AJAZ AHMED v. DIRECTOR OF IMMIGRATION

HCAL 605/2023

[2023] HKCFI 1247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 605 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 Deportation Order made on 9 February 2023. He has been held in immigration detention since 27 January 2023, pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 103 days, or about 3½ months.

2.  On 24 April 2023, the Applicant applied for writ of habeas corpus. On 25 April 2023, I gave directions for the Director to file and serve his response to the application, and so as to bring this application to today’s hearing. At the hearing, the Director was represented by Ms Augusta Wong, Government Counsel from the Department of Justice (“DoJ”) who signed the initial response together with Mr Rex Cheung, Senior Government Counsel. In the initial response, it is said that the response was also prepared on behalf of the Secretary for Justice who, albeit not named as a respondent, was the authority authorising the detention at the beginning.

3.  The Applicant appeared in person with the benefit of an Urdu/English interpreter.

4.  This is my Decision.

B.  Background Facts

5.  The Applicant is an Indian born in 1978.

6.  He first arrived in Hong Kong in August 2010 as a visitor. But he did not depart from Hong Kong within the limit of stay granted to him. He was eventually arrested by the police for overstaying. A removal order was made against him, and he was eventually removed to India in October 2011.

7.  During this period of unlawful stay in Hong Kong, he raised a torture claim which was processed through the then applicable mechanism and was concluded before the removal.

8.  Immigration records show that he then attempted to enter Hong Kong again twice through the legal channel, but was refused landing by the Director on both occasions.

9.  He eventually resorted to entering Hong Kong illegally on 13 May 2012 and raised a torture claim again two days later, i.e. on 15 May 2012. Whilst this torture claim (and another torture claim later raised in 2013) has been processed, his unlawful stay in Hong Kong has been tolerated by the Director. To date, his stay in Hong Kong has stretched to more than a decade.

10.  During his long stay in Hong Kong, he was granted release on immigration recognizance most of the time and was able to live freely in society. But he was requested to report to immigration recognizance regularly. There was one occasion where he failed to report recognizance, on 16 October 2012. The absconding occurred after his first torture claim raised in 2012 was rejected by the Director on 18 September 2012.

11.  He only resurfaced on 11 March 2013, more than five months later, when he was arrested by the police as an absconder. He was then passed to the Director who temporarily revoked the Applicant’s recognizance. Whilst kept in immigration detention, the Applicant raised the second torture claim on 5 April 2013. The Director then released the Applicant again on recognizance in May 2013.

12.  That started a period of recognizance lasting for almost a decade, until it was revoked on 27 January 2023, marking the beginning of the present detention.

13.  The present detention was immediately preceded by a prison term served by the Applicant for his conviction of taking employment while being a person in respect of whom a removal order is in force. He was arrested by the police in an operation against illegal employment in October 2021 and was subsequently convicted and sentenced to imprisonment for 22 months and 14 days. He was discharged from prison on 27 January 2023.

C.  NRC and Related Proceedings

14.  As said, since the Applicant entered Hong Kong illegally in 2012, he has raised two torture claims, one in 2012 and the other in 2013. The first torture claim was rejected by the Director in 2012. The one which still remains relevant for the present purpose is the one raised in 2013. I shall refer to the 2013 torture claim as a non-refoulement claim (“NRC”) as this is how claims of this nature are now known.

15.  The Applicant’s NRC was rejected by the Director in August 2018. He then appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board) which rejected the appeal in October 2019.

16.  In November 2019, he applied to the Court of First Instance (“CFI”) for leave to apply for judicial review against the Board’s decision.

17.  I am informed by the Director that the leave application is still pending the CFI’s disposal. But progress has recently been made and the decision could be expected in the near future.

18.  In February 2022, the CFI asked the Director to supply documents to enable the leave application to be processed promptly. Relevant documents were then supplied to the CFI in the same month.

19.  By letter dated 3 April 2023, the DOJ, on behalf of the Director, informed the CFI that the Applicant is currently held in immigration detention and requested for priority to be accorded to the leave application.

20.  An oral hearing was fixed for 17 May 2023 for the leave application. The DOJ has also been informed by the Court, by letter dated 17 April 2023, that a decision will be handed down as soon as possible, or by end of June 2023. However, Ms Wong informed me that the oral hearing of the application for leave to apply for judicial review has now been re-fixed for 5 June 2023. Though she did not say so, it seems to me to be likely that the decision date would also have been subject to a similar slip of roughly 3 weeks (say, to mid to late July 2023).

D.  Obstacles to removal

21.  As is usual in habeas corpus applications raised by non-refoulement claimants held in immigration detention, the two major removal obstacles are the Applicant’s NRC related proceedings and the need to replace his expired passport.

22.  I have set out above the development of his NRC and related proceedings, and can address the passport position, where the Applicant holds an Indian passport which expired in 2020. I am informed by the Director that although a replacement passport has not yet been issued, good progress has been made.

23.  The Director’s effort to obtain a replacement passport for the Applicant started whilst the Applicant was still in prison. The Director first wrote to the Consulate General of the Republic of India on 16 August 2022. On 5 September 2022, the Indian Consulate confirmed the Applicant’s identity. On 3 May 2023, the Director asked the Applicant to complete the necessary application form and to take a photograph to facilitate his re-entry into India, but the Applicant, as I am told, was not cooperative.

24.  In answer to my question as to how it might be thought that a travel document would be made available for the Applicant, notwithstanding his lack of cooperation, Ms Wong informed me that there have been previous similar occasions when travel documents have been successfully obtained. However, the time it takes is entirely dependent on the process within the Indian Consulate General or other Indian authorities, and it cannot be said how long that might take.

E.  Applicable Principles

25.  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.

F.  Applicant’s Submissions

26.  The affirmation filed by the Applicant in support of his habeas corpus application is short. In so far as I understand it, there he seems to suggest that he would like to be released from detention because he would have to submit some important documents as evidence in support of his judicial review leave application, the hearing of which was originally fixed for 17 May 2023 (but has now been re-fixed to be heard on 5 June 2023).

27.  At the oral hearing, the Applicant handed up some written submissions and further elaborated in oral submissions. In my summary of what he submitted, including partly in answer to questions from the Court, the Applicant said as follows:

(1)  His outstanding application for leave to apply for judicial review remains under processing, and thereafter he would have full rights to face all appeals.

(2)  He has applied – a week or so ago – for legal aid to be assigned a lawyer to assist him with his arguments in that application, and he awaits the outcome of the legal aid application.

(3)  He did not apply for legal aid earlier, notwithstanding that his application was issued in November 2019, because he was awaiting documents from family members, which have not been forthcoming.

(4)  He has, therefore, had to seek documentation about the situation in his home state from other sources.

(5)  Those materials were not readily obtainable by him, since he left that state in 2009 and has only been able to be in touch with persons there indirectly (as direct contact is traced).

(6)  His previous place of residence is still available to him, and his private and official mail is sent there. He has a lump sum deposit on that place, and would not leave. If released, he would be supported through ISS.

(7)  In his home country, he was a high school teacher, and the criminal record which he now has is the first time he accidentally got into trouble by being suspected by a single “heartless” woman constable. Whilst he does not want to argue with the judge who sentenced him, he pleaded not guilty and he would have been found not guilty had he been legally represented.

(8)  In any event, he has served the full sentence, yet he is still determined.

(9)  It is unlikely that he would reoffend, when considering his overall record, including that he has sought to assist Immigration Department and Police (by providing information relating to offences committed by others). He is not a thief or bark, and is no threat to the community.

(10)  He is also unlikely to abscond, bearing in mind he gave a reason for his previous failure to sign (which was as long ago as 2012) and he was released on recognizance thereafter and has not otherwise failed to comply, since that time.

(11)  He needs time properly to prepare for and present his application for leave to apply for judicial review.

28.  I will bear these points in mind in my overall assessment below, and make reference to them as appropriate.

G.  Whether detention has become unlawful

29.  The Applicant was initially detained under section 29(1) the Immigration Ordinance Cap 115 (“Ordinance”), which authorises the Secretary for Security to detain a person for the purpose of making inquiry as to whether he ought to be deported. This period lasted from 27 January 2023 to 9 February 2023, on which date the Deportation Order was made. Thereafter, the Applicant has been detained under section 32(3) which permits the Secretary to detain a person against whom a deportation order has been made, pending his removal from Hong Kong.

30.  There are no apparent irregularities pertaining to the two orders authorising detention and the Deportation Order remains extant. Therefore, there was and there remains clear prima facie lawful authority for the detention of the applicant.

31.  It is important to note that the Court is not concerned on a habeas corpus application with the question as to whether or not the Applicant should be removed from Hong Kong, under the Deportation Order, nor is the Court concerned with the Applicant’s NRC or a consequent application for leave to apply for judicial review – which, in this case, will now be heard in early June 2023. The central question on a habeas corpus application is whether there is, and continues to be, lawful authority for detention – in this case, detention pending removal. The question is answered by looking at whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

32.  The burden is on the Director/Secretary to show that the detention is and remains lawful. When considering that question, the Court acts as the primary decision maker as to the reasonableness of the detainee’s continued detention, involving an exercise of judgment and the balancing of different factors – in accordance with the Hardial Singh principles already mentioned.

33.  The starting point in this case is that the Applicant has been detained up to today for a period of 103 days, or a 3½ months. It is against that period that the other factors are to be weighed and balanced.

34.  I can address and apply the Hardial Singh principles broadly in turn, as follows.

35.  I accept that the Director has always been using the detention powers for the purpose of deportation. HS1 is plainly satisfied.

36.  I also accept that the Director has acted with reasonable diligence and expedition in effecting removal of the Applicant. This is evident from the Director’s effort in liaising with the Indian Consulate to obtain a replacement passport and the effort in expediting the resolution of the Applicant’s judicial review leave application, both of which have been set out in some detail above. In so far as it seemed that the Applicant was criticising the invitation to the Court to give some priority to his judicial review leave application, because he is currently held in immigration detention, that criticism is misplaced. Indeed, it might be thought that the Applicant would be grateful for the speeding up of his application, if it is a genuine application.

37.  Throughout the period of detention, progress has been made in respect of removing both obstacles. The Indian Consulate has confirmed the Applicant’s identity, and it seems that what remains to be done may be only procedural formalities. In light of previous experience from other cases, it may be correct that there is a reasonable anticipation or expectation that a replacement passport would be issued. The question remains however, as to whether it can reasonably be anticipated or expected to be issued within a reasonable time. I acknowledge the point that, if the Applicant refuses to cooperate, then he is to an extent the author of the resultant delay, and I take that into account in my assessment of the relevant central question. Nevertheless, if and when a replacement travel document is to be issued seems to me to be at this point entirely unclear. The matter is outside any real influence – other than general encouragement – coming from the Director. As Ms Wong properly accepted, it is not possible to say how long it might be before such a document is issued. If it is simply not possible to say that, it may be that it is not possible to say that it must be within a reasonable time.

38.  On the judicial review front, the leave application will be heard not next week, but now in early June. Though it is not unreasonable to expect that a decision will be made fairly soon thereafter, not least now that the Court has been made aware of that the Applicant is in immigration detention, the likely timing of a decision on the application would also have slipped towards perhaps the latter part of July 2023.

39.  Against the history, I do not think that the risk of reoffending is particularly high. Further, I note that his single conviction – though of some seriousness, as reflected in the sentence – is not one of violence.

40.  I do agree with the Director that the risk of absconding is not low. The Applicant was already removed from Hong Kong once back in 2011. He attempted to re-enter Hong Kong three times, once through unlawful means. His absconding from October 2012 to March 2013 might also have been triggered by the rejection of his first torture claim and hence the resistance to being removed. But I acknowledge the point that following his explanation for the absconding, he was immediately released back onto recognizance. There is nevertheless some reason to believe that he may abscond if released on recognizance, when his resistance to removal looms large. Absconding would frustrate the very purpose for which the power of detention is granted in the first place.

41.  I also give little weight to the Applicant’s submissions that he wants to be released for the purpose of submitting evidence for the upcoming judicial review hearing. I agree with the Director that the Applicant has failed to particularize in any convincing way what that evidence would be, where it would come from, and why he could not obtain it whilst in detention. Nor is there any real explanation as to why those documents were not available to the Director and to the Board.

42.  I also note, in any event, that the application for leave to apply for judicial review does not in fact identify any proposed grounds of review, so it is difficult to see to what point any further evidence would be relevant – particularly where a judicial review challenge is not to the merits of the underlying decision but to the integrity and lawfulness of the decision-making process. The assessment of evidence and risk of harm were matters primarily falling within the province of the Director and, on appeal, the Board. As Ms Wong submits, any evidence put forward purportedly in support of the Applicant’s NRC, but not proving any public law grounds for judicial review, will simply not assist his leave application.

43.  There is also some force in Ms Wong’s submission that the attempted challenge to the Board’s decision has no obvious merit, and looks like a self-imposed obstacle to deportation. It is likely to be resolved promptly.

44.  I think these various factors lead to a decision which is perhaps finely balanced. Nevertheless, weighing the period of detention – 103 days, or about 3½ months – against all the other factors, whilst I am satisfied that the detention of the Applicant has remained reasonable and lawful to date, I think the future uncertainties as to when the Applicant might actually be removed make it difficult to conclude that the detention will likely remain or continue for a period which is reasonable and lawful. HS2 and HS3 are, therefore, and when taken together, not satisfied.

H.  Result

45.  For these reasons, I allow the Applicant’s application for writ of habeas corpus. I direct that the Applicant be released on recognizance, pursuant to RHC Order 54 rule 4 or the inherent jurisdiction, on terms acceptable to the Director.

46.  I make no order as to costs.