SAJID MAHMOOD v. HONG KONG SAR GOVERNMENT

HCAL 898/2022

[2022] HKCFI 3060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 898 OF 2022

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D E C I S I O N

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A. Introduction

1.  The Applicant is currently held in immigration detention, pending his removal from Hong Kong pursuant to a Removal Order made on 20 January 2015, and which at all times thereafter has remained valid.  The Applicant is currently detained pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”).  The present period of detention commenced on 27 January 2022, and to date has lasted around 8½ months, or 252 days up to the date of today’s hearing.

2.  By his application issued on 13 September 2022, the Applicant seeks a writ of habeas corpus, on the grounds set out in his supporting affirmation which states:

1.) Hardial Singh Principle (1) The purpose of immigration detention is to effect removal and the power to detain can only be used for that purpose.  H.S. Principal (III) Deportation cannot be affected within a reasonable time.  The Respondents cannot say when or how they will affect it. I am detained Pending the outcome of my TCAB-Appeal, not pending removal. *please see attached “CASE BUNDLE” (*Both printed and handwritten submissions)

3.  On 19 September 2022, I gave directions to bring this matter to a hearing.  Those directions included that the Respondent (“Director”) should file an initial response to the application, which was filed on 28 September 2022 by Mr Rex Cheung, Senior Government Counsel, and Mr Jack Wong, Government Counsel.  The hearing originally fixed had to be vacated because the Applicant was a close contact of a confirmed Covid-19 case, and was re-fixed to today.

4.  At today’s hearing, the Applicant has appeared in person, and made oral submissions.  He had previously filed lengthy written submissions and materials.

5.  The Director has been represented by Mr Wong, who primarily relied upon the initial response/skeleton submissions, with a short oral submission to ‘top up’ the points made there.

6.  This is my Decision.

B.      Background

B.1    Immigration Status and Family

7.  The Applicant is a Pakistani national and illegal immigrant.  On 4 March 2011, he was arrested by the Police for remaining in Hong Kong illegally.  On 6 March 2011, he was referred to the Immigration Department (“ImmD”) and the following day raised a torture claim.  He was released on recognizance on 20 April 2011.

8.  On 20 January 2015, a Removal Order was issued against the Applicant.  The Removal Order remains valid to date.

9.  The Applicant has an Indonesian wife (by customary marriage, without registration).  There is a son born in Hong Kong on 29 July 2013.  Both the wife and son are in Hong Kong, but both have filed non-refoulement claims (“NRC”), which have been rejected and whose appeal/petition to the Board have been refused.  Related judicial review (“JR”) proceedings are pending.  The Applicant’s wife and son are subject to removal orders made on 4 January 2013 and 8 September 2015 respectively.  Their removal is pending the outcome of their JR case, but they have been released on recognizance.

B.2    Convictions, NRC and related proceedings

10.  As already stated, the Applicant raised a torture claim on 7 March 2011.  The torture claim was rejected by the Director on 11 August 2011.

11.  The following month, on 5 September 2011, the Applicant failed to report recognizance and absconded.  He absconded until 10 January 2013 (a period of approximately 1 year and 4 months), when he was arrested by the Police for robbery.

12.  On 4 February 2013, the Applicant lodged an appeal with the Torture Claims Appeal Board (“Board”) from the dismissal of his torture claim.  That appeal was refused on 8 February 2013, under then screening mechanism.

13.  On 9 September 2013, the Applicant was convicted of ‘robbery’ and sentenced to 3 years’ imprisonment.

14.  On 3 October 2013, the Applicant indicated his intention to lodge a NRC. 

15.  On 10 January 2015, the Applicant was discharged from prison and referred to the ImmD.  After the Removal Order was issued on 20 January 2015, the Applicant was released on recognizance on 6 February 2015.

16.  On 11 January 2016, the Applicant failed to report recognizance and absconded.  He absconded until 5 February 2021 (a period of around 5 years and 1 month), until he was arrested by the police.  I also note that the Applicant jumped bail from 4 December 2015 until 8 February 2022.

17.  During that period, when the Applicant could not be contacted for processing his NRC, it was decided on 25 January 2018 to take no further action on the NRC.

18.  On 2 February 2021, the Applicant was convicted of ‘possession of an identity card relating to another person’, and sentenced to 15 months’ imprisonment.

19.  On 22 March 2021, the Applicant was convicted of ‘giving false information to wilfully mislead or attempt to mislead a police officer with intent’, and sentenced to 3 months’ imprisonment.

20.  On 16 November 2021, before he completed his prison sentence, the Applicant requested resumption of the processing of his NRC.

21.  On 27 January 2022, the Applicant was discharged from prison and referred to the ImmD, which detained the Applicant under section 32(3A) of the Ordinance, pending his removal from Hong Kong.

22.  On 21 April 2022, the Applicant’s NRC was refused by the Director.

23.  On 6 May 2022, the Applicant lodged with the Non-refoulement Claims Petition Office (“NCPO”) a petition against the refusal of his NRC.  Requests have been made by the ImmD to the NCPO on 24 May 2022, 22 June 2022, 12 July 2022, and 1 August 2022 seeking to expedite the petition and for priority to be accorded to the processing of it.

24.  On 16 August 2022, the NCPO informed ImmD that the Applicant’s petition hearing had been fixed for 29 September 2022. Unfortunately, that hearing had to be adjourned because of the Applicant’s Covid-19 status.  The petition hearing has now been re-fixed for 6 October 2022.

B.3    Detention and Reviews

25.  As already stated, the Applicant was detained by ImmD following his discharge from prison on 27 January 2022.  The period of detention to date is 252 days.

26.  During the period of detention, the Applicant has made a number of requests for release on recognizance.

27.  The detention has been reviewed on five occasions, on 22 April 2022, 25 May 2022, 28 June 2022, 25 July 2022 and 27 September 2022.  On each occasion, the Director declined to release the Applicant on recognizance, having balanced the various factors including the risks of absconding and reoffending, and the threat posed by the Applicant to the community, the progress of the NRC, and liaison with the Pakistan Consulate.  The Director has consistently been of the view that the detention has remained lawful and reasonable, and that the Applicant can be removed within a reasonable time.

28.  In the internal minute dated 26 September 2022 – signed off by various other immigration officers in ascending rank on 26 or 27 September 2022, the ‘Assessment and Recommendation’ section reads as follows:

2. Subject has been detained for around eight months since 27-01-2022 pending removal from Hong Kong.  Subject was transferred to Stanley Prison for quarantine and would continue to be detained in Stanley Prison under Prison Rule 58 pending adjudication for his disciplinary hearing.  Regarding his appeal / petition against the refusal decision of his non-refoulement claim, requests have been made by ImmD to TCAB / NCPO to accord priority for subject’s case and the appeal / petition is scheduled to be heard on 06-10-2022 at TGCI.  Therefore, it is estimated that subject’s case could be determined in a reasonable foreseeable future.

3. After previous release on recognizance, subject failed to report recognizance and absconded on two occasions and jumped bail on one occasion.  On the facts, there is a real risk that subject, if released, will not only abscond but also commit criminal offence(s) as supported by his previous records.  Among other things, the offences committed by subject including “Robbery” and “Possession of an identity card relating to another person” are considered to be serious as they are deportable offences under section 20 of the Ordinance.  Moreover, the “Robbery” offence under section 10 of the Theft Ordinance Cap. 210, on conviction upon indictment, carries a maximum penalty of imprisonment for life.  In this connection, subject is likely to pose a threat to the local community.  The convictions and sentences imposed by the Court also reflected the potential gravity of risk of commission of further offence(s) if released on recognizance.

4. Subject’s local connection (i.e., a claimed wife, a son and guarantor) and the claimed medical condition of subject have been taken into consideration but such factors do not outweigh the factors against release of him as stated above.  As regards subject’s health condition, there is no reason to believe that subject would not receive proper medical treatment at TGCI if required.

5. Subject has been detained for around eight months for the present detention and they should be reasonable prospect that his appeal / petition against the refusal decision of his non-refoulement claim could be finalised in a reasonable foreseeable future. Should subject’s appeal / petition be finalised and replacement travel document be secured, removal of subject should be affected within reasonable time in the foreseeable future, subject to no other unusual circumstances or impediment hindering his removal.  As mentioned above, there is a real risk that subject may commit criminal offence(s) if released on recognizance.  The potential gravity of the offence(s) committed, if subject is released, is not a low one as supported by his previous convictions.  Having considered all relevant circumstances and balancing all the factors including the time of detention of subject for around eight months, it is considered that this case is not warranted one for release on recognizance.

29.  The reviewing immigration officers made handwritten notes each explaining why they agreed with the recommendation.

B.4    Steps towards Removal

30.  On 7 September 2021 (before the period of detention) and on 10 May 2022, ImmD requested the Pakistan Consulate for assistance in verifying the Applicant’s identity and issuing a travel document for his re-entry to Pakistan.

31.  I am told that ImmD will continue to follow up with the Pakistan Consulate, to seek assistance for arranging the necessary travel document for the Applicant.  Mr Wong explained that because the travel document which will be obtained will have a relatively short period of validity, it will only be sought once the decision of the NCPO has been received (assuming for the purposes of argument that the petition will be refused).  Thereafter, ImmD would expect to receive the travel document from the Pakistan Consulate within a few weeks.

C.      Applicable Principles

32.  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.

33.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objectivereview by the Court.  But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not.  Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable.  Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period.  This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful.  Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it.  Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.  The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

D.      Applicant’s Submissions

34.  In support of his application, the Applicant has made the following points (in my summary of them):

(1)  The detention has continued for a period of time that in all the circumstances is unreasonable, and there are several supporting factors that point towards immediate release.

(2)  The detention became unlawful upon the submission of the Applicant’s petition to the NCPO.

(3)  Removal cannot be affected within a reasonable time, as the Director cannot say when or how he will effect it.  The evidence as it stands makes the assumption that the detention is indefinite.

(4)  The Director has failed to take into account various relevant considerations, representations and submissions made by the Applicant, including in the various reviews.

(5)  The reviews of detention have not been “regular”.

(6)  The Director has failed to adhere to his own published policies, in particular as regards the right of children to be with their parents.

(7)  The detention is in breach of Article 5 of the Hong Kong Bill of Rights.

(8)  The detention is under the wrong section of the Ordinance, which may alter the consideration of its continued lawfulness.

(9)  The Applicant does not pose a threat or security risk to the community, as he has no record of violent behaviour in detention.

(10)  The Applicant acknowledges his previous absconding, but can only say that he will modify his behaviour from the past, especially as his efforts to be released are centred on his family.

(11)  The Applicant has provided one guarantor, possibly two guarantors, for processing his release on recognizance.

(12)  The Applicant is suffering “separation anxiety” due to the period of time when he has been separated from his son, who is also substantially dependant on him for care and supervision.

(13)  Further, the presence of his son would exist throughout the process of the NRC and any subsequent legal proceedings, and this needs to be given significant weight.

(14)  The Applicant has been treated (in ways he explains) as a prisoner rather than someone held in administrative detention, which has had a detrimental effect on his mental health.

(15)  During the period of detention, the Applicant’s physical condition has deteriorated, requiring medical assistance.  He is due to have an operative procedure, but not until 2023.

35.  At the hearing today, the Applicant also stated that he was not ready for the hearing tomorrow before the NCPO, and that he had already written to the NCPO requesting more time.  The Applicant said that he would need a few months – at one point, he said six months – to obtain various materials that he would want to use in support of his NRC.

36.  I note that the Applicant did not offer an explanation as to why he has not used the significant time – many years – already available to him, either when he had absconded or even since he asked for resumption of his NRC, to obtain relevant materials in support of his NRC – though I accept that some practical difficulties could arise where he has been in detention.

37.  I have all these various points in mind, though I may not address each point individually.

E.      Merits of Application

38.  Mr Cheung recognises that – where there is no dispute that there was original lawful authority to detain the Applicant under section 32(3A) of the Ordinance – the relevant question to be determined by the Court is whether the detention has ceased to be lawful because it has become unreasonable in all the circumstances.

39.  In passing, I would point out that in so far as the Applicant relies upon a potential discrepancy between the provisions in section 32 and section 37ZK of the Ordinance, I think that is misplaced.  First, in my view, the correct authority for detention of the Applicant pending his removal is to be found in section 32(3A).  Secondly, in any event it seems to me to be clear that a review of the lawfulness of continued detention under either section requires consideration of the full circumstances, including factors which may be said to point to continued detention as well as those which may be said to point against detention or to release.

40.  The first material circumstance to keep firmly in mind is the period of detention to date, namely 252 days (around 8½ months).  That is the factor against which the other factors are to be weighed and balanced.

41.  I accept that it has, throughout the period of detention, been and that it remains the Director’s intent to remove the Applicant at the earliest possible opportunity, and that the power of detention is being used for that purpose.  HS1 is satisfied. 

42.  I also accept that the Director has acted with reasonable diligence and expedition to effect removal, including by seeking a travel document for the Applicant.  HS4 is satisfied.

43.  However, there remain the two outstanding impediments to removal, being the outstanding NRC and that a travel document has not been issued by the Pakistan Consulate.  As to that last point, I accept the practical sense in seeking the travel document once the NRC has been finalised, as there is little point in obtaining a document the validity of which would probably expire before that time.

44.  As to the first point, the Applicant places significant weight on the fact that his NRC is at an “early stage” of the process.  In so far as that simply identifies that the NRC is currently before the NCPO – and where there will be a hearing tomorrow – that is correct.  But it overlooks the point that the NRC could have been considered many years ago, but for the Applicant’s decision to abscond, and only to seek resumption of its processing after he had been re-arrested and sentenced to prison for a further offence.  In any event, as the hearing before the NCPO is imminent, it is reasonable to expect a decision from the NCPO within three months.  The NCPO is fully aware that the Applicant is currently held in detention, and that it should accord priority to his NRC.

45.  Also, as things stand, I do not think it would be correct to assume that the NCPO will grant the adjournment and the significant additional time which the Applicant has said he will seek from the NCPO at the hearing tomorrow (further to his letter already written).  Whether or not to go ahead with the hearing or grant an adjournment, and the length of any adjournment if granted, are matters for the NCPO.

46.  In light of his previous history of absconding, I think there is a serious risk that he will abscond, if released on recognizance.  Insofar as it should be brought into consideration that the Applicant expressly seeks to be released on recognizance so as to look after his son, and that might be thought to lower the risk, his paternal obligations to his son did not previously prevent his absconding (and offending).

47.  The separate risk of re-offending is also not low.  Further, the potential gravity arising from any re-offending is of some substance, in light of the previous history of offences, one involving a matter of robbery (which is an offence of violence).

48.  I take into account that enquiries with the Police have elicited that the Police have no comment on or objection to the Applicant’ potential release on recognizance.

49.  As to the Applicant’s health condition and family considerations, those are matters worthy of proper weight.  I note that the Applicant has a medical condition (a medical problem while using the bathroom), but for the moment I do not see that the Applicant would not receive proper medical treatment while detained, if required.  On the other hand, I accept the force in the Applicant’s point that it would be better for himself, his wife and his son, if he were able to – and if he were in fact to – take a proper role in being with, caring for and supporting them (and in particular his son).  I acknowledge the Applicant’s point that reuniting his family would possibly relieve the family from extreme distress, and that there are inherent difficulties in leaving his wife to raise the son alone.

50.  Balancing all matters at this stage, I do not think there is necessarily a very clear answer to where the balancing exercise should end up.  Nevertheless, having given this matter anxious scrutiny, I do not think it must be said at this point in time that the Director would not be able to effect deportation within a reasonable period.  Looking ahead to the conclusion of the NRC proceedings before the Board, I think the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time.  HS3 is satisfied.

51.  In that regard, I acknowledge the possibility that the NCPO will grant the adjournment and extra time which the Applicant seeks.  I am also obviously aware of the possibility that, if the NCPO decides against the Applicant on his NRC, he may wish to challenge that result through intended judicial review proceedings.  However, I do not think it appropriate to put any real weight on the possibility of such proceedings, when it is not known whether the adjournment will be granted and if not what decision the NCPO will make, or on what basis or reasoning.  Naturally, a lengthy adjournment or the commencement of such judicial review proceedings would be a change of circumstances of some significance, and (without second-guessing the position then) it may well be that the balance would shift sufficiently towards release at that time. 

52.  But, on balance, at this stage I am also satisfied that HS2 is satisfied.

F.      Result

53.  The Applicant continues to be lawfully detained.  The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

54.  I make no order as to costs.