ATIF MUHAMMAD v. HONG KONG SAR GOVERNMENT

HCAL 139/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 139 OF 2014

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R E A S O N S   F O R   J U D G M E N T

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1.  This is the applicant’s application for the issue of a writ of habeas corpus, which was filed with the court on 21 October 2014.

2.  The applicant is a Pakistan national and was arrested on 1 August 2014 for illegally remaining in Hong Kong.  He then filed a non-refoulement claim and has been detained by the Director of Immigration (“the Director”) since 1 August 2014 at the Castle Peak Bay Immigration Detention Centre (“CIC”).

3.  At the court’s directions, the putative respondent appeared in these hearings and was represented by Mr Lawrance Chan of the Department of Justice.

4.  The hearing was first held on 23 October 2014. It was then adjourned, and subsequent hearings were held on 7 and 18 November 2014 to enable the parties to file further evidence.  These were necessitated because the applicant at the first hearing raised a number of assertions to support his contentions that the Director has intentionally refused to grant him “bail” as a punishment for his raising a complaint during a visit by a Justice of Peace (“JP”) at the detention centre.  He also said at the hearing that he had a brother in Hong Kong, and thus there should be no risk of allowing him “bail” pending the determination of his non-refoulement claim.  The court therefore gave him time to file further evidence in support of the assertions and for the Director to reply.

5.  After the last of these hearings, I refused the application with brief reasons.  I said I would provide a more detailed written reasons later.  This is what I now do.

THE FACTS

6.  The applicant first arrived in Hong Kong on 11 July 2014 via the Lowu control point and claimed non-refoulement protection. He was refused permission to land and was detained.

7.  He then withdrew his non-refoulement claim through the Duty Lawyer Service (“DLS”).  The applicant was then repatriated to the Mainland on 1 August 2014.  However, he was arrested by Police in Hong Kong late night on the same day for illegal remaining.

8.  On 4 August 2014, he lodged his non-refoulement protection claim (for the second time: see above).  He has opted for legal representation by DLS.  The applicant was first initially interviewed by an immigration officer on 12 August 2014.  He was given the relevant documentary information relating to the lodging and the process of non‑refoulement claims.  He was informed that he was required to file his completed Non-refoulement Claim Form (“NCF”) within 28 days as part of the formal process.

9.  On 2 September 2014, the Immigration Department sent a letter to DLS reminding the applicant that he should return the completed NCF by 10 September 2014.

10.  On 8 September 2014, the applicant’s duty lawyer requested for a 21-day extension of time to submit the completed NCF as there was difficulty to complete the NCF by the deadline.

11.  Time to file the completed NCF was then extended to 3 October 2014.

12.  In the meantime, the applicant on 17 September requested by letter the Immigration Department a reply as to his non-refoulement claim, and on 18 September asked to be “bailed” out.  The Immigration Department on 24 September sent a reply to the applicant requesting him to return the completed NCF, and forwarded the applicant’s above letter dated 17 September to the DLS.

13.  On 3 October (the original extended deadline for filing the competed NCF), the applicant’s duty lawyer wrote and applied for a further 14-day extension of time to submit the completed NCF, as their scheduled meeting on 16 September with the applicant had to be rescheduled to 30 September 2014 due to the hoisting of typhoon signal number 8.

14.  The Immigration Department extended the time to 17 October.

15.  On 17 October, the completed NCF was received by the Immigration Department.

16.  On 21 October (ie, the day the applicant made the present habeas corpus application), the Department scheduled the screening interviews with the applicant to be held on 27 October and 5 November.  However, due to the non-availability of the duty lawyer, the interviews were rescheduled to 1 and 2 November.

17.  Eventually, the screening interviews were held at CIC on 1 and 2 November.

18.  On 12 November, the Immigration Department served a Notice of Decision (“the Notice of Decision”) on the applicant, rejecting his non-refoulement.

THE PRESENT APPLICATION

19.  It is trite that in determining the merit of an application for a writ of habeas corpus, the fundamental question that the court has to decide is whether the detention is unlawful, and there are two aspects of it.  First is whether there is legal authority to make the subject detention under the proper and relevant laws or legislations, and secondly, whether the applicant has since been detained for such an unreasonably long period of time which renders an initially lawful detention unlawful.  See respectively Fidelis Aqhuwaraezeama Emem v Superintendent of Victoria Prison [1998] 2 HKLRD 488 at 453C-D and 455A-B per Stock J (as he then was) and R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 at 706D-F as applied in Hong Kong by the Court of Appeal in A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752, at paragraphs 26-31.

20.  In this case, it is not challenged that the Director has initial proper lawful authority to detain the applicant since 1 August 2014 under s 32(1)(a) of the Immigration Ordinance (Cap 115) (“the IO”) pending removal under s 18(1)(a) thereof.  There is also power for an immigration officer to detain him for inquiry under s 26 of the IO[1]. Thereafter, the Director also has lawful authority to continue to detain the applicant under s 37ZK of the IO pending the final determination of his non-refoulement claim.

21.  Insofar as the present application is concerned, the applicant’s only ground in support of the application (as set out in his affirmations) is basically that he has been detained for an unreasonably long period of time since he has made his present non-refoulement claim on 4 August, as there was yet (at the time of his habeas corpus application) to be a determination thereof.

22.  I am not persuaded by the applicant’s contentions for the following reasons.

23.  The legal principles governing whether a detention is unlawful as it has been made for an unreasonably long period are well established, and can be summarised as follows.

24.  The statutory power of detention is generally one which is impliedly limited to a period which is reasonably necessary for that purpose: R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 at 706D-F[2].

25.  The Director has a discretion in respect of the continued detention of a person pending his deportation.  Pending deportation means no more than “until” deportation, and so long as the Director is intent upon removing a person at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31.

26.  What is reasonable is dependent on the circumstances of each case and is not to be assessed with hindsight: Mahesh Rai, supra, at paragraphs 16-17.

27.  Applying these principles, the period of the applicant’s detention so far cannot be said to be unreasonably long when viewed in the circumstances of the present case:

(1) From the facts as at the relevant time as summarized above, there is nothing that can show that it was unreasonable for the Director to be under the view that the applicant’s non‑refoulement claim could be determined expeditiously within a reasonable time, and thus the applicant would be either released from detention (if the applicant was successful) or returned to Pakistan (if unsuccessful) also within a reasonable time.  This should also be viewed in the context that the applicant had previously come to Hong Kong in July 2014 but withdrawn voluntarily his then non-refoulement claim.

(2) The fact that the present non-refoulement claim’s process had been delayed by events beyond the control of the Director on an ad hoc basis[3] could not in my view render unjustified the Director’s view at each of those occasions that the claim could be determined within a reasonable time.  There is nothing to show that the Director should and could foresee these ad hoc postponements.  It is surely not the applicant’s case that these reasons are self and pre-meditated and would bound to continue (and if that was the case, I cannot see how this would then justify the applicant’s habeas corpus application by deliberately lengthening his own detention himself).

(3) In these circumstances, there were reasonable basis for the Director to believe at the relevant time that the non‑refoulement claim could be determined within a reasonable time.

(4) In any event, the applicant has recently been served with the Notice of Determination informing him that his non‑refoulement claim is rejected by the Director.

28.  The applicant by way of his three affirmations has raised in gist the following relevant matters and grounds to say why he has been detained unreasonably wrong.

29.  First, it is said that the immigration officers have sought to punish him after he made a complaint to the visiting JP on 23 September 2014 about the slow progress of his claim and asked to be released[4].  The applicant says this is supported by the facts that after the said incident of complaint:

(1) The welfare officer was unhappy about the above complaint and asked him why he had made such complaint, and the officer said that he would no longer be able to offer him any help.

(2) He was moved from 5^th floor of the dentition centre to the 7^th floor and has been assigned a different case number (one with a prefix of “INEC”), which is different from the case number he was initially issued with (with a prefix of “RBCL”).  He asserts RBCL prefixed number is to be given to those non-refoulement claimants who are “caught overstay [sic] or illegally in Hong Kong, and he/she gets the RBCL no directly and CIC can release them anytime/anyday.  Because there is no restriction in the release of any person if he/she is having RBCL No.”[5]

(3) There are other non-refoulement claimants previously kept in CIC with him whose claims had been dealt with much quicker, say like 40-50 odd days, but his claim had not been processed as quickly.

30.  The Director has filed evidence to, among others, explain that (a) “RBCL” is used by Immigration Department’s Clearance Section (“CLS”)[6] as prefix to file reference in paper record[7], whereas, “INEC” is a designated prefix used by CIC[8], (b) when the applicant was referred to CLS, a file under reference RBCL 2167/14 was opened for his detention case, (c) the applicant was admitted to CIC for detention on 5 August 2014, at which time another file reference under INEC 3084/14 was created.  Further, the change of floor was purely a matter of management and has nothing to do with the JP complaint[9].

31.  It is pertinent to also note that how quick a non-refoulement claim could be processed and determined must be dependent on the circumstances of each case.  Thus, the fact that there are some claimants whose claims could be dealt with quicker alone could not show that there has been deliberate slowing down of the processing of the applicant’s in this case.

32.  The applicant’s said allegations must therefore be viewed against the history of the matters I have summarised above.  From those summarised facts, it is objectively clear that the Director proceeded promptly to deal with the applicant’s claim after he made it on 4 August.  By 12 August, he was given an initial interview and all the necessary forms and explanatory documents together with the NCF for him to complete and file to proceed with the claim.  He was also provided with legal representation through DLS.  However, the completed NCF was only received on 17 October on no fault of the Director.  Screening interviews were then arranged promptly for 27 October and 5 November, which had to be rescheduled, in fact forward, to 1 and 2 November.  The interviews were then held on those dates.

33.  Viewed in the context of these facts up to 27 October (when the applicant made the present application), and even thereafter, I cannot see any justifications to say that the Director or the immigration officers had been delaying to process the applicant’s non-refoulement claim.  I therefore do not accept the applicant’s assertion that the Director had deliberately slowed down the process of his claim in order to detain him longer.

34.  Second, the applicant said for the first time at the hearing that he has a brother in Hong Kong, who apparently could provide him with accommodation and thus it is not right for the Director not to give him bail.  He then confirmed this in his 2^nd affirmation.

35.  However, this matter has nothing to do with the question of whether at the relevant time the Director could reasonably form the view that the applicant’s claim could be determined within a reasonable time.  It therefore cannot be a matter that would affect the lawfulness of the detention, which is the question that needs to be considered under this application.

36.  For all the above reasons, I accept that there is ample evidence to show that at the relevant time, the Director has intent upon removing or releasing the applicant at the earliest possible moment upon the determination of the non-refoulement claim, and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove or release the applicant within that reasonable period of time.  There is thus no unlawfulness in the detention so far.

37.  I therefore refused the habeas corpus application with no order as to costs.