IQBAL NASIR v. DIRECTOR OF IMMIGRATION

HCAL 871/2022

[2022] HKCFI 3057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 871 OF 2022

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BETWEEN

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D E C I S I O N

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A. Introduction

1.  The Applicant is currently held in immigration detention, pending his removal from Hong Kong pursuant to a Removal Order made on 5 September 2017. He is currently held pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). The present period of detention commenced on 21 April 2022, and to date has lasted around 5½ months, or 166 days.

2.  The Applicant now applies for writ of habeas corpus, on the grounds set out in his supporting affirmation, which state [sic]:

1. The Present detention is unlawful.

2. I have been detained since 21-April-2022 till now and it is quatter of 5^th months. I am now detained under s32 i.e. pending for removal.

3. I wish to stay in Hong Kong untill all the claims are completed.

4. My USM claim is at 2^nd J.R. under HCAL 1554/2021.

5. I should not leave Hong Kong until it is completed.

6. I am presently detained pending for my noon-refoulement claim and not pending removal. it is possible to remove me within a short reasonable period. Therefore, the present detention is unlawful.

7. I shall not run away.

8. I cannot go back to my home country because I have real risk of my safety. My life is in danger in my country. I beg to say please issue of a writ of habeas corpus for my release from detention.

3.  I gave directions for the matter to come to today’s hearing. Those directions included for the Respondent (“Director”) to provide an initial response to the application, and for the Applicant to have leave to file a reply to that initial response. The initial response was filed, but the Applicant has not filed any reply.

4.  At the hearing, the Applicant has appeared in person (with the benefit of an Urdu interpreter). At the hearing, the Applicant made oral submissions, mainly on the topic of his medical condition affecting his foot. The essence of his submissions was to ask for release from detention so as to obtain further or better treatment, to say that he will not make any further mistake, and to seek to explain why he had not kept to a previous recognizance (see below).

5.  The Director has been represented by Mr Andrew Tong, Senior Government Counsel (Acting), who also signed the initial response/skeleton argument, on which he placed reliance at the hearing.

6.  This is my Decision.

B. Background Facts

B.1 Immigration Status

7.  The Applicant is a Pakistani national. On 31 October 2009, the Applicant was arrested by the Police for being an illegal immigrant, and he claimed to have entered Hong Kong illegally by boat on that day. On 4 November 2009, the Immigration Department (“ImmD”) refused him permission to land in Hong Kong.

8.  As already stated, the Applicant is now subject to a Removal Order, issued on 5 September 2017. It was issued under section 19(1)(b) of the Ordinance. The Removal Order has remained in force throughout.

9.  The power to detain pending removal under such a removal order is to be found in section 32(3A) of the Ordinance, which provides:

A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.

B.2 NRC and intended JR

10.  On 4 November 2009, the Applicant lodged a torture claim. On 10 February 2014, he was informed that his torture claim would be treated as a non-refoulement claim (“NRC”) lodged under the unified screening mechanism (“USM”) and assessed on all applicable grounds.

11.  On 10 September 2015, the Director rejected the Applicant’s NRC.

12.  On 15 September 2015, the Applicant filed a Notice of Appeal/Petition with the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

13.  On 11 August 2017, the Board dismissed the Applicant’s appeal/petition.

14.  On 21 August 2017, the Applicant filed an application for leave to apply for judicial review (“JR”) against the Board’s refusal decision, in HCAL 531/2017.

15.  On 14 May 2018, leave to apply for JR was refused by the Court of First Instance in HCAL 531/2017.

16.  On 24 May 2018, the Applicant filed a Notice of Appeal in CACV 183/2018, seeking to appeal against the refusal of leave. The Court of Appeal dismissed that appeal on 13 August 2018.

17.  On 28 August 2018, the Applicant filed a Notice of Motion seeking leave to appeal from the Court of Appeal. That was dismissed on 30 November 2018.

18.  On 6 December 2018, the Applicant filed a Notice of intended application for leave to appeal. That application was dismissed by the Appeal Committee of the Court of Final Appeal in FAMV 99/2018 on 9 August 2019.

19.  On 16 June 2021, the Applicant requested to make a ‘subsequent claim’ (“SC Request”), which was subsequently refused by the Director on 4 October 2021.

20.  On 10 November 2021, the Applicant filed an application in HCAL 1554/2021, seeking leave to apply for JR against the refusal of the SC Request.

21.  On 12 January 2022, leave to apply for JR was refused, and at the same time a Restricted Proceedings Order (“RPO”) was made against the Applicant to prohibit him from, amongst other things, commencing any fresh proceedings or continuing any existing legal proceedings relating to NRC unless with leave granted by the Court of First Instance.

22.  Whilst the RPO does not prohibit the Applicant from making his habeas corpus application, his NRC and related intended proceedings have ceased since January 2022.

B.3 Periods of Detention and Reviews

23.  The Applicant had been subject to three brief periods of detention under the Ordinance: (1) 3-4 November 2009; (2) 3-27 October 2017; and (3) 21-26 June 2021.

24.  The last of those periods arose as follows. After the CFA dismissed the Applicant’s appeal in FAMV 99/2018 on 9 August 2019, the Applicant failed to report recognizance since 22 August 2019. He absconded for 22 months before showing up at the Recognizance Reporting Office on 21 June 2021, seeking to resume recognizance, which was permitted on 26 June 2021. His explanation given then for absconding was that he did not want to be arrested and sent back to his home country. This afternoon he has in substance repeated that point.

25.  The present period of detention commenced on 21 April 2022, when ImmD ceased the Applicant’s recognizance. As stated above, he has been detained since then under section 32(3A) of the Ordinance pending his removal from Hong Kong.

26.  Whilst on 6 May 2022, the Applicant had indicated that he was willing to return to his home country, he expressed the change of mind on and since 24 May 2022.

27.  On 24 June 2022, ImmD review the Applicant’s detention. It was decided to continue to detain him on the following grounds: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) the Applicant may abscond and/or reoffend; (3) the Applicant does not have close connection or fixed abode in Hong Kong; (4) there are no other circumstances in favour of the Applicant’s release.

28.  On 30 August 2022, ImmD conducted a further review of detention. It was decided to continue to detain him on the same grounds as previously. The specific factors taken into account included:

(1) The removal of the Applicant from Hong Kong is imminent. The re-entry application is in process, and could be completed within a reasonable period of time.

(2) The Applicant has no outstanding claim or impediment to removal.

(3) The Applicant had failed to report recognizance shortly after the CFA dismissed his appeal and for a period of approaching two years, so as to evade removal from Hong Kong. Based on those facts, there is a real risk that the Applicant may abscond if released on recognizance.

(4) The Applicant had failed to comply with the terms/conditions of recognizance.

(5) The Applicant does not have fixed abode or close connection Hong Kong to make it likely could be easily located.

29.  The Applicant has been provided with the Notice of Review of Detention on 5 September 2022, and its contents were explained to him with the assistance of an interpreter.

B.4 Steps towards Removal

30.  The Applicant’s Pakistani passport expired as long ago as 21 April 2013. On 2 June 2022, ImmD wrote by email to the Consulate General of Pakistan to enquire as to the progress of the issue of a replacement travel document for the Applicant’s repatriation.

31.  On 18 August 2022, a chaser letter was sent to enquire as to the progress of the issue of a replacement travel document for the Applicant’s repatriation.

32.  On 9 September 2022, the Pakistan Consulate verbally confirmed that it would issue an emergency travel document to the Applicant as soon as possible.

33.  Following further efforts on the part of the ImmD, the Pakistan Consulate did issue an emergency passport to the Applicant on 16 September 2022. That passport has validity until 15 October 2022. At the hearing, the Applicant himself handed up a copy of the emergency travel document.

34.  Also at the hearing today, Mr Tong updated the Court with the information that a seat has been booked on a repatriation flight for the Applicant for this coming Friday 7 October 2022.

C. Applicable Principles

35.  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.

36.  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.

D. Merits of Application

37.  The Removal Order issued against the Applicant is extant. The detention of the Applicant under section 32(3A) of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending removal. The question raised by this application is whether the detention has become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

38.  Mr Tong submits that the detention of the Applicant has been reasonable at each stage, and throughout the entire 166 days. He submits that the period is of itself not unreasonable so as to become unlawful so far. Having carefully considered the circumstances, I agree.

39.  First, the Director does intend to deport the Applicant and is only using the power to detain for that purpose. Indeed, the Director intends to remove the Applicant as soon as possible, where there is no legal impediment against removal and emergency travel documents have been obtained. A repatriation flight has been arranged, to effect removal within this week. HS1 is satisfied.

40.  Secondly, the Director has acted with reasonable diligence and expedition to effect removal, including by the obtaining of the emergency travel documents, and by arranging the repatriation flight. HS4 is satisfied.

41.  Thirdly, where there was no legal impediment to removal at any point in the present period of detention, and where efforts have been made to secure the necessary emergency travel documents and flight, the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time. Certainly, he can now be removed within a reasonable period of time – which is the opposite of being able to suggest that the Director would not be able to effect deportation within a reasonable period. HS3 is satisfied.

42.  Lastly, I agree that the risk that the Applicant will abscond if released from detention is high. That risk is of critical and paramount importance in the assessment of the lawfulness of detention, because if the Applicant were to abscond, it would defeat the primary purpose for which the power to detain has been conferred and exercised. Further, the Applicant has no close local connections to Hong Kong, and there seems to be no other factor pointing in favour of release on recognizance. Though the Applicant mentioned today that he would find a person with a Hong Kong identity card to act as a surety, and that he wishes to obtain further or better medical treatment, I do not think those matters are of any significant weight in the current circumstances.

43.  Balancing matters overall – and keeping firmly in mind that the period of detention to date is 166 days – I have no difficulty in concluding that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances. Albeit upon his repatriation, the period of detention will cease on Friday this week. HS2 is satisfied.

E. Result

44.  The Applicant continues to be lawfully detained. The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

45.  I make no order as to costs.