous offences were committed by the Applicant after he had frustrated attempts to deport him.

58.  I give very little weight to the Applicant’s asserted family connection in Hong Kong.  First, I note that such connection has never been verified.  Though the Applicant says that at least one immigration officer has actually spoken to his wife over the telephone, I am informed that attempts to contact her on the numbers provided by the Applicant have all failed.  But in any event, the wife and children are all Form 8 holders, themselves apparently liable to be removed from Hong Kong.  I acknowledge that the Applicant says he is worried about his children, and wishes to care for them.  Assuming that to be true, the Applicant can arrange for his family swiftly to reunite with him outside Hong Kong once he has been deported. Therefore, I agree with the Director the family circumstances do not outweigh the other factors pointing in favour of continued detention.

59.  Overall, weighing the period of detention – the very substantial period of around 24 months – against all the other factors, I am satisfied that HS2 and HS3 are met.

60.  In consequence, the period of detention to date has remained lawful at all times, and will remain lawful for the foreseeable future.

H.  Result

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