MEHMOOD SAJID v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1441/2023

[2023] HKCFI 2209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1441 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 made on 2 March 2012 and a Deportation Order made on 7 October 2021. He has been held in immigration detention since 28 June 2021 pending his removal from Hong Kong. To the date of hearing, the period of detention has lasted 788 days, or approaching 26 months.

2.  On 17 August 2023, he applied for writ of habeas corpus seeking his immediate release from detention. On 18 August 2023, and in view of the lengthy period of detention, I gave leave for the respondents to file an urgent written response to the application, and the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, the respondents were represented by Mr Alvin Hor, Government Counsel from 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 1974. He entered Hong Kong illegally on 29 August 2009 and was arrested by the police on the same day. On 31 August 2009, he lodged a claim which I shall loosely refer to as a non-refoulement claim (“NRC”) for the present purpose.

6.  Under the then applicable statute and/or removal policy adopted by the Government, the effect of such an NRC was that the Government would be prevented from removing the Applicant from Hong Kong whilst his NRC or any subsequent judicial review proceedings were still pending resolution. This explains why the Applicant’s unlawful stay in Hong Kong – stretching to about 14 years by now – had been tolerated by the Government until fairly recently.

C.  NRC related proceedings

7.  The Applicant’s NRC was based on threats from his relatives arising out of a land dispute in Pakistan.

8.  The Director rejected his NRC in November 2016. The Board refused to allowed him to appeal out of time in May 2017. In the years which followed, the Applicant advanced his claim through the available administrative and judicial avenues, level by level, in an attempt eventually to substantiate his NRC.

9.  By the time the present detention began on 28 June 2021, the Applicant’s NRC had reached the stage of having been rejected by the Court of Appeal (“CA”) in his application for an extension of time to appeal against the refusal of the Court of First Instance (“CFI”) to grant him leave to apply for judicial review. The CA’s refusal was dated 6 January 2021.

10.  By the time the Applicant was taken into detention on 28 June 2021, it might have been thought his NRC related judicial proceedings had been completed, given that no action had been taken in the 6 months since the CA’s refusal. However, on 8 November 2021, about 4½ months after he was taken into detention, the Applicant sought leave from the CA to appeal to the Court of Final Appeal (“CFA”), out of time. By then, the application was more than 9 months out of time. The CA refused the extension of time on 29 August 2022.

11.  Thereafter, no further action was taken for almost 11 months, until the Applicant filed for an application for leave to appeal to the CFA on 25 July 2023. The resolution of that application is pending, but in any event that application is not considered by the Government as a removal obstacle under the new removal policy effective since 7 December 2022. Under the new removal policy, the Government would no longer view a claimant’s NRC related proceedings as an impediment to removal once any subsequent judicial review proceedings have reached the stage of being rejected by the CFI, regardless of the existence of further proceedings.

12.  The net effect of the above is that from the Government’s perspective the Applicant’s NRC relating proceedings ceased to be a removal obstacle since 28 August 2022 – or at latest from 7 December 2022.

D.  Criminal Record & Absconding Record

13.  Being an illegal immigrant and the subject of a Removal Order and subsequently a Deportation Order, the Applicant was and is still liable to be detained pending his removal or deportation from Hong Kong under the Immigration Ordinance, Cap 115 (“Ordinance). But the Director is also empowered to release the Applicant from detention on recognizance.

14.  I am informed that the Applicant was released on recognizance on-and-off throughout the years. It appears that he would otherwise be released on recognizance continuously, but for his failures to report recognizance and his being arrested on that basis or for suspected criminal offences.

15.  The Applicant failed to report immigration recognizance on 6 occasions and in all of them he only surfaced upon being arrested either for his failure to report recognizance or for suspected criminal offences. The absconding occurred (a) from 2 November 2009 to 24 February 2012; (b) 17 December 2012 to 9 July 2013; (c) 25 July 2013 to 23 October 2013; (d) 11 February 2020 to 15 June 2020; (e) 6 May 2021 to 27 June 2021; and (f) 2 March 2018 to 8 May 2018.

16.  It can be noted that the Applicant went ‘underground’ for almost 28 months on the first occasion. On the second to the fourth occasions, he disappeared for periods between 3 and 7 months. (I shall return, below, to what the Applicant says about the absconding record.)

17.  I am also informed that the last record of failing to report immigration recognition was also a record of jumping court bail.

18.  The Applicant was convicted of criminal offences on 4 occasions, each of the offences having been committed while he was released on recognizance:

(1)  On 28 August 2013, he was fined HK$1,000 for theft (shoplifting).

(2)  On 5 March 2014, he was sentenced to 4 months’ imprisonment suspended for two years for theft.

(3)  On 17 March 2016, he was sentenced to a total of 5 month’s imprisonment for theft (shoplifting) and by the activation of his suspended sentence.

(4)  On 11 May 2018, he was sentenced to a total of 12 months and 6 weeks’ imprisonment for two counts of theft (pickpocketing and shop lifting).

E.  Steps towards Removal

19.  When the present detention began on 28 June 2021, the only practical obstacle to removal was the need to obtain a travel document to replace the Applicant’s passport which had expired in 2014.

20.  But, as already noted, on 8 November 2021, the Applicant resurrected his NRC related proceedings by seeking leave from the CA to appeal to the CFA, and doing so 9 months out of time. The effect of that was to resurrect a legal impediment to his removal under the then applicable removal policy for about 10 months, from 8 November 2021 to 29 August 2022 when the application was refused. (The even more belated attempt apparently to resurrect an impediment, last month, does not in fact create such an impediment.)

21.  As to the replacement travel document, I am informed that the Director started liaising with the Pakistani Consulate for this purpose as early as in January 2017, years before the present detention commenced. Written correspondence with the Consulate continued in the few years preceding the present detention. The Applicant was also interviewed on multiple occasions on his willingness to return but he consistently expressed unwillingness.

22.  Correspondence with the Consulate to this end, and interviews with the Applicant to ascertain his willingness to return, continued after he was taken into detention on 28 June 2021. The Applicant repeatedly and consistently indicated unwillingness to return, and had also refused to submit a re-entry application to facilitate the issuance of a passport to him. The Director’s internal records show the Applicant had refused to submit a re-entry application on 4 April 2022 and 5 July 2022.

23.  In view of the Applicant’s refusal to submit the re-entry application, the Director started from July 2022 to explore with the Consulate alternative means to enable the Applicant’s re-entry to Pakistan. Letters were sent for this purpose on 19 July 2022 and 31 August 2022.

24.  On 9 December 2022, the Pakistani Consulate issued an Emergency Travel Document (“ETD”) to the Applicant, expiring in 30 days. From that date, the Applicant was clear of all removal impediments or obstacles – legal or practical.

25.  But the Applicant continued to express strong unwillingness to return and the Director’s internal records show that, on 18 January 2023, the Applicant claimed that he would not cooperate in the removal procedures.

26.  Nevertheless, the Director has since made two attempts to deport the Applicant. The first deportation operation was attempted on 21 February 2023 but the operation was eventually called off as he put up resistance against deportation. The second deportation operation was attempted on 23 May 2023. But this operation was also frustrated as the Applicant became emotional and aggressive and put up a strong physical resistance on the date of departure, forcing the cancellation of the operation.

27.  As it now stands, a third deportation operation has been scheduled for the 28 August 2023 (i.e. next Monday) and an air ticket has been secured.

28.  Ever since the issuance of the ETD on 9 December 2022, the Director has procured the extension of the validity of the document on several occasions to keep it current. The ETD was last extended on 28 June 2023 with its validity period now expiring on 23 September 2023.

F.  Applicable Principles

29.  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.

30.  I particularly bear in mind in the circumstances of this case that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

31.  Exhibited to the Applicant’s supporting affirmation are copies of his medical records and some 40 odd pages of handwritten notes. The handwritten notes could be summarized as thus:

(1)  The Applicant set out his personal background. He came to Hong Kong from Pakistan to seek asylum in 2009. He is a married man with a wife and a daughter, both of whom are also NRC claimants. The wife is an Indonesian national who first came to Hong Kong as a foreign domestic helper but became a NRC claimant in 2015. The daughter is now 7 years.

(2)  He said he has been separated from his daughter for more than 2 years now because of the detention. He is a responsible father and would want to give his daughter his love, especially at her tender age. His daughter needs him.

(3)  His wife also needs him. It is difficult for his wife to take care of the daughter alone, doing all the daily caring works such as taking her to school and picking her up from school.

(4)  He had lost contact with his wife and daughter since he was in detention and if he is now deported to Pakistan, he may lose contact with them forever.

(5)  He admitted that he had made mistakes in the past. He jumped immigration bail, for which he had already paid an expensive price.

(6)  In the context of HS1, the Director cannot use the detention powers for the purpose of safeguarding public safety, which is the job of the police.

(7)  The Director has failed to take into consideration his medical conditions and poor health in deciding to continue to detain him.

(8)  In terms of HS2, he said he has been detained for 25 to 26 months, which has become unreasonably long by reference to HS2. He referred to the case in the late 1980s: Re Romeo Santiago, HCMP 2592/1988 (dated 17 January 1989) where the Judge is reported to have said that a detention of 4 months was a very long time. The Applicant said his detention time was 4 times [sic] longer than that.

(9)  In terms of HS3, he said there is no reasonable prospect of his removal. The Director fails to pinpoint exactly when and how he would be removed. The reference to “within a reasonable time” is insufficient.

(10)  He should not be detained because the Director has failed to point out a “crime” he had committed for which he has been detained since June 2021. He invoked Article 28 and Article 41 of the Basic Law in asserting that his rights against arbitrary detention.

(11)  As to the risk posed to the society upon release, the Applicant referred to various statistics showing that the total number of local residents were far greater than that of foreign nationals/Form 8 holders, in terms of arrest or imprisonment. He said the Director cannot simply work on the assumption that NRC claimants or Form 8 holders pose a security risk or threat to the society.

(12)  As to the risk of reoffending or absconding, he said he is currently detained for no crimes.

(13)  Finally, he said he was ordered to pay a fine of HK$500 in a case, and he will not be able to pay it on time unless he is to be released.

32.  There are also lengthy quotes from various habeas corpus judgments, but without explaining how they should be applied to his case.

33.  As to his family connection, I am informed by the Director that the Applicant’s claimed “marriage” was never registered. Nor was the Applicant registered as the father on the daughter’s birth certificate. Also, both the “wife” and daughter were already repatriated to Indonesia on the 27 June 2018 under their respective removal orders.

34.  At the oral hearing, the Applicant primarily relied upon his earlier written materials but handed up further documents, and he made further submissions, including in reply to the submissions made by Mr Hor. The Applicant said that the further documents spoke for themselves. In my summary of the points made by reference to the documents and otherwise, the Applicant stated:

(1)  On 8 February 2021, the Small Claims Tribunal ordered him to pay the claimant Hospital Authority the sum of $5,865, and costs of $60, with post-judgment interest to accrue.

(2)  On 16 May 2023, the Applicant had a CT thorax relating to right chest wall pain, and the Queen Mary Hospital issued a referral letter seeking expert management.

(3)  On 21 July 2023, HHJ Andrew Li gave case management directions in relation to 2 cases, DCCJ 4035/2021 and DCCJ 485/2022 – in the latter of which the Applicant is the plaintiff suing the Secretary for Justice on behalf of the Director. The case management directions include setting a pre-trial review hearing on 8 May 2024 and a 3-day trial to commence on 3 July 2024.

(4)  On 10 August 2023, the MTR extended the date by which he should settle a surcharge of $500 to on or before 15 September 2023.

(5)  As regards his family, what he has learned at this hearing is the first time he has told that his wife and daughter were deported, despite claiming that he had frequently asked for information about his wife and daughter. He asked why he had not been told before.

(6)  The wife and daughter are important in his life, an important component of his life.

(7)  Each time he may have unintentionally absconded, he always voluntarily later reported and apologised. Sometimes he forgot to report, or had no money to travel to report.

(8)  As regards the absconding between 2009 and 2012, he voluntarily went to the ISS, who assisted him in voluntarily reporting. He was then subsequently released on recognizance again, on the guarantee of Christian Action.

(9)  He cannot be deported, as his life is in real danger. Indeed, he cannot understand why the Director would want to deported.

(10)  Nor can he understand why he has been detained for such a long period of time.

(11)  If you were to be released, he can assure the Court and guarantee that he would always be punctual in signing with the Immigration Department.

35.  I shall bear these points in mind as appropriate in my analysis below.

36.  But, I would note here that whether or not the Applicant should be deported from Hong Kong is not the issue arising on this application. That question arose in the Applicant’s NRC, which he failed to establish – and which, it is obviously fair to say, he did not even pursue with any great apparent enthusiasm.

37.  The Applicant is, and surely understands, that he is liable to be deported under the Deportation Order, which remains valid. He will be deported. The question which arises on this present application is whether the Applicant can continue to be lawfully detained until he is deported.

38.  In that regard, when the Applicant sought to assure the Court that he would always keep the terms of any recognizance, I asked him whether he would go to the airport next Monday for his repatriation flight. He made it clear enough that he would not.

H.  Whether Detention has become unlawful

39.  At all times, the Applicant was detained under various sections of the Ordinance:

(1)  From 28 June 2021 to 20 September 2021, he was detained under section 32(3A) of the Ordinance, which authorises the detention of a person against whom a removal order is in force pending his removal from Hong Kong. The Removal Order remains extant.

(2)  From 21 September 2021 to 7 October 2021, he was detained under section 29 which permits the detention of a person for the purpose of making enquiry as to whether a deportation order should be issued.

(3)  The Deportation Order was issued on 7 October 2021. Thereafter, the Applicant has been detained under section 32(3) which permits the detention of a person against whom a deportation order is in force pending his deportation from Hong Kong.

40.  Thus, there was and remains clear prima facie lawful authority for the detention.

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

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

43.  The starting point is the length of the detention – about 26 months - against which all the other factors must be weighed and balanced. It must be recognised that the period of detention is very substantial indeed.

44.  I have no doubt that HS1 and HS4 are satisfied. The chronology set out above has clearly indicated that the Director has detained the Applicant throughout the period of detention for the purpose of removal or deportation, and has been working diligently and expeditiously towards that end.

45.  The Director has worked persistently towards the issuance of the ETD and renewed it regularly to keep it current, despite the Applicant’s refusal to cooperate in completing the application procedures. Two repatriation operations have already been attempted (but were both frustrated by the Applicants), and the third one has already been put in place.

46.  The period of the present detention has been very long. But I would note that had the Applicant chosen to cooperate in the first repatriation operation, he would have been removed from Hong Kong and thus released from detention by 21 February 2023. By then, the period of detention would still have stretched to a very long time – almost 20 months. But the fact that the repatriation operation was not feasible earlier than that was because of the time taken to resolve the two removal obstacles, which time could have been much shortened had the Applicant not decided to frustrate, hinder or delay his own repatriation.

47.  Arguably, if he had chosen to cooperate in the application for a replacement travel document, the replacement travel document issue might have ceased to be a removal obstacle much earlier than 9 December 2022, so that could his repatriation and release from detention could have occurred earlier.

48.  As to his NRC related proceedings, I have noted that his very late application to the CA for leave to appeal to the CFA had managed to erect and maintain a legal impediment to his own removal for about 10 months. The application was nothing but unmeritorious. In the CA’s decision, [2022] HKCA 1245, it was observed that the Applicant did not provide any proposed grounds for appeal to the CFA, or any reasonable explanation for the substantial delay of over 9 months. The failure to propose any appeal ground at all strongly suggests the application was but a tactical ploy to seek to erect a legal impediment to frustrate, or at least delay, his own removal.

49.  I agree with Mr Hor that the length of the current detention was at least partly attributable to the Applicant’s own conduct. He had consciously and deliberately frustrated earlier removal by refusing to cooperate. The reality of the matter is that the Applicant has been continuously detained up to today essentially as a result of his own choice. He should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonably long. I place significant weight on this matter, pursuant to section 32(4A) of the Ordinance.

50.  Although, with the benefit of hindsight, the total length of detention might have turned out to be longer than the Director had originally envisaged when the detention commenced in June 2021, it does not mean that it was not reasonable to expect that removal could be effected within a reasonable time at each and every point in time in the past. For example, in the period when the NRC-related proceedings appear to have been completed, it was not incumbent upon the Director to imagine that the Applicant would later choose to seek to resurrect the proceedings many months out of time. When that did occur, it was obviously reasonable for the Director to think that an apparently unmeritorious application would be dealt with quite swiftly. Thus, it was not wrong for the Director to have so concluded in each and every of the review of detention conducted on the Applicant (5 in total). Nor was it wrong for the Director to rely on that the Applicant had directly or indirectly prevented or delayed his or her removal as factor in support of continued detention.

51.  I also agree with Mr Hor that the risk of re-offending and absconding is real and substantial. Whilst the criminal record of this Applicant is not amongst the most serious that this Court has seen, the crimes he committed are not to be overlooked, because one of them attracted an imprisonment term of 12 months. It is not unreasonable to guard against the risk that the Applicant, if released on recognizance, might further commit offences leading to terms of imprisonment which might (amongst other things) necessarily delay further repatriation operation.

52.  The Applicant’s history of absconding also does not inspire confidence that he would not abscond if released on recognizance. This Court has recognized that the risk of re-offending and absconding is of paramount importance for absconding will frustrate the very purpose the power of detention is granted in the first place. As already noted, the Applicant has in effect already confirmed that if released on recognizance pending his deportation due to take place next week, he would not turn up for his repatriation flight.

53.  The family matter is obviously of very little weight in the balancing exercise, since his claimed wife and daughter were both repatriated to Indonesia in June 2018. Since then, he has been separated from his wife and daughter because he had chosen to stay in Hong Kong, rather than by the detention. Subject to establishing contact with them, the Applicant would in any event be free to reunite with them after he has been deported from Hong Kong.

54.  Albeit not directly on point, I would point out that the narrative put forward in the affirmation suggests that the Applicant may have taken very little interest in the lives of his wife or daughter. From the documents provided to me, there has been some variation in what has been said by the Applicant about his wife and daughter. For example, having originally claimed that they were married, he accepted that they had not in fact married. I have already noted that the Applicant is not named as the father on the daughter’s birth certificate. I also note that the Applicant claims to have asked for information about his wife and daughter, but one document in the bundle – provided by the Applicant to the Immigration Department – states that he lost contact with them in 2018, which was the time of their removal. The current period of detention began in June 2021. Further, even if the Applicant had sought information about the “wife” and daughter, the fact that they have apparently not sought to contact him perhaps speaks volumes.

55.  As to his health and medical conditions, the stack of medical notes he exhibited to his supporting affirmation is evidence that medical attention was provided to him while in detention. The document headed up this morning also makes the same point.

56.  As to the fine of HK$500 he said he will not be paid on time unless he is released. But this is no impediment to his removal/deportation. Nor is the outstanding judgment debt owed to the Hospital Authority. Further, the District Court actions also pose no impediment to his removal/deportation. The Applicant has not sought to explain the nature of those actions, but in any event he does not need to be in Hong Kong to pursue them, with legal representation or other assistance available to him. This matter is practically no weight in the balance.

57.  As it now stands, the next repatriation operation is imminent. Unless the Applicant is to frustrate the operation as he did on the previous two occasions, he will be released from detention in 4 days’ time, albeit in Pakistan. As I have already said, the Applicant has failed to establish his NRC, the Deportation Order is extant, and the Applicant will be deported. Upon deportation, he will be released from detention – as, indeed, he could have been several months ago. The Applicant should been under no illusion that continuing his efforts to frustrate his removal will somehow improve his chances of being released on recognizance.

58.  Overall, weighing the period of detention – around 16 months – against all the other factors including that repatriation is imminent, I am satisfied that HS2 and HS3 are met.

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

I.  Result

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