SHAKEEL AWAIS v. DIRECTOR OF IMMIGRATION

HCAL 1439/2023

[2023] HKCFI 2463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1439 OF 2023

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D E C I S I O N

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A. Introduction

1.  The Applicant is subject to a Removal Order dated 30 June 2011, issued under section 19(1)  of the Immigration Ordinance Cap 115 (“Ordinance”), as well as a Deportation Order dated 21 September 2023, issued under section 20(1)  of the Ordinance.  He has been held in immigration detention since 14 April 2023, so for a period to date of 168 days or approximately 5½ months.

2.  By application dated 18 August 2023, the Applicant applies for a writ of habeas corpus, seeking his immediate release.  I gave directions for the Director/Secretary to file an initial response to the application, and to bring this matter to hearing today.

3.  At the hearing, the Applicant has appeared in person, with the benefit of a Punjabi/English interpreter.  The Director/Secretary have been represented by Mr Rex Cheung, Senior Government Counsel, who also signed the initial response which also stood as his skeleton submissions.

4.  This is my Decision.

B.  Background

B.1  Personal Circumstances

5.  The Applicant is a Pakistani national born on 4 April 1989.

6.  He was arrested by the police as a suspected illegal immigrant to Hong Kong on 17 March 2009, when he claimed to have entered illegally by boat on 10 March 2009.  Following referral to the Immigration Department (“ImmD”)  for investigation, the Applicant was released on recognizance on 26 March 2009.

7.  At various times during the Applicant’s release on recognizance, he was convicted of offences and imprisoned, and also failed to report court bail and recognizance.

8.  The Removal Order was, as stated, made against him on 30 June 2011.  But it was not executed prior to the expiry of validity of his Pakistani passport, because the Applicant raised a non-refoulement claim (“NRC”), and various subsequent proceedings, including a ‘subsequent claim’.

9.  The Applicant has no local connection in Hong Kong.

B.2  Conviction Record and Absconding Record

10.  The Applicant is an offender, who has committed crimes whilst previously released on recognizance.  His convictions and sentences were as follows:

(1)  On 20 September 2010, the Applicant was convicted of (a) position of an identity card relating to another person and (b) possession of a forged identity card, and was sentenced to 8 months’ imprisonment for each (with four months consecutive, so totalling 12 months’ imprisonment).

(2)  On 24 August 2021, the Applicant was convicted of two counts of wounding with intent to do grievous bodily harm, and sentenced to 22 months’ imprisonment on each, to run concurrently.  He was also convicted of a theft offence of shoplifting, and sentenced to 4 months’ imprisonment to run consecutively to the other sentences.

(3)  On 6 October 2022, the Applicant was convicted of remaining in Hong Kong without authority of the Director, after having landed unlawfully, and sentenced to 284 days’ imprisonment.

11.  Oddly, in addition to the above matters, the Applicant himself suggested at the hearing today that he had served a sentence for working illegally in 2010.  The police records do not identify such a conviction.  Perhaps the Applicant has confused the nature of his conviction relating to the identity card matters in 2010, or perhaps those matters arose in the context of illegal employment which was not pursued by way of a charge.

12.  In any event, I acknowledge the lengthy gap of approximately 10 years between the conviction in 2010 and that in 2021.

13.  The Applicant failed to report recognizance once, on 10 March 2020, for a period of nine months until he was arrested by the police on 29 December 2020.  His offered explanation for absconding was that he was feeling sick.  Bearing in mind the period of absconding, this is not convincing.

14.  Court records also identified – and fully document on a running contemporaneous basis – that the Applicant failed to report court bail on no less than 22 occasions between March 2012 and October 2020.

B.3  Applicant’s Non-Refoulement Claim (“NRC”)

15.  It is unnecessary to go into any detail of the Applicant’s NRC.  Suffice it to say that by September 2018, the Applicant’s NRC had been rejected by the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), and his application for leave to apply for judicial review of the Board’s decision was refused by the Court of First instance (“CFI”)  on 30 December 2021.

16.  On 8 June 2023, Applicant did apply for an extension of time to appeal against the CFI’s decision, more than 1 year and 4 months late.  That application was swiftly dismissed on 25 July 2023.

17.  In Court this morning, the Applicant said that he had made an application to the Court of Appeal on 17 August 2023, and would if necessary pursue his case to the Court of Final Appeal.  Hence, he suggested, his rights to pursue his claim further could still be exercised.

18.  But, in any event, following a refusal by the CFI on 30 December 2021, and under the Government’s updated removal policy on 7 December 2022, any further steps were not and would not be an impediment to the Applicant’s removal from Hong Kong.

19.  The Applicant’s previous request made on 8 May 2022 for a ‘subsequent claim’ was refused by the Director on 15 August 2022.

B.4  Present Detention

20.  The period of the present detention began following the Applicant’s discharge from prison on 14 April 2023.

21.  Throughout the period of detention, the Applicant has expressed unwillingness to return to Pakistan, and has demonstrated an uncooperative attitude in refusing to complete the procedures for obtaining a new travel document.  This has necessitated significant time in liaising with the Consulate of Pakistan seeking approval of the Consulate for the Applicant’s re-entry to Pakistan, even without his cooperation.

22.  Reviews of detention have not recommended release on recognizance.  In the latest Notice of Detention dated and acknowledged by the Applicant on 26 September 2023, the Applicant was notified that he was detained under section 32(3)  of the Ordinance pending his removal from Hong Kong, and that detention should be continued because: his removal is going to be possible within a reasonable time; he poses a threat or security risk to the community; he may abscond and/or reoffend; he does not have close connection or fixed abode in Hong Kong; and there are no other circumstances in favour of his release.  Further details as to the basis of that decision were also provided.

C.  Applicable Principles

23.  The applicable principles in the present context are well established.  They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781.  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.

24.  As always, it is important to remember that the burden is on the respondent to an application for writ of habeas corpus to justify the continued lawfulness of the detention.

D.  Applicant’s Submissions

25.  Most of the enclosures with the Applicant’s application are merely photocopies of pages referring to various authorities, copied from the material filed in numerous other applications, but without specific identification as to which parts of the submission are said to be particularly apposite to the Applicant’s position.

26.  Even most of the handwritten further pages are mainly statements of general principle.  The Applicant’s individual submissions can perhaps be summarised as follows:

(1)  Removal is not going to be possible within a reasonable time, because it cannot be ascertained how long the NRC case will take before it can be finalised.

(2)  He is willing to undertake not to commit any offence if released on recognizance, so there is no likely risk or threat to security or the community.

(3)  He will not abscond or reoffend, and will give an undertaking to continue to report recognizance as and when required.

(4)  He can provide an address at which he will stay if released.

(5)  He can also provide HK$500 bail money.

(6)  He continues to suffer the emotional and psychological trauma of being physically detained, when he has already served his sentence following his conviction.

(7)  His medical condition in hospital has worsened in detention.

(8)  A longer period in custody may attract litigation, arising from unlawful detention.

27.  At the hearing, the Applicant made further submissions, which can perhaps be summarised as follows:

(1)  He has in fact been held in continuous detention for a longer period than just 168 days.  This is because he was detained prior to the most recent conviction, and then serve the period of imprisonment for that conviction, before the current period of administrative detention immediately began.

(2)  For a period of about 10 years from 2010, he committed no offence in Hong Kong.  In late 2020, he committed the offence as a result of drinking and becoming agitated and getting into a fight.

(3)  Whilst he had entered Hong Kong illegally, he has served his sentence for that.

(4)  Whilst awaiting trial, he was kept in a form of custody which in effect prevented his being able to prepare for trial, so he pleaded guilty to the charge and was sentenced.

(5)  The emergency travel document and flight ticket have been obtained for him without his consent or authorisation.  In fact, to the contrary, he has consistently refused to obtain the document, and has consistently expressed his unwillingness to return to Pakistan.

(6)  He is concerned that if he is taken to the airport tomorrow, he will be beaten or injected, and forced to take the flight despite not wanting to do so.

(7)  This concern is based upon his hearing or understanding that other persons have been subject to such treatment.

(8)  Recently, a friend of his who had been held in detention, and who had previously refused to leave, was forced onto a repatriation flight, and died.  The Applicant suggested a similar fate might await him.

(9)  He says that if he is beaten or even dies, that will be the responsibility of the Immigration Department and the Pakistani Consulate.

(10)  Further, if he is repatriated and suffers harm or is killed, that would be the responsibility of the Immigration Department and the Pakistani Consulate, because they have obtained or provided a travel document and flight ticket without his authorisation.

(11)  If he had known he would be treated unfairly, as he says he has been in Hong Kong, he would have tried to go to Europe instead.

(12)  He has come to Court – and has paid the court fee out of the income earned from working during imprisonment, but which he can otherwise ill afford to pay – as it is the only chance for him to be helped.

(13)  His life still remains in danger if he is to be returned to India.

(14)  He requests the Court to help him out.

28.  I will take these points into account and weigh them as seems to me to be appropriate.

E.  Detention Lawful or Not?

29.  There is no doubt that throughout the period of detention there has been prima facie lawful authority for it, under the various applicable sections of the Ordinance.  There is a valid Removal Order in force, and since more recently a valid Deportation Order.  Hence, the question arises whether the overall circumstances have rented continued detention unreasonable, and hence unlawful.

30.  The starting point is the period of detention to date – being 168 days, or about 5½ months – against which the other factors are to be weighed and balanced.  In so far as it is appropriate, I also take into account that that period followed immediately on from previous period(s)  of detention or imprisonment – as the impact on an individual of the period of detention might be affected by any other immediately previous similar period.

31.  Addressing the Hardial Singh principles, I am satisfied that the detention has throughout complied with HS1.  The Director plainly intends to remove or deport the Applicant at the earliest possible opportunity pursuant to the Removal Order or Deportation Order.  The Applicant is being detained solely for that purpose.

32.  It is also appropriate to comment on the point made by the Applicant that he has already served a prison sentence for entering Hong Kong illegally.  Insofar as that might give rise to a suggestion that a person who enters Hong Kong illegally but then serves prison sentence for doing so thereby somehow obtains a ‘free pass’ either to remain in Hong Kong to remain at liberty pending deportation, that suggestion would be simply wholly incorrect.  Unless the person illegally entering Hong Kong is able to establish an NRC, then that person has no right to remain in Hong Kong.  Not least where there is either or both of a removal order and deportation order, that person will be removed or deported.  That the person has previously served a sentence after conviction for illegal entry does not prevent removal or deportation thereafter.

33.  The obstacle to removal in this case – where there are no NRC-related proceedings amounting to any impediment – has simply been the practical need to obtain for the Applicant a travel document following expiry of his Pakistani passport.  Even prior to the commencement of detention, the Director had already approached the Pakistani Consulate.  Liaison efforts continued from 2022 to recently in 2023.

34.  Obviously, the Applicant’s own uncooperative attitude has greatly contributed to the delay in obtaining the necessary travel document, and hence his release from detention upon removal from Hong Kong.  I give significant weight to the fact that the lengthening of the period of detention is self-inflicted by the Applicant.

35.  There is absolutely no basis for the Applicant’s criticism of the Director for seeking and obtaining the necessary travel document to permit the Applicant’s removal/deportation from Hong Kong.  Indeed, that criticism is in effect no more than an expression of upset that the Applicant’s efforts at obstructing his removal have failed.  Nor, in my view, is there any basis for criticism of the Pakistani Consulate in providing that travel document, notwithstanding the Applicant’s own attempt to frustrate it.  The Applicant is a Pakistani national in Hong Kong illegally, and is subject to the Removal Order and the Deportation Order.  It is entirely logical that he be removed by repatriation to his country of origin, and it is in my view entirely appropriate that the Consulate of his own country facilitate his return.

36.  Ultimately, an emergency passport has been issued for the Applicant on 31 August 2023, with a validity of 30 days.  With that to hand, the Applicant’s return flight has been purchased to effect his repatriation on 29 September 2023, namely on Friday this week.

37.  I am satisfied that the Director has acted with all reasonable diligence and expedition to eliminate the obstacles to removal. Therefore, HS4 is satisfied.

38.  The Applicant has no local Hong Kong connection, and a lengthy record of absconding or jumping court bail.  As Mr Cheung put it, the Applicant has no right to remain in Hong Kong, and no other reason why he should.  There is a real and substantial risk of absconding, were he to be released on reconnaissance.  His repeated statements of unwillingness to be deported to Pakistan seem to me to increase that risk of absconding. Absconding would defeat the very purpose of his detention, and defeat the Removal Order and Deportation Order.

39.  There is also some risk of re-offending, which if it were to occur would also potentially defeat the purpose of the intended deportation.  Any conviction and period of imprisonment imposed would have that effect, even if the conviction is not for an offence of the most serious kind.

40.  HS2 and HS3 are satisfied.

41.  In passing, I would state that I accept that immigration officers will likely seek to encourage and persuade detainees are liable to removal or deportation to cooperate with the procedures necessary to effect that removal or deportation.  Butt, I do not accept there is any evidential basis to draw any inference that the Applicant either has been mistreated, or would be mistreated – whether in any continuing period of detention or in the repatriation operation arranged for tomorrow.  Speculative reference to other cases involving other persons does not provide that evidential basis.  It can also be noted that this line of submission was not raised in the Applicant’s materials filed with his application, but was raised and then embroidered orally at the hearing.

42.  It is also appropriate to point out that an application for habeas corpus such as is brought by the Applicant in this case does not give rise to any reconsideration as to whether the Applicant should or should not be removed.  The relevant question is whether the Applicant’s detention to date, and in the foreseeable future, has remained reasonable in all the circumstances, and hence lawful.

43.  Overall, I am satisfied that the period of detention to date, and the likely foreseeable period of detention until deportation tomorrow, on 29 September 2023, have remained and will remain reasonable in all the circumstances, and hence lawful.

F.  Result

44.  The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.