FAROOQ MUHAMMAD ZAHID v. HONG KONG SAR GOVERNMENT

HCAL 1308/2022

[2022] HKCFI 3780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1308 OF 2022

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BETWEEN

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J U D G M E N T

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A. Introduction

1.  The Applicant is the subject of a Deportation order made on 7 June 2018 pursuant to section 20 of the Immigration Ordinance Cap 115 (“Ordinance”). He has been held in immigration detention since 3 April 2021 pending his deportation under section 32(3) of the Ordinance. To the date of hearing, the period of detention has lasted 630 days or around 1 year and 9 months.

2.  On 23 November 2022, the Applicant applied for a writ of habeas corpus on grounds identified in his supporting affirmation.

3.  The Applicant only named the Hong Kong Government as the Respondent to his application. The power authorizing detention under section 32(2) is conferred on the Secretary for Security. The power to offer recognizance as alternative to detention under section 36 is given to immigration officers. Insofar as necessary, I shall treat both the Secretary and the Director as Respondents to this application.

4.  I gave directions for the Respondents to file an Initial Response, and so as to bring the matter to a hearing on 23 December 2022. At the hearing, the Applicant appeared in person with the benefit of an Urdu/English interpreter. The Respondents were represented by Mr Jeffrey Fong, Government Counsel.

B. Factual Circumstances

B.1 Immigration Status

5.  The Applicant is a Pakistani national born in 1988. He was first sighted and arrested by the Police in Hong Kong in 2009, as a suspected illegal immigrant. As it turned out, he was never granted permission to land in Hong Kong by the Director.

6.  On 9 February 2012, a Removal Order was issued against him. On 7 June 2018, as noted above, a Deportation Order was also issued against him. Both the Removal Order and Deportation Order remain extant as of today.

7.  The Deportation Order was issued under section 20(1), which authorizes the issuance of such an order if an immigrant has been found guilty of an offence punishable with not less than 2 years’ imprisonment or if such an order is deemed conducive to the public good. By the time the order was issued, the Applicant had already been found guilty of such deportable offences.

B.2 Criminal Record and Absconding History

8.  The Applicant was convicted of the following offences:

(1) On 17 June 2011, he was sentenced to 14 months’ imprisonment for taking employment while being a person who remains in Hong Kong without the authority of the Director after having landed in Hong Kong unlawfully.

(2) On 25 July 2013, he was fined HK$400 for obstructing a police officer.

(3) On 18 July 2017, he was sentenced to 11 months’ imprisonment for trafficking in a dangerous drug.

(4) On 4 March 2019, he was sentenced to 4 months’ imprisonment for trafficking in a dangerous drug.

9.  All of these where committed when the Applicant was released on recognizance as alternative to immigration detention authorized by various powers conferred by the Ordinance.

10.  The Applicant failed to report recognizance on three occasions in the past.

11.  The first occasion the Applicant failed to report recognizance occurred on 2 June 2015. On 10 February 2016, he was arrested by the Police for theft. He was eventually not charged by the Police. But the Police were unaware of his failure in reporting immigration recognizance and did not transfer to the Applicant to the Immigration Department (“ImmD”).

12.  The Director only heard of him again on 26 October 2016, when they received a letter from the Applicant, explaining that he could not report recognizance because he was scared that he would be deported. Therefore, the Director did not hear from the Applicant for about 1 year and 5 months.

13.  Recognizance was formally resumed on 6 November 2016.

14.  The second occasion occurred on 15 November 2016, soon after recognizance was formally resumed. The Applicant only resurfaced in about 6 months later, on 13 May 2017, when he was arrested for failing to report for recognizance.

15.  Upon arrest, he explained that he failed to report recognizance as he was arrested by the Police. However, the records showed that he was arrested by the Police on 24 November 2016, more than a week after he had already failed to report recognizance.

16.  The third occasion occurred on 25 July 2019. He resurfaced 1 year and 8 months later when he was arrested by the Police for robbery and failing to carry an identity document on 31 March 2021. Upon checking, the Police discovered that he was as absconder from his immigration recognizance and transferred him to ImmD for handling. The Applicant explained to ImmD that his failure to report recognizance was because he had no money for transportation.

B.3 Non-refoulement Claim (“NRC”) and Related Proceedings

17.  Prior to 14 December 2021, the Applicant’s NRC and related judicial review proceedings had been one of major obstacles putting on hold the execution of the Removal Order or the Deportation Order.

18.  The Applicant indicated his intention to lodge a torture claim as early as 2009. His claim was later processed as an NRC after the implementation of the Unified Screening Mechanism (“USM”) in 2014. By April 2018, the NRC was already rejected by both the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). Thus, all administrative avenues had been exhausted.

19.  In May 2018, he sought leave from the Court of the First Instance (“CFI”) to judicially review the Board’s decision. In July 2020, the CFI dismissed the leave application (“CFI Leave Decision”). In February 2021, the Applicant sought extension of time from the CFI to appeal to the Court of Appeal (“CA”) against the CFI Leave Decision. By then he was already about 6 months out of time.

20.  The present detention commenced on 3 April 2021, when the Applicant’s extension of time application was still pending the CFI’s determination. On 15 June 2021, the CFI refused granting extension of time. In [2021] HKCFI 1537, the CFI noted that the Applicant put forward no reasons to explain the very substantial delay. Nor did he put forward any valid or proper grounds of appeal.

21.  On 22 July 2021, the Applicant renewed his time extension application for appeal before the CA in CAMP 272/2021. The only ground identified in the summons is that he would like to advance “a new sole ground” without identifying what that ground would be. CAMP 272/2021 was dismissed by the CA on 14 December 2021 by letter. As stated in that letter, the dismissal was a response to the Applicant’s own request by letter dated 7 December 2021.

22.  Therefore, by mid-December 2021, there was no extant legal proceedings related to the Applicant’s NRC. Subject to what was revealed by the Applicant at the hearing, it seemed that no further step had been taken by the Applicant in the context of NRC in the past 12 months. The Applicant now says that he has issued a Notice of Motion seeking leave to appeal to the Court of Final Appeal (“CFA”) on 9 November 2022.

B.4 Detention and Reviews

23.  During the 1 year and 9 months’ detention period commencing on 3 April 2021, the detention of the Applicant has been reviewed on 7 occasions by various officers in both the Security Bureau and the ImmD. The reviews were conducted in June 2021, August 2021, November 2021, January 2022, May 2022, August 2022 and December 2022. On each of the occasions, continued detention was recommended. The grounds for continued detention are (i) the Applicant’s removal is going to be possible within a reasonable time, (ii) he may constitute a threat/security risk to the community, (iii) he may abscond and/or re(offend), (iv) he does not have close connection or fixed abode in Hong Kong and (v) there are no other circumstances in favour of his release.

24.  As reflected in the internal minutes for those reviews, the Secretary/Director consistently placed weight on his criminal records, absconding history and his being arrested for suspected crimes multiple times while on recognizance. As time passed by, they also took note of the conclusion of CAMP 272/2021, the issuance of the emergency traveling document, the planned removal in September 2022, the progress of resolving the bail money issue and the imminent removal now scheduled for tomorrow.

B.5 Progress towards Removal

April 2021 to December 2021: NRC and related proceedings

25.  Until the recent update on 7 December 2022, the Director’s removal policy was that a person otherwise liable to be removed would not be removed if there is an ongoing NRC or related court proceedings which would be seen as a legal impediment to removal.

26.  Thus, during the first 9 months or so of the present detention period, one of the main obstacles towards removal was the Applicant’s attempt to seek extension of time first from the CFI and then from the CA to appeal against the CFI Leave Decision about 6 months out of time.

27.  Mr Fong submitted that, both time extension applications were clearly non-meritorious, as reflected in the Court’s refusals. Therefore, at the time pending the CFI and then the CA’s refusal, the Director/Secretary was entitled to consider that the proceedings could be disposed of within a reasonable time.

28.  Thereafter, the remaining obstacle towards removal was the Applicant’s passport which expired in November 2021.

January 2022 to August 2022: obtaining replacing travel document

29.  The Director first sought the Pakistani Consulate General’s assistance to issue an emergency travel document to the Applicant on 25 April 2018. The Consulate replied that such a document would be issued as and when approached. On 27 April 2018, the Applicant attended an interview at the Consulate, which verified the Applicant’s identity. As the chronology already indicates, these steps occurred years before the present detention commenced on 3 April 2021.

30.  After April 2018, there appeared to be a substantial period when this issue had not been actively pursued by the Director. But, of course, the Court’s focus is now on the period after mid-December 2021, when there had been no extant NRC related proceedings and the expired passport became the only remaining obstacle towards removal. ImmD received the CA’s letter dismissing CAMP 274/2021 on 23 December 2021, about two weeks after the date of the letter.

31.  It appears that ImmD had only resumed active liaison with the Consulate on this matter on 3 May 2022. Therefore, there was a period of about 4 months when this matter was left unattended to after ImmD was made aware of the CA’s dismissal. This was so even though the Director’s own records showed that from around mid-December 2021 to April 2022, the Applicant consistently indicated his willingness to be returned to Pakistan multiple times upon being interviewed.

32.  But from 3 May 2022 onwards, records showed that ImmD had resumed active liaison with the Consulate for the purpose of obtaining an emergency travel document for the Applicant.

33.  On 26 May 2022, the Applicant completed documents for travel document application and had taken photos for such purpose.

34.  On 2 June 2022, ImmD had submitted the relevant documents and the photo to the Consulate.

35.  From June to August 2022, ImmD continued to urge the Consulate’s assistance for issuing such a travel document to the Applicant. Indeed, an emergency travel document was issued on 26 August 2022 with a validity period of 30 days.

September 2022 to November 2022: bail surety issue

36.  After obtaining the emergency travel document, a removal operation was first planned for the week of 12 September 2022. However, that plan could not be put into effect.

37.  The Applicant became unwilling to cooperate because he wanted to have some of his property previously handed to or seized by the Police to be returned to him first. The property included a cash deposit of HK$10,000 which stood as his bail money, as well a jacket and two mobile phones. It appeared that later on the Applicant only focused on the bail money.

38.  After some liaison with the Police, it transpired that the HK$10,000 bail money was forfeited by the Police because the Applicant had failed to report to the Police since 1 May 2021. One would note that by that time, the present immigration detention had already commenced which presumably prevented the Applicant from reporting to the Police. The Police had applied to the courts to have the bail money forfeited on 6 June 2022 which was granted on 9 June 2022. Subsequently, having clarified the situation, the Police applied to the courts for the Applicant’s bail money to be returned. Eventually on 22 November 2022, the bail money was returned to the Applicant.

39.  The Applicant made complaints to the Complaints Against Police Office (“CAPO”) regarding his bail money and was interviewed for this purpose at the time.

40.  After the bail money issue and the related CAPO complaint was settled towards the end of the November 2022, the Applicant intimated that, still, he was unwilling to return. He would pursue his case via habeas corpus application or further judicial review proceedings.

41.  As a matter of fact, this habeas corpus application was issued on 23 November 2022.

Next removal scheduled on 24 December 2022

42.  On 25 November 2022, the Applicant’s emergency travel document was extended up to 25 December 2022.

43.  As it now stands, the Director has already booked a seat for the Applicant on a repatriation flight scheduled for 24 December 2022, i.e. tomorrow.

C. Applicable Principles

44.  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 this case.

45.  The summary is as follows:

(1) The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2) An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3) What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4) The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court. But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5) Either continuing detention is reasonable and so lawful, or it is not. Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6) Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7) The burden of showing that detention is lawful lies upon the Secretary and Director.

(8) The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9) Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10) A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11) It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period. This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12) Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful. Reference to the facts of other cases is also likely unhelpful.

(13) Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it. Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14) The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15) This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16) However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17) The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18) The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19) Neither risk can justify detention of any length, as that would permit indefinite detention.

(20) The longer the detention, the greater the risk necessary to justify it.

(21) The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22) When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23) There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24) As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25) On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts. The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

46.  I have applied those principles as applicable to the particular circumstances of this case.

D. Applicant’s Submissions

47.  In his affirmation/written submissions filed in support of his application, the Applicant stated the grounds of his application as being that the detention has become unreasonable and therefore unlawful, as the detention is a breach of the Hardial Singh principles. The bulk of the submissions is legal principles which would generally apply in habeas corpus applications of this type, without explaining how those principles could apply to his own case. Some are general points without much elaboration. But some points appear to be attempts to rebut the grounds relied upon by the Secretary/Director’s in recommending continued detention as shown in the various Notices of Review of Detention served on the Applicant. Trying my best to understand it, what the Applicant said in his affirmation may be summarized as followed:

(1) The length of his detention, which commenced on 1 April 2021 [sic] is exceptionally long, with no sufficient risk to justify such lengthy detention.

(2) He has been detained for 20 months and yet there is no prospect that his removal would be finalized in the near future.

(3) There is no reason to believe that his legal proceedings could be completed within a reasonable period of time, and he still has proceedings to attempt.

(4) The Applicant will not be removed with a reasonable period of time, in breach of HS3.

(5) The Applicant was not detained for the purpose of removal, in breach of HS1.

(6) The Director has been slow in processing his removal.

(7) The reasons given for detention appear to have evolved.

(8) The Director should not detain him on the hypothetical case that he “may abscond”. He had never escaped from custody as the Director had asserted.

(9) The Director said he may pose risk to the community. Again, the Director should not consider what may or may not happen. He does not have any triad background.

(10) The Director did not explain what are the possible circumstances that may favour release on recognizance.

(11) The Director should take into account other factors such as the effect of detention on the deportee, particularly on his psychiatric or other medical conditions, and the conditions of detention when the detainee has to be detained in a prison facility.

(12) The Applicant has no history of violence and has no adverse disciplinary records throughout his time when he was detained at Castle Peak Bay Immigration Centre.

48.  At the oral hearing, the Applicant helpfully handed in and relied on several handwritten pages of further submissions, which can be broadly summarised as follows:

(1) The period of detention to date is 630 days.

(2) The Applicant does not agree with decision for continued detention made on 14 December 2022 (where the content of the Notice of review of detention provided to him is copied out in the submissions and responses are provided to the individual points).

(3) As regards whether there are outstanding proceedings hindering deportation, the Applicant says that he has filed a Notice of Motion on 9 November 2022, seeking leave to appeal to the CFA from the decision of the CA in CAMP 272/2021 given on 14 December 2021. I note the content of the Notice as trailed in the submissions seems to focus on why it is dangerous for him to be returned to his country of origin.

(4) Because he filed that Notice of Motion before the updated removal policy came into effect, the updated policy does not apply to him.

(5) He also has an unlawful detention damages claim in the District Court, issued against the ImmD.

(6) He does not pose a threat or security risk to the community, and has not since his lengthy period in Hong Kong after he arrived from his country of origin.

(7) He has already served the sentences of imprisonment given by the courts, repaying his debt to society. To detain him further does not benefit any personal government department.

(8) He is sorry for the disciplinary incidents whilst in detention.

(9) Despite the previous absconding, the point must have been reached when the risk of absconding can no longer be said to justify the detention is reasonable. Anyway, he will follow every term and condition imposed if released on recognizance.

(10) He will also modify his behaviour in future so as to avoid the risk of reoffending.

(11) He has refused to cooperate with removal arrangements on 22 September, 20 October and 15 November 2022 because he is concerned that he might be removed at any time, when his problems have not been solved and his life remains in danger if returned to his country of origin.

(12) He is willing to provide the name and telephone number of a guarantor.

49.  I will bear all these points in mind in my overall assessment below and make references to them as appropriate.

E. Whether Detention Has Become Unlawful

50.  There was and remains prima facie lawful authority for the detention of the Applicant. The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

51.  The starting point is the Applicant has already been detained for the period of 630 days, or about 1 year and 9 months. This period is undoubtedly a very lengthy period. It is against this lengthy period that the other factors are to be weighed and balanced.

52.  I accept that the Secretary/Director intend to deport the Applicant and have been only using the power to detain for that purpose. HS1 is satisfied.

53.  I have some hesitation in accepting that the Secretary/Director have acted with reasonable diligence and expedition to effect removal throughout the entire period. As indicated above, there was a period of 4 months where the Applicant had no extant NRC or related court proceedings, but the Director did not seem to be doing anything to pursue the issuance of the Applicant’s replacement travel document (even after, as the applicant says, he requested return in December 2021 after the CA decision).

54.  But otherwise, the chronology canvassed above clearly shows that the Director has been actively seeking to effect the Applicant’s removal, including by actively seeking the issuance of a replacement travel document for the Applicant, planning for the first repatriation attempt in September 2022, liaising with the Police to resolve the bail money issue, seeking extension of the validity of the emergency travel document, and rescheduling a further repatriation operation on 24 December 2022.

55.  I also note that, even in that 4 months, the Director was still interviewing the Applicant on multiple occasions to ascertain his intention to return to his home country. On balance, whilst I would think that the Director could have been more active pursuing the Applicant’s removal, I have come to the view that HS4 is satisfied in the overall circumstances.

56.  I acknowledge that 1 year and 9 months is a very substantial period. In the 9 months from April to December 2021, I agree with the Director that it was not unreasonable to expect that the Applicant’s two extension of time applications, which apparently lacked merits, would be disposed of by the CFI and the CA reasonably quickly.

57.  I have already noted that in the following 4 months from January 2022 to April 2022, the Director could have acted more diligently but since the expired passport was the only obstacle standing in the way of removal, it was not unreasonable for the Director to expect that removal could be effected within reasonable time. From May 2022 to August 2022, progress was then made for the issuance of the emergency travel document.

58.  Then the first removal operation planned for September 2022 was obstructed by the bail money issue, which was not resolved until about the time this habeas corpus application was issued.

59.  In any event, there is now nothing preventing the Applicant’s imminent removal rescheduled for tomorrow except this habeas corpus application. I do not think the damages claim mentioned by the Applicant creates any impediment to removal (and I record that Mr Fong said on instructions that the ImmD has no knowledge of such a claim). The last-minute attempt to create a further impediment to removal by the application for leave to appeal to the CFA – which was issued many months out of time and only after the Applicant was due to have been removed on 22 September 2022, and which any event unlikely has any real merit – is not an impediment to removal under the updated removal policy. The Applicant is mistaken in thinking that the policy does not apply to him simply because he made that last-minute attempt before the updated policy came into effect.

60.  Overall, I have come to the view, again on balance, that for at least most of this detention timeline it was reasonable for the Director to hold the view from time to time that removal would be possible within a reasonable time. It must, however, be stated – and Mr Fong accepted that it cannot be gainsaid – that hindsight has revealed that such a view was misplaced, and obviously that has contributed to the unfortunately very lengthy period of detention to date.

61.  Mr Fong further submitted that the risk of absconding, the risk of re-offending and the threat posed to community are factors of weight pointing towards continued detention. I agree they are of some weight, in particular the risk of absconding. The Applicant absconded on three occasions, and the time taken for the Director to locate the Applicant ranged from about 6 months to about 1 year and 8 months. On each occasion, he did not provide any good explanation for absconding. If the Applicant were to be released on recognizance and then abscond, that would frustrate the purpose of the Deportation Order.

62.  The Applicant has also committed 4 offences including offences of a serious nature, such as trafficking in dangerous drugs. I agree that this is a factor also in favour of detention.

63.  This is a case not without difficulty as to where the proper exercise of judgment lies. But, assessing all the factors against the lengthy detention period of 1 years and 9 months, and having also taken into account that there is no legal impediment to removal, that there is a valid travel document, and that the repatriation has been scheduled for tomorrow (so that the Applicant would be released from detention upon repatriation tomorrow), I am just persuaded that I should not order his release from detention today, as the detention has remained lawful and will remain for a period which is lawful. HS2 and HS3 are satisfied.

F. Result

64.  It was for the above reasons that I dismissed the Applicant’s application for a writ of habeas corpus, with no order as to costs.