NAEEM MUHAMMAD v. HONG KONG SAR GOVERNMENT

HCAL 1247/2023

[2023] HKCFI 2079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1247 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 dated 28 October 2011 and a Deportation Order dated the 2 June 2023. He has been held in immigration detention since 15 February 2023 pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 177 days or a little less than 6 months.

2.  On 20 July 2023, the Applicant applied for writ of habeas corpus on the basis that the immigration detention has become unreasonable and therefore unlawful. On the 24 July 2023, I gave leave for the respondent to file and serve a written response, and I gave the necessary directions to bring the matter to today’s hearing.

3.  The respondent named on the application form is the Hong Kong SAR Government, which is the party already printed in the empty application forms distributed by the Court. But in the supporting affirmation, the Applicant has identified, in his own handwriting, the Immigration Department as the “Defendant(s)”. In any event, Ms Cassandra Fung, Senior Government Counsel (Ag.) from the Department of Justice (“DOJ”) said she is authorised to represent both the Director of Immigration and the Secretary for Security both of which were involved in making decisions leading to the continued detention of the Applicant till now.

4.  Ms Fung represented the Director and Secretary at the oral hearing. The Applicant appeared in person with the benefit of an Urdu/English interpreter.

5.  This is my Decision.

B.  Immigration Status

6.  The Applicant is a Pakistani national born in 1986.

7.  He arrived in Hong Kong on 18 August 2011 but was refused permission to land the following day after immigration examination. However, for reasons not provided to this Court, he was able to lodge a torture claim by his solicitors on the date of his arrival. As a result, he has been staying in Hong Kong ever since although his initial request to land was refused.

8.  In the following decade until fairly recently in July 2023, he had been pursuing his torture claim – which later became part of the non-refoulement claim (“NRC”) – and related legal proceedings. But he did so in an on-and-off manner.

9.  For the purpose of this application, it is not necessary to go into the details of the legislative and policy regime adopted by the Government concerning whether and when an NRC claimant could be removed. In gist, before the change of removal policy on 7 December 2022, the Government would not remove a claimant as long as he had an extant NRC or some legal proceedings in attempt to challenge a failed NRC which could run all the way to the level of the Court of Final Appeal (“CFA”). After the change of policy, once the NRC has reached the stage of its subsequent judicial review application being rejected by the Court of First Instance (“CFI”), the NRC and related proceedings would no longer be seen as an obstacle to removal.

10.  In Ms Fung’s words, the Applicant has had ‘three rounds’ of NRC already. The first round was rejected by the Director, and the Applicant also failed in his petition the Chief Executive. In the second round, the Applicant exhausted all the administrative and judicial avenues available to him, up to the level of the CFA. The third round came in the form of a “subsequent claim” – meaning a further NRC made after the original claim failed on the basis of alleged change in circumstances.

11.  As of 26 October 2021, the Applicant’s subsequent claim had been refused by the Director and the Board, and had reached the stage of its subsequent judicial review leave application being rejected by the CFI in HCAL 1136/2021. After the change of removal policy on 7 December 2022, the CFI’s refusal has marked the end for the Applicant’s NRC related proceedings in terms of their potential to impede the Applicant’s removal.

12.  After the Applicant was taken into immigration detention in February 2023, and probably in response to that, he did attempt to initiate further proceedings by seeking an extension of time to appeal against the CFI’s refusal in HCAL 1136/2021, on 8 June 2023. The CFI refused to extend time, on 10 July 2023.

13.  Since 7 December 2022, the Applicant has remained “removable” from Hong Kong to Pakistan.

C.  Criminal Record, Previous Detention, & Absconding Record

14.  The Applicant has been convicted of several offences, for some of which he was sentenced to imprisonment. His criminal and sentencing record is as follows:

(1)  On 19 November 2015, he was fined HK$500 for theft.

(2)  On 1 December 2017, he was sentenced to 6 months’ imprisonment for dealing with goods to which the Dutiable Commodities Ordinance applies.

(3)  On 20 October 2020, he was sentenced to 22 months’ imprisonment for burglary.

15.  Besides imprisonment, he has also been held in immigration detention on numerous occasions, presumably for the purpose of making enquiry or pending his removal from Hong Kong pursuant to the Removal Order made on 28 October 2011. These previous periods of immigration detention all ended with immigration recognizance being granted to allow the Applicant to live freely in society, subject to the requirement to regularly report recognizance.

16.  There were 4 periods of previous immigration detention:

(1)  The first period ran from 18 August 2011 to 15 November 2011 – totalling about 3 months – which occurred immediately after his arrival in Hong Kong.

(2)  The second period ran from 18 August 2013 to 4 October 2013 – totalling about 1½ months – which occurred after he was arrested by the police as a wanted person after he had failed to report recognizance.

(3)  The third period ran from 10 February 2018 to 6 March 2018 – totalling about 1 month – which occurred after he was discharged from prison and then transferred to the Immigration Department (“ImmD”).

(4)  The fourth period ran from 6 February 2021 to 20 August 2021, totalling about 7½ months, which also occurred after he was discharged from prison.

17.  The instance where the Applicant failed to report recognizance above was not the only occasion where he absconded. Such failures occurred three times in the past:

(1)  He failed to report recognizance on 5 June 2012 and went underground for 1 year and 2 months until he was arrested on 17 August 2013.

(2)  He failed to report on 13 November 2018 and went underground for 1 year until he was arrested on 19 November 2019.

(3)  He was scheduled to report immigration recognizance on 30 June 2022, but he was arrested by the Customs & Excise Department and was then remanded in jail custody until 6 July 2022. On 12 July 2022, he attended the ImmD to update his contact address and phone number so that he could be contacted for resumption of recognizance. On 4 August 2022, he attended the Immigration office for the investigation of a suspected offence. Ever since then, the Director was not able to contact him on his provided number. The Director considered him absconded since recognizance was not extended beyond 30 June 2022. The Applicant was eventually intercepted by the ImmD on 15 February 2023. If counting from 30 June 2022, he had absconded for 7½ months.

18.  Since his being intercepted by ImmD on 15 February 2023, he has been held in detention pending his removal from Hong Kong.

D.  Steps towards Removal

19.  As the chronology indicates, by the time the Applicant was taken into custody on 15 February 2023, any impediment to removal arising his NRC was long gone.

20.  The only remaining obstacle was his expired Pakistani passport which needed replacement. I am told by Ms Fung that the Director was acting expeditiously and diligently to this end, but the process was unnecessarily prolonged by the Applicant’s refusal to cooperate in completing the application procedures. Ms Fung set out the following chronology:

(1)  The Director’s efforts started with his letter dated 3 September 2013 – which predated the present detention by more than 9 years – to request the Pakistani Consulate to issue a replacement travel document for the Applicant.

(2)  The liaison in this period eventually resulted in the Consulate’s confirmation in 2017 that an emergency travel document would be issued, and the Applicant’s nationality being verified in 2021.

(3)  The Director’s efforts were geared up after the Applicant was taken into detention in February 2023.

(4)  From March to July 2023, the Director interviewed the Applicant on numerous occasions to ascertain his willingness to return and to request him to complete the necessary steps to facilitate the issuance of a replacement travel document. The Applicant invariably expressed unwillingness to return, and consistently refused to complete the necessary procedures, being the filling in of the application form, the taking of photos and the attendance of interviews with the Consulate.

(5)  On 20 June 2023, the Director explored with the Consulate the possible options to issue a travel document despite the Applicant’s uncooperativeness.

(6)  On 27 July 2023, an immigration officer had paid a visit to the Consulate’ office, to impress upon the Consulate the urgency of the matter and to request for priority for this case.

(7)  On 31 July 2023, the Director held a meeting with the Consulate for the purpose of seeking alternative means for the Applicant’s re-entry.

21.  The Director’s persistent efforts eventually bore fruit. An emergency travel document with a validity period of 30 days was issued on 3 August 2023. On 7 August 2023, the Director secured for the Applicant a seat on a repatriation flight fixed for 14 August 2023.

E.  Review of Detention

22.  The Applicant’s detention under section 32 was reviewed by the Director on 27 April 2023 and by the Secretary on 1 August 2023. Continued detention was preferred over released on recognizance on both occasions. The broad grounds relied upon in support of detention as revealed to the Applicant in the “Notice of Review of Detention” are that (a) his removal is going to be possible with a reasonable time; (b) he poses, or is likely to pose, a threat or security risk to the community; (c) he may abscond and/or (re)offend; (d) he does not have close connection or fixed abode in Hong Kong and (d) there are no other circumstances in favour of his release.

23.  His criminal record, including the conviction of burglary leading to 22 months’ imprisonment, and his absconding history were heavily relied upon in support to point (b) and (c) above. There was also emphasis on that his uncooperative in applying for a replacement document has prevented or delayed his removal.

24.  From 5 May 2023 to 1 June 2023, the Applicant was detained under section 29 which authorizes detention for the purpose making enquiry as to whether a deportation order ought to be made. The Deportation Order was eventually made on 2 June 2023.

25.  During the period of detention under section 29, three notices headed “Notice of Detention – Section 29 of the Immigration Ordinance” were also issued the Applicant, informing him the grounds relied upon by the Secretary to detain him for making deportation enquiry. The grounds are broadly similar to those relied on for recommending continued detention under section 32, except the first ground is substituted with that the deportation inquiry is going to be concluded in the near future.

F.  Applicable Principles

26.  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.

27.  Without ignoring the other principles, one key principle to keep firmly in mind is that – when assessing whether a period of detention has become all will become unreasonable and hence unlawful in the circumstances – the weight to be given to particular factors may vary over an extended period of time.

G.  The Applicant’s Submissions

28.  The Applicant exhibited a total of 18 pages of document to his supporting affirmation, 9 of which are hand written notes and the remaining 7 pages are copies of various documents

29.  In the hand written notes, the Applicant first set out some matters in a chronological order leading to the present detention. In the process, he sought to offer an explanation for what was regarded by the Director as his last period of absconding by failing to report recognizance. He said he could not report recognizance (on 30 June 2022) because he was held in police custody. Afterwards, he came to the ImmD office to provide his mobile contact and address and asked the immigration officer when would be his reporting date and time. The immigration officer told him that his case officer would contact him but he was never contacted and the immigration officer came to his address on 13 February 2023 and came again two days later to intercept them.

30.  The next part of his hand written notes appears to offer a point by point rebuttal of the grounds relied upon by the authority to detain him as shown in one of the three “Notice of Detention” under section 29 issued to him. In that notice, the commencing date was wrongly stated to be 11 May 2023 (rather than 5 May 2023), which error was also copied by the Applicant. Trying my best to make out his submissions, they can be summarised as follows:

(1)  In respect of the ground that the deportation enquiry is going to be concluded in the near future, he said no legal actions have been taken to renew his travel document.

(2)  In respect of security risk, he questions how he has become such a risk when he is detained.

(3)  In respect of absconding and reoffending risks, he said he was granted bail by the Magistrate with the sum of $6,000. He had even “won” the police’s latest allegation against him in the Court. He submitted three sets of record of bail proceedings in WKCC 2203/2022 dated 29 June 2022 and 15 March 2023 respectively. The 29 June 2022 record shows that he was refused bail and the 15 March 2023 record shows that he was granted bail with the condition of bail money of $6,000. Cross-referencing these with the other materials, this matter appears to refer to the occasion where he was arrested by Customs and Excise Department on 27 June 2022 for unlawful possession of dutiable goods. He was granted court bail on 7 July 2022 (which record was not provided) and the bail was extended on 15 March 2023. The Applicant was acquitted after trial on 14 April 2023.

(4)  In respect of the lack of close connection or fixed abode in Hong Kong, he said he is currently supported by International Social Service (“ISS”) and he is able to provide $1,000 as self-surety. The Applicant attached an agreement he entered with the ISS for the latter to provide him with rent subsidy of HK$1,500, utility subsidy of HK$300 and food assistance worth of HK$1,200.

(5)  He said there are other circumstances favouring his release. He said he still has legal proceedings in the High Court related to his NRC. The detention is blocking his ability to pursue his claim, by preventing him from obtaining legal advice. He said it is very difficult to obtain legal assistance to know his basic right, being a layperson. He “promised” the Court that he will “automatically exercise [his] legal right of attempt review and further appeal”.

31.  At the oral hearing, the Applicant first relied mainly on what was in his original application and submissions. He also agreed that the appropriate course was for him to hear the main points in submission to be made by Ms Fung, and then to be afforded the usual opportunity to reply to those points.

32.  His first reply point was to explain again why he did not think he had absconded on the last alleged occasion. Subsequently, he produced a long handwritten document (written by him in Urdu) which he said further expanded on the points he wished to make, focusing only on his own position. Those points were interpreted to the court (not exactly word for word, but with the gist of the points and some detail added). In my summary of his points, the Applicant further submitted that:

(1)  There are many immigration laws and rules, including those relating to persons who have made torture claims.

(2)  The limit of detention under section 32 of the Ordinance is 45 days, and detaining him for 177 days is excessive.

(3)  He has not committed any criminal offence since August 2021, and there is no basis for detaining him.

(4)  The Director’s view that he absconded in June 2022 is the result of a misunderstanding, as he has previously explained. He first missed signing because he had been arrested (for an offence where he was subsequently acquitted), and when he reported to explain the position and to provide updated address and telephone number, the immigration officer told him to await a call to come and sign. However, no call was made and no date was given. No law was broken by him.

(5)  He has made a complaint about the police, with a number given.

(6)  As regards the matters taken into consideration in deciding whether or not to release him, as reflected on the notice of review of detention forms, he thinks that they do not point to his continued detention, but should point release.

(7)  If he has really done something wrong to justify detention, he should be told.

(8)  What is happening to him is unfair.

(9)  The Immigration Department is making its own rules, as well as breaking them. Other detainees have been released earlier, or later, or even not at all. There is no consistency, and he is now suffering from that.

(10)  In Hong Kong, there are even animal rights, but it seems that there are no rights for poor people such as himself.

(11)  He cannot be sent back to his country, as his problem remains and he would be killed. Indeed, he asked the question under what international or other rules could he be returned.

(12)  He urged the Court not to send him back.

33.  I will bear all these points in mind in my analysis below as appropriate. But it is worth noting that some of those points are not centrally relevant to the question which arises on this application. That is because, on this application, the Court does not decide whether the Applicant should or should not be removed or deported from Hong Kong and repatriated. That question arose for determination in the NRC, and the relevant judicial proceedings. The Applicant is subject to a valid Removal Order and a valid Deportation Order. Having failed to establish his NRC, the Applicant will be removed or deported. Therefore, the question which arises for determination on this application is whether the Applicant has been lawfully detained until today and can continue to be lawfully detained until he is removed or deported.

34.  It can also be noted that it is not suggested by the Director that the Applicant is now being detained as a result of any crime, because he is being detained under the Ordinance pending his removal or deportation. Similarly, the Director has provided the Applicant with notices identifying why the view has been taken to date that he should not be released on recognizance in the meantime.

H.  Whether Detention has become unlawful

35.  There was and remains clear prima facie lawful authority for the detention:

(1)  From 30 December 2022 to 4 May 2023, he was detained under section 32(3A) which authorizes the detention of person against whom a removal order is in force. The Removal Order remains extant at all times.

(2)  From 5 April 2023 to 1 June 2023, he was detained under section 29 for making enquiry as to whether a deportation order ought to be issued. The Deportation Order was issued on 2 June 2023.

(3)  From 2 June 2023, he was detained under section 32(3) which authorises the detention of person against whom a removal order or a deportation order is in enforce. The Deportation Order remains extant.

36.  Detention for the period of 177 days is not, of itself, unlawful. Therefore, the question then arises as to whether the overall circumstances have rendered continued detention (up to this date, and for the reasonably foreseeable future) unreasonable, and hence unlawful.

37.  I can address the Hardial Singh principles broadly as below. But the starting point is of course that the Applicant has indeed been detained up to today for a period of 177 days or a little less than 6 months. It is against that period that the other factors are to be weighed and balanced.

38.  HS1 and HS4 are clearly satisfied. I have no doubt that the detention power has been used to facilitate removal or deportation. The Director’s diligence and persistence demonstrated in the process of obtaining a replacement passport for the Applicant is to be applauded. Besides sending chasers to the Consulate and conducting interviews with the Applicant, a physical visit and a meeting were also arranged to impress on the Consulate the urgency of the matter and the need to issue a replacement passport to the Applicant as soon as possible, despite his flat refusal to complete the usual application procedures. Just a few days after the passport later became available, a repatriation flight was promptly arranged. That flight is booked for next Monday, 14 August 2023. That is a fixed date in the very near future. It can be seen that the Applicant will therefore be released from detention in the very near future, albeit in Pakistan.

39.  When the Applicant was taken into custody, the only obstacle was his expired passport which needed replacement. I am informed by Ms Fung that according to the Pakistani Consulate, an emergency travel document could usually be issued in around 2 weeks’ time upon the completion of the application formalities. I agree with Ms Fung that the Applicant could have been removed from Hong Kong long before this application was issued and heard, had he chosen to cooperate in completing the application formalities. To put it bluntly, the Applicant is the author of significant delay in the ability to remove or deport him, and hence obtain release from detention. Indeed, the papers identify that the Applicant has repeatedly been informed, and has expressed his understanding, that his refusal to cooperate would lengthen the repatriation process. Yet he has refused to comply with the re-entry formalities. It lies ill in his mouth to seek to rely on any part of that delay in arguing that the period of detention has become unreasonably long, and hence unlawful. I give significant weight to this factor, including in accordance with section 32(4A)(d) of the Ordinance.

40.  The Applicant said he still has proceedings in the High Court, which was probably a reference to the extension of time summons which he filed in June 2023, but which was rejected in July 2023. As I already said, that does not create an impediment to his removal. But that very late attempt – filed only after he was taken into custody and was about 18 months out of time – only serves to highlight his readiness in abusing court process in order to seek to delay his removal. This is echoed by his own “promise” in the affirmation that he will “automatically” exercise any right of further appeal if his summons was to be rejected.

41.  I also agree that there is a substantial risk of re-offending and absconding which will frustrate the very purpose for which the power of detention is granted. The Applicant’s criminal record is not the worst this Court has seen in habeas corpus applications of this sort. But the crimes he committed – including burglary – could properly be described as of a serious and violent nature. Therefore, where the risk of reoffending is not low, and the potential impact is also not low, this is a factor to be taken into account. Further, if reoffending led to conviction and a period of imprisonment, that would delay removal or deportation from Hong Kong.

42.  He absconded at least 2 times (even if he is to be given the benefit of doubt that the third occasion was a result of miscommunication, which I am prepared to accept for present purposes), and on both occasions he went underground for 1 year or more. The repatriation is now imminent, with a flight fixed for 14 August 2023. With his absconding history coupled with his demonstrated reluctance to return to Pakistan, there is every reason to doubt that he would appear at the airport 4 days later if he is to be released now. Absconding would defeat the very purpose of the pending removal.

43.  I see no bearing arising from the Magistrate’s decision in WKCC 2203/2022 to grant him bail. Nor do I understand how the fact that he is financially supported by ISS could point in support of releasing him on recognizance. His offer to provide surety in the sum of $1,000 also weighs very little in the scales.

44.  As already stated, the Applicant has been informed by his detention has continued without him being released on recognizance pending his removal or deportation. I do not accept the Applicant’s suggestion that the Director and immigration officers have been making their own rules, and breaking them. Further, comparison with other cases is unlikely to be helpful, where every case is decided by reference to its own particular set of circumstances.

45.  Overall, weighing the period of detention in this case – a little less than 6 months – against all the other factors in this case, including that repatriation is only 4 days away – I am satisfied that HS2 and HS3 are met.

46.  In consequence, the detention has remained lawful to date and will remain lawful for the foreseeable future until the Applicant’s removal/deportation on 14 August 2023.

I.  Result

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