HUSSIAN, ADNAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 995/2023

[2023] HKCFI 1884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 995 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 and a Deportation order issued on 21 September 2020 and 6 December 2022 respectively. Since 22 January 2021, he has been held in immigration detention pending his removal from Hong Kong. To the date of this hearing, he has been detained for 909 days, or about 2½ years.

2.  On 21 June 2023, he applied for writ of habeas corpus seeking his immediate release from detention. On 26 June 2023, I gave directions for the papers to be served on the Respondents and for them to file and serve their written response, as well as the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, the Respondents were represented by Ms Lynn Hui, Government Counsel. The Applicant appeared in person with the benefit of an Urdu/English interpreter.

4.  This is my Decision.

5.  But, before getting into the detail of the case, it is worth giving the reminder that:

(1)  A habeas corpus application of the sort made in these proceedings is not the occasion for the Court to consider whether or not the Applicant should be removed or deported from Hong Kong.

(2)  The question whether a person such as the Applicant should or should not be repatriated is raised and dealt with in the context of a non-refoulement claim, dealt with by administrative decisions and in any related Court proceedings.

(3)  The Applicant in this case has not established a good non-refoulement claim.

(4)  The Applicant in this case is, as already mentioned, subject to an extant Removal Order and an extant Deportation Order.

(5)  These proceedings do not constitute any challenge either to the Removal Order or to the Deportation Order.

(6)  Therefore, these proceedings are dealt with on the basis that the Applicant is subject to removal and/or deportation, and that he will be removed or deported.

(7)  The relevant question for determination in proceedings such as these is whether the Applicant can continue to be lawfully held in immigration detention until he is removed or deported.

(8)  That question falls to be determined by reference to the principles which are identified below.

B.  Applicant’s Immigration Status

6.  The Applicant is a Pakistani national, apparently born on 5 November 1995. From 2 June 2009 to 2 June 2016, he was permitted to stay in Hong Kong as the dependent of his father, who is a permanent Hong Kong resident. Apparently, he had failed to obtain permission to stay in Hong Kong on any lawful basis upon the expiry of the limit of stay last granted to him. He surrendered himself to the Director on 29 November 2016. Upon his application, he was again allowed to stay as his father’s dependent from 18 July 2018 to 14 March 2019. Thereafter, he has been unlawfully staying in Hong Kong.

7.  As said, a Removal Order and a Deportation Order were subsequently imposed on him.

8.  The Removal Order was made on 21 September 2020, pursuant to section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”) on the basis that he had contravened a condition of stay.

9.  The Deportation Order was made on 6 December 2022, pursuant to section 20(1)(a) of the Ordinance, which authorises the making of such an order against an immigrant who has been found guilty in Hong Kong of what may be called “deportable offences”.

10.  This takes us to his criminal record.

C.  Criminal Record

11.  From 2013 to 2020, the Applicant committed various offences, some of which were relied upon for the issuance of the Removal Order and the Deportation Order. The conviction and sentencing record is as follows:

(1)  On 22 August 2013, he was sentenced to 2 weeks’ imprisonment for assaulting a police officer, and was fined HK$800 for failing to produce proof of identity on demand.

(2)  On 14 September 2016, he was sentenced to 2 weeks’ imprisonment suspended for 24 months and fined HK$1,500 for assault occasioning actual bodily harm.

(3)  On 23 March 2017, he was sentenced to 2 weeks’ imprisonment suspended for 12 months for breach of condition of stay.

(4)  On 28 September 2018, he was sentenced to 3 weeks’ imprisonment for assault occasioning actual bodily harm, and to 2 weeks’ imprisonment for breach of suspended sentence.

(5)  On 26 November 2018, he was sentenced to 8 month’s imprisonment for wounding.

(6)  On 23 December 2020, he was sentenced to 4 months’ imprisonment for assault occasioning actual bodily harm.

12.  He completed his most recent prison sentence (for assault occasioning actual bodily harm) on 22 January 2021. Upon his discharge from prison, he was handed over to the Director who then started to remand him in detention pursuant to the Removal Order (at the time the Deportation Order had not yet been issued).

D.  Removal Obstacles

13.  As is usual in habeas corpus applications raised by immigration detainees, the obstacles to removal have been (1) the Applicant’s non-refoulement claim (“NRC”) or related proceedings and (2) his expired travel document which needed replacement.

D1.  NRC

14.  Unlike most of the immigration detainees coming before the Court in habeas corpus proceedings, the majority of the Applicant’s long stay in Hong Kong was neither unlawful nor was only tolerated by his raising a non-refoulement claim (“NRC”). As the chronology indicates, for the 7-year period running from June 2009 to June 2016, and a brief period running from July 2018 to March 2019, he was lawfully staying in Hong Kong on the strength of a dependent visa.

15.  It can be noted that when the permission to stay first ended in June 2016, the Applicant was approaching 21 years of age. When the second period ended in March 2019, he was 23 years old.

16.  But it was only after the expiration of the dependent visa in March 2019 that the Applicant indicated his intention to lodge an NRC for the first time in June 2019. The basis of the NRC was the Applicant’s claim that his life was in danger in Pakistan because of a land dispute with his cousins, over shared land, and following assaults and threats made to him in Pakistan in 2014. Nevertheless, he later withdrew his claim through the Duty Lawyer Service in November 2019.

17.  On 22 January 2021, the day when he was taken into immigration detention, he expressed his intention to reopen his NRC. In a letter dated 17 February 2021, the Applicant acknowledged that he had no evidence for his claim and also did not have contact with his family members, but nevertheless requested reopening of the NRC. Though the point is not determinative of this application, it might be thought that the context and timing of his seeking to reopen the NRC rather suggests a tactical ploy to create an obstacle to removal.

18.  On 5 March 2021, after some correspondence and having collected more information from the Applicant, the Director reopened the Applicant’s NRC.

19.  On 26 March 2021, with the assistance of the Duty Lawyer Service, the Applicant submitted his completed NRC form.

20.  The Director conducted a screening interview with the Applicant in the presence of a duty lawyer on 9 April 2021 and resolved the NRC by its dismissal on 15 April 2021. The dismissal letter deals in detail with the basis of the claim and its consideration.

21.  On 10 May 2021, the Applicant applied to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office Appeal Office (“Board”) against the Director’s decision, out of time. The late application was accepted by the Board for handling on 2 July 2021.

22.  On 5 July 2021, the Director requested the Board to accord priority to the Applicant’s case in the light of his being held in detention.

23.  The appeal was heard by the Board on 2 September 2021 and 17 September 2021. The Board dismissed the appeal on 11 October 2021. The Board’s decision identifies that none of the basis underpinning the NRC were accepted, and that in any event internal relocation was a reasonable alternative, so that the claim for non-refoulement protection would also fail on that ground.

24.  On 3 November 2021, the Applicant applied to the Court of First Instance (“CFI”) for leave to appeal against the Board’s decision by way of judicial review. On 15 February 2022, the leave application was refused by the CFI.

25.  On 12 April 2022, the Applicant applied for extension of time to appeal against the CFI’s refusal. On 24 May 2022, the CFI refused to extend time.

26.  On 30 May 2022, the Applicant renewed his extension of time application before the Court of Appeal (“CA”). This application was dismissed by the CA on 31 October 2022.

27.  On 7 December 2022, the Government changed its removal policy such that once a claimant’s NRC has reached the stage of its subsequent judicial review application being rejected by the CFI, it would no longer be seen as a removal impediment regardless of the existence of any further proceedings.

28.  This has put an end to the removal obstacle arising from the Applicant’s NRC.

D2.  Replacing travel document

29.  The Applicant held a Pakistani passport which had expired on 14 April 2019 and which he had claimed to have lost.

30.  The Director first liaised with the local Consulate General of Pakistan as early as in January 2019, for the purpose of obtaining a replacement passport for the Applicant. The Pakistani Consulate confirmed the Applicant’s identity in December 2020. Both events pre-dated the present immigration detention.

31.  After the Applicant was taken into immigration detention, the Director followed up with the Consulate regarding the issuance of a replacement passport in June 2022.

32.  I am informed that the Applicant had not been cooperative in the application process. On 24 June 2022, the Applicant refused to submit the re-entry application. On 29 July 2022, he declined to do so again.

33.  On 15 November 2022, the Director explored with the Consulate the possibility to issue a replacement travel document by alternative means in view of the Applicant’s uncooperativeness. On 19 December 2022, the Director sent a chaser to follow up with the request.

34.  On 8 February 2023, the Applicant still refused to fill in the application form or to take a photo for the purpose of his re-entry application.

35.  On 16 February 2023, the Director again requested the Consulate to issue a replacement travel document to the Applicant notwithstanding his uncooperativeness.

36.  On 2 March 2023, the Pakistani Consulate eventually issued an emergency passport to the Applicant. Since then, all removal obstacles had been cleared.

37.  It can be noted that the time taken to resolve the NRC-related proceedings and the time taken in obtaining an emergency passport (notwithstanding the Applicant’s refusal to cooperate) significantly overlapped.

E.  Repatriation Operations

38.  Since the Applicant had been free from removal obstacles, the Director had put in place two repatriation operations, both of which were unfortunately frustrated by the Applicant’s refusal to cooperate.

39.  The first repatriation operation was scheduled on 31 March 2023. Upon reaching the airport, the Applicant showed strong resistance and the airline staff refused the issue a boarding pass to him due to a security concern. The operation was eventually called off.

40.  A second repatriation operation was attempted on 5 June 2023. Again, the Applicant reacted strongly at the airport, leading to the airline staff’s refusal to issue a boarding pass to him. The operation failed again.

41.  A third repatriation operation has now been scheduled on 25 July 2023. A flight ticket has been booked for this purpose.

F.  Review of Detention

42.  The Director and/or Secretary has reviewed the Applicant’s detention on numerous occasions. Continued detention was recommended every time. Throughout the series of reviews, as reflected in the Director’s internal minutes, the broad grounds for recommending continued detention are as follows: (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he poses or is likely to pose, a threat to the community; (c) he may abscond and/or re-offend; (d) there are no other factors favouring release.

43.  When the NRC related proceedings were still a removal obstacle and a replacement passport was not yet issued, the Director took note of the progress on both fronts in coming to the view that removal would nonetheless be possible within a reasonable time.

44.  After all the removable obstacles had been cleared, the Director took note that further delay was caused solely by the Applicant’s own actions in refusing and/or resisting the repatriation operations.

45.  The Director also noted that the Applicant has a father and a brother who are both permanent Hong Kong residents and another brother who is a resident. They are all willing to stand as the Applicant’s guarantor. But the Director was of the view that this could not tilt the balance in favour of release on recognizance.

G.  Applicable Principles

46.  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.

H.  The Applicant’s Submissions

47.  The Applicant has exhibited some 70 pages of documents to his supporting affirmation. Most of them are recitation or excerpts of case authorities or legal instruments, but without explaining how they could be applicable to his specific case:

(1)  16 pages of handwritten notes set out the legal principles applicable to habeas corpus application;

(2)  a copy of the decision in Malik Kmaran v Director of Immigration [2022] HKCFI 3474;

(3)  a copy of the decision in Allah Ditta v Director of Immigration [2022] HKCFI 1505;

(4)  an excerpt of the United Nations Standard Minimum Rules for the Treatment of Prisoners;

(5)  an excerpt of the Hong Kong Bill of Rights Ordinance;

(6)  a set of handwritten notes titled “Ground to Show Cause Before Acting Registrar” setting out legal principles apparently relevant to non-refoulement claims;

(7)  a letter issued by the Correctional Services Department evidencing his expected discharge date on 22 January 2021; the extract of the record for bail proceedings in his previous criminal matters and a copy of his Hong Kong identity card.

48.  At the oral hearing, he handed up further documents and also submitted (in my summary of his points):

(1)  Detention for a period of almost 30 months was unreasonable.

(2)  His whole family is in Hong Kong, being Hong Kong residents.

(3)  His family members in Hong Kong are ready to act as guarantors for him. Previous issues which he had between himself and family members have been resolved.

(4)  The family members are present in Court, and the Court can ask them any questions.

(5)  Detention is harsh because of the mix of people held in detention together (including addicts, alcoholics, and criminals), which creates a “mess”, and where detainees are liable to many rules and searches. It is “a disgrace” for the detainees.

(6)  Whilst he had committed crimes in the past, he had pleaded guilty to the offences, and they were committed when he had an identity card.

(7)  He has provided all relevant documents to the Immigration Department.

(8)  Whilst he used to have an identity card, he is now made a refugee, and is being forced to return to his country, which he should not have to do.

(9)  A number of other detainees have been released after much shorter periods than his period of detention.

(10)  His life is in danger in Pakistan, and he does not want to go back.

(11)  All he seeks is fairness and justice.

49.  I also note that one of the documents handed in during the hearing was a letter from solicitors acting for the Applicant addressed to the Director and dated 23 March 2023. The letter asserts that the Applicant’s brother had called the Applicant to state that the Applicant’s life would be in danger should he be sent back Pakistan, and that the Applicant expressed his pressing needs to stay in Hong Kong to preserve his life despite the fact that his wife and child are in Pakistan. The letter also suggested that the solicitors had instructions to visit the Applicant to take instructions for the purpose of re-opening his NRC and/or other applications.

50.  In so far as they are relevant to the question which arises on this application (see above), I will bear all these points in mind in my analysis below and mention them expressly as seems to me to be appropriate.

I.  Whether Detention has become unlawful

51.  As said, the Applicant had only sought to re-open his NRC – which had been previously raised but withdrawn in 2019 – on the day when he was taken into immigration detention in January 2021.

52.  A claimant may not be removed from Hong Kong to a torture risk State unless and until the torture claim (i.e. the component of a NRC based on torture risk) has been withdrawn or has been finally determined as not substantiated: see section 37Z of the Ordinance. A torture claim is finally determined when it is dismissed by the Board, or dismissed by the Director and no appeal to the Board is lodged within the stipulated period: see section 37V. It can also be noted that only a person who is subject or liable to removal may lodge a torture claim: see section 37W.

53.  Thus, when there is a subsisting torture claim, a claimant cannot be detained “pending his removal” because he, by virtue of section 37Z, may not be removed from Hong Kong. In the circumstances, even if there is an extant Removal Order, the authority cannot access the detention power provided by section 32(3A).

54.  But the Ordinance provides an alternative basis for detention for those claimants with subsisting torture claims which are not yet finally determined. Section 37ZK provides that a claimant may be detained pending final determination of his torture claim.

55.  Throughout the Applicant’s period of detention, the statutory bases for detention switched amongst various sections of the Ordinance:

(1)  From 22 January 2021 to 5 March 2021, the Applicant was held under section 32(3A), which authorises the detention of a person against whom a removal order has been issued pending his removal. It may be noted that, although the Applicant indicated his intention to reopen his NRC on 22 January 2021, the NRC was only formally opened by the Director on 5 March 2021.

(2)  From 5 March 2021 to 29 April 2021, the Applicant was detained pursuant to section 37ZK. The Director rejected the NRC on 15 April 2021, and the detention power granted by section 37ZK lapsed within 14 days after the decision was made by the Director.

(3)  From 29 April 2021 to 5 July 2021, the Applicant was again the detained under section 32(3A). Although the Applicant applied to appeal against the Director’s decision on 10 May 2021, that application was out of time. It was only upon the Board’s decision on 5 July 2021 to accept the late application which brought the NRC proceedings “live” and rendered section 32(3A) inapplicable.

(4)  From 5 July 2021 to 11 October 2021, the Applicant was detained under section 37ZK, until his appeal was dismissed by the Board by the end of this period.

(5)  From 11 October 2021 to 15 November 2022, he was detained under section 32(3A). Court proceedings arising from the NRC were on foot from 3 November 2021 to 31 October 2022, but they were not a “torture claim” which would prevent a claimant from being removed from Hong Kong under the Ordinance.

(6)  From 15 November 2022 to 6 December 2022, he was detained under section 29, which authorises detention for the purpose of enquiring whether a deportation order should be issued.

(7)  From 6 December 2022, on which date the Deportation Order was issued, he has been detained under section 32(3) ever since, pending his deportation from Hong Kong.

56.  Thus, there was and there remains clear prima facie lawful authority for the detention of the Applicant throughout the whole period. Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

57.  The Hardial Singh principles which were developed in the context of detention pending removal or deportation are equally applicable for detention pending the final determination of torture claims, with suitable modification.

58.  I can address the Hardial Singh principles broadly below.

59.  The starting point is that the Applicant has been detained up to today for a period of 909 days or about 2½ years. This is a very substantial period of time indeed, and it is against that period that the other factors are to be weighed and balanced.

60.  I am satisfied that the detention power has been used either to facilitate removal or pending the final determination of the Applicant’s NRC throughout the entire current detention period. There is no basis to suggest that the detention was otherwise motivated. HS1 is satisfied.

61.  I also accept that the Director has been acting throughout with reasonable diligence and expedition.

62.  From the Applicant’s indication that he would seek to re-open his NRC on 22 January 2021, it took him about 2 months (up to 26 March 2021) to complete and submit his NRC form. Once the Director obtained the necessary information to process the claim, he quickly gave a decision within about 3 weeks, i.e. on 15 April 2021. When the NRC had proceeded further to the Board level and then the Court level, the claim was out of the Director’s control, but he did inform the relevant decision makers that the Applicant was held in custody and asked for priority (which appears to have been accorded).

63.  In light of the very timing of the renewed attempt to raise the NRC, and the Director’s own view of the merits of that NRC, it seems to me that it was not unreasonable for the Director to hold the view that the further applications made to the Board, and subsequently through the Courts, were likely to be able to be determined with reasonable expedition. The application to the Board was indeed determined within 3 months from the acceptance of the appeal, and the subsequent application to the CFI was also determined within 3 months. I do not think it incumbent on the Director contemporaneously to have assumed that the Applicant would continue to make further applications to the Court system. But, when further applications were made requiring an extension of time, it was reasonable of the Director to have proceeded on the basis that such applications would also be determined with reasonable expedition, not least where priority for them had been requested.

64.  In other words, though the process of the entire NRC-related proceedings ultimately took some considerable time, at any given moment the Director was entitled to have believed that removal could be affected within a reasonable time at each step.

65.  As for the Director’s efforts in resolving the other removal obstacle – the need to replace the Applicant’s expired passport, they are more than sufficiently demonstrated in the chronology set out above. Despite the Applicant’s uncooperative attitude, the Director has followed up the matter with the Pakistani Consulate proactively and expeditiously.

66.  Further, as I have already pointed out, the time taken for the resolution of the NRC-related proceedings and the time taken in obtaining a replacement passport significantly overlapped. Therefore, even had the NRC-related proceedings ended sooner, there would have remained the practical obstacle to removal which was in effect entirely self-inflicted by the Applicant. It lies ill in the mouth of the Applicant to complain about the period of detention when he has significantly contributed to it by his own choices.

67.  Once all removable obstacles were removed on 2 March 2023, a repatriation operation was quickly put in place in the same month. After the first operation was obstructed by the Applicant, a second operation was put in place within a little more than 2 months. The Director’s efforts continued after the second operation also failed, resulting in the third operation now scheduled to take place on 25 July 2023.

68.  Again, therefore, the continued period of detention following the lifting of the obstacles to removal is largely the result of the Applicant’s own stance. The delay is self-inflicted.

69.  Overall, I fully accept that the Director has been acting with reasonable diligence and expedition throughout the entire period. HS4 is satisfied.

70.  I have already recognised that the overall duration – about 2½ years – is a very lengthy period. But, as already pointed out, it would not be unfair to say that a large part of it was authored by the Applicant himself.

71.  The removal obstacle arising by the NRC or related proceedings was consequential to the Applicant’s conscious decision to re-open his NRC on the same day after he was taken into detention, on 22 January 2021. That was about 11½ years after he first landed in Hong Kong in June 2009, 5½ years after his dependent visa first expired in June 2016 and almost 2 years after his dependent visa expired again in March 2019. Of course, for a significant part of the overall period the Applicant was a minor. But he became an adult in 2013. Had the Applicant chosen to pursue his NRC with promptitude and diligence, his NRC and related proceedings might have already been finally resolved before he was taken into custody in January 2021, or at least would have progressed to a much more advanced stage.

72.  The same could be said about the time spent on obtaining a replacement passport for him. Had he chosen to cooperate in the application procedure, the passport could have been issued to the Applicant much earlier.

73.  Even if one puts aside that the delay arising from his NRC or passport issue, it is hard to ignore that the Applicant could have been released by now, if he went along with the first repatriation operation in March 2023 or the second operation in June 2023. By wilfully frustrating two operations which would release him from detention by sending him to his home country, he must be taken to have chosen to remain in detention.

74.  I agree with the Director’s assessment that the Applicant poses a threat or security risk to the community if released from detention. The Applicant is a repeat offender and was thrice convicted of assault and once convicted of wounding.

75.  I also agree that there is a real risk of absconding. The Applicant has consistently and vigorously showed his reluctance to return to his home country. This is most vividly demonstrated in his conduct, not least the strong reaction at the airport leading to the cancellation of two repatriation operations. The third repatriation is scheduled in less than one week’s time. It is not unlikely that he would not show up at the airport when time is due for repatriation if he were to be released on recognizance now. This would frustrate the purpose for which the power of detention is granted in the very first place.

76.  I also agree with the Director that the Applicant’s family connection in Hong Kong – essentially through his father and brother – does not outweigh the factors favouring continued detention. I note that it could not be correct to suggest that the whole of the Applicant’s family is in Hong Kong when the Applicant’s own wife and child are apparently resident in Pakistan.

77.  Overall, weighing the period of detention – 909 days, or 2½ years – against all the other factors, including that departure is imminent and that he can be and should soon be released from detention albeit in Pakistan, I am of the view that the detention of the Applicant has remained and will remain for a period which was and is reasonable and lawful.

78.  As I have already pointed out, arrangements have also been made for the Applicant to be repatriated to India on 25 March 2023. On that basis, the Applicant can be and should be released from detention within one week from now, albeit in India.

J.  Result

79.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus.

80.  I make no order as to costs.