Allah Ditta v. Director of Immigration
Read the full judgment text of HCAL 311/2022 on BabelCite. This High Court CFI judgment was delivered on 4 August 2022.
1. The Applicant is held in administrative immigration detention pending his deportation pursuant to a deportation order. This is his application for a writ of habeas corpus pursuant to RHC Order 54 rule 1. It is not the first such application made by the Applicant. A previous application has been made and refused. An appeal from that refusal has also recently been dismissed.
Cited by 2 cases · Cites 9 cases
|
HCAL 311/2022 [2022] HKCFI 1505 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 311 OF 2022 ________________________
________________________
________________________ Before: Hon Coleman J in Court Date of Hearing: 18 July 2022 Date of Decision: 4 August 2022 _____________ D E C I S I O N _____________ A. Introduction 1.The Applicant is held in administrative immigration detention pending his deportation pursuant to a deportation order. This is his application for a writ of habeas corpus pursuant to RHC Order 54 rule 1. It is not the first such application made by the Applicant. A previous application has been made and refused. An appeal from that refusal has also recently been dismissed. 2.But time has now moved on, and this application has been made. It falls to be determined now, by reference to matters as they are now, and applying the relevant weighing of factors as they are now. 3.First amongst the factors is the period of time already spent in detention. The current detention under section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”) commenced on 14 September 2020. The period of detention is longer when one takes into account his previous detention during the various periods: (1) from 23 March 2020 to 25 March 2020, under section 32(3); (2) from 25 March 2020 to 28 May 2020, under section 37ZK; (3) from 28 May 2020 to 16 July 2020, under section 32(3); and (4) from 16 July 2020 to 14 September 2020, under section 37ZK. 4.Therefore, it is important to record and recognize up front that the total period of detention from 23 March 2020 to the date of the hearing 18 July 2022 is about 28 months. 5.The present application was dated 26 April 2022, issued on 6 May 2022, but was without the supporting documents the Applicant indicated he wished to produce. As a result, directions were given for the filing of further documents, and for a response from the Director of Immigration (“Director”), so as to bring the matter to a hearing fixed for 18 July 2022. 6.At the hearing, the Applicant appeared in person and the Director was represented by Mr Sunny Li, Senior Government Counsel and Mr Frenki Fung, Acting Senior Government Counsel. At the end of the hearing, I reserved my decision, in part in anticipation of the two decisions of the Court of Appeal expected to be handed down a short time later, and since handed down (see below). 7.This is my Decision. B. Applicable Principles 8.In its recent 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. 9.The summary is as follows:
10.Though I refer to the summary, I do not lose sight of the underlying details and rationale. C. Relevant Facts 11.In its recent Judgment dated 29 July 2022 [2022] HKCA 779, relating to the present Applicant’s appeal from the refusal of his earlier application for habeas corpus, the particular background circumstances of the Applicant were set out. They can be adopted for the purposes of this case, with suitable changes, as follows. 12.The Applicant is a Pakistani national born on 15 January 1992. His natural mother passed away in 1994. His father, who was a Hong Kong permanent resident, married a widow in Pakistan in 1996. At present, one of the Applicant’s natural sisters and three of his step-siblings are Hong Kong permanent residents. 13.On 7 March 2008, the Applicant first entered Hong Kong for residence as a dependant of his father. The Applicant’s limit of stay in Hong Kong was last extended until 17 February 2012. 14.On 11 November 2011, the Applicant’s father passed away in Pakistan. On 17 February 2012, the Applicant made an application for extension of stay. 15.On 21 December 2012, the Applicant was arrested in connection with a robbery case. On 11 March 2013, the Applicant’s application made in February 2012 for an extension of stay was refused by the Director. 16.On 11 June 2013, the Applicant was convicted in DCCC 268/2013 of the alternative offence of handling stolen goods, and on 11 July 2013 he was sentenced to two years’ imprisonment. The Applicant has pointed to the fact that the Reasons for Sentence recorded that he had expressed remorse and admitted his wrongdoing, which arose from association with dubious friends, and that there was no use of weapon or violence. 17.Between 17 April 2014 (the date of the Applicant’s release from prison) and 15 September 2014, the Applicant was detained under the Ordinance. During this period:
18.On 15 September 2014, the Applicant was released on recognizance. The Applicant has said that fact was a recognition that the Director then realised he (the Applicant) was not a threat to society nor would likely abscond. 19.One of the conditions of the recognizance was that during the period of his release, he should not take up any employment unlawfully. The Recognizance Form No 8 dated 15 September 2014 also stated, inter alia, that “failure to observe [the] above may result in his detention and discontinuance of his release on recognizance”. 20.On 1 June 2018, the Director decided to take no further action on the NRC in view of the fact that the Applicant could not be reached by the case officer handling his claim. 21.On 30 April 2019, the Applicant was arrested while on recognizance. In the short period on police bail until his guilty plea, he did not abscond. On 25 May 2019, he pleaded guilty in STCC 2106/2019 to the offence of taking employment when a deportation order was in force against him, contrary to section 38AA of the Ordinance, and was sentenced to 15 months’ imprisonment. The Applicant has emphasised that he pleaded guilty to this offence, which again did not involve violence. 22.On 23 March 2020, the Applicant was discharged from prison. A stated above, the Applicant was detained under various sections of the Ordinance pending his removal from Hong Kong under the Deportation Order. I consider that the date of 23 March 2020 is the relevant date of the commencement of the period of continuous detention for present purposes. (In passing, I note that the internal documents facilitating reviews by the Secretary tend to refer to detention since 23 March 2020, but internal documents facilitating reviews by the Director tend to refer to detention since 14 September 2020.) 23.On 25 March 2020, the Applicant requested to pursue the NRC. The Director therefore resumed processing of the NRC. On 22 April 2020, a completed Non-refoulement Claim Form in respect of the NRC was received by the Director. On 6 May 2020, a screening interview of the Applicant in respect of NRC was conducted. On 14 May 2020, the Director rejected the NRC. On 28 May 2020, the Director treated the NRC as having been finally determined under 37V of the Ordinance in view of the fact that no notice of appeal/petition was received by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). 24.It can be noted that the notices of detention dated 23 March 2020 and 25 March 2020 did not suggest that the Applicant was likely to pose a threat/security risk to the local community, and did not mention that he had convictions associated with crimes of a serious or violent nature. The notice of detention dated 29 May 2020 did not state the view that the Applicant constituted a threat/security risk to the community. 25.On 9 June 2020, the Board informed the Director that it had received the Applicant’s late filing of a notice of appeal/petition (“Petition”) on 8 June 2020. On 2 July 2020, the Director sent a letter to the Board informing the latter of the Applicant’s detention and requesting that priority be accorded to the Applicant’s case. On 13 July 2020, the Board accepted the late filing of the Petition, and decided to give priority to the Applicant’s case. 26.The notice of detention dated 16 July 2020 did not state the view that the Applicant constituted a threat to the public order or security of Hong Kong, and did not conclude that he had convictions associated with crimes of a serious or violent nature. 27.Between 29 June 2020 and 28 September 2020, the Applicant was apparently on a hunger strike. 28.On 2 September 2020, the Board held an oral hearing of the Petition. On 14 September 2020, the Board dismissed the Petition (“Board’s Decision”). As already stated, from that date onwards, the Applicant has been detained under section 32(3) of the Ordinance pending his removal from Hong Kong under the Deportation Order. 29.On 28 September 2020, the Applicant filed a Form 86 in HCAL 1948/2020 (“JR Application”) seeking leave to apply for judicial review of the Board’s Decision. 30.On 26 March 2021, the Applicant made an application for a writ of habeas corpus in HCAL 437/2021. It was supported by an affirmation which had attached to it a handwritten document setting out his arguments in support of the application. The Applicant also made oral and written submissions in support of his application at the hearing on 7 April 2021. The application was dismissed by Chow J’s Judgment [2021] HKCFI 935. 31.On 5 July 2021, by CALL-1 [2021] HKCFI 1918, DHCJ Bruno Chan refused to grant leave to apply for judicial review in the JR Application, finding that none of the grounds put forward by the Applicant were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board in their decisions, and that there was no reasonable prospect of success in his intended application. 32.On 15 July 2021, the Applicant issued a summons essentially repeating the JR Application. DHCJ Bruno Chan dealt with the summons on paper and directed on 5 October 2021 that it be struck out and dismissed, [2021] HKCFI 2922. 33.On 20 January 2022, the Applicant issued another summons, in essence seeking leave to appeal against the 5 July 2021 decision refusing him leave to apply for judicial review in the JR Application. The summons was necessary because the application was some six months late after the expiry of the 14-day period on 19 July 2021. The summons was heard on 9 February 2022, when the Applicant appeared in person. The summons was dismissed by DHCJ Bruno Chan’s Decision dated 23 February 2022, [2022] HKCFI 479. 34.On 12 April 2022, the Applicant issued a summons in CAMP 93/2022, applying for leave to appeal out of time against the decision of DHCJ Bruno Chan dated 5 July 2021. Pursuant to the directions of the Registrar of Civil Appeals, the Applicant was supposed to have lodged his written submissions in support of the summons on or before 26 April 2022, but failed to do so. The application was dealt with on the papers, and on 8 June 2022 the application was dismissed, [2022] HKCA 811. 35.On 22 June 2022, the Applicant applied to the Court of Appeal (within CAMP 93/2022) seeking leave to appeal to the Court of Final Appeal (“CFA”) from the decision dated 8 June 2022. On 23 June 2022, directions were given on that application. But on 11 July 2022, the Registrar of Civil Appeals gave further directions, following the Applicant’s request for an extension of time within which to file his written submissions. Time was extended to 25 July 2022 on an unless basis. 36.In the meantime, the validity of the Applicant’s emergency passport, which had been previously extended by the Pakistan Consulate until 30 April 2022, was on 13 June 2022 further extended until 12 July 2022. D. Reviews of Detention 37.Until the time of the Applicant’s earlier habeas corpus application heard by Chow J, there were various reviews of detention in respect of the Applicant’s detention, made by the Director and/or Secretary for Security (“Secretary”). In essence, it was decided on each occasion of review that the Applicant’s detention should continue on the grounds that (i) his removal was going to be possible within a reasonable time, (ii) he might constitute a threat/security risk to the community, (iii) he might abscond and/or re-offend, and (iv) there were no other circumstances in favour of his release. The following factors were taken into account when reaching those decisions:
38.Obviously, since Chow J’s judgment and since the appeal from that judgment heard by the Court of Appeal, further reviews of detention have been performed. For present purposes, it is most relevant to concentrate on the recent reviews, and in particular following the decision of the Court of Appeal dated 8 June 2022. 39.On that date, and in light of that decision, the Director invited the Secretary to conduct a review of the detention authority. The relevant memo had an Annex A setting out the relevant facts of the case and the tick box form at Part B. On 14 June 2022, an update was provided by the Director to the Secretary, namely that the Applicant emergency passport had been extended until 12 July 2022, and that there was no outstanding legal impediment hindering his deportation. 40.On 16 June 2022, the Secretary notified the Director that, balancing the individual circumstances it was considered that there were grounds for continued detention. In the internal memo dated 14 June 2022, the material parts of the consideration are set out as follows (bold and underlining in original):
41.The Director then considered whether to release the Applicant on recognizance in view of his continued detention under section 32(3). The concluding ‘Recommendation’ paragraph of an internal memo dated 21 June 2022 reads as follows:
42.The Applicant was notified of the outcome of the review of detention by Notice of Review of Detention dated 28 June 2022. 43.In the meantime, on 27 June 2022, the Director sought a further review by the Secretary, in light of the fact that the Applicant had filed his Notice of Motion dated 22 June 2022 seeking leave to go to the Court of Final Appeal. By memo dated 6 July 2022, the Secretary notified the Director of his view that there were grounds for continued detention. 44.In an internal memo dated 13 July 2022, the Immigration Department officers again determined that the case was not one warranting release on recognizance in lieu of detention. E. The Applicant’s Argument 45.In what he called his “Affidavit, including Skeleton Argument” filed for the hearing, the Applicant made a number of points in writing relating to the factual background, and in response to the basis of the Director’s justification for his continued detention identified in the Notice given to him in late May 2022. Those responses are as follows (the original being handwritten in all capitals, but underlining as in original, and omitting references to the annexes):
46.In his oral submissions, the Applicant further emphasised that:
47.Though I may not mention all of those points in my analysis below, I keep them all in mind in the balancing exercise. 48.(I might also note that the Applicant made some further submissions, but they were really relevant to his underlying concern about being repatriated to Pakistan, rather than to the current matter. Those, I have given no weight.) F. The Director’s Submissions 49.As to the particular circumstances of this case, Mr Li made submissions broadly to the effect that:
50.In his oral submissions, Mr Li place particular emphasis on the fact that the Applicant would already have been released from detention – albeit by his removal to Pakistan – had he not chosen to launch the recent application seeking leave to go to the CFA, which application was almost bound to fail. But for that application, he would already have been released, so the Applicant can be treated on the basis that he has chosen to remain in Hong Kong, whilst facing the prospect of continuing detention. In any event, Mr Li submitted that as the application is of such little merit, it is likely to be rejected within a short period. 51.In answer to the Court raising the potential paradox that the longer the detention, the sooner the expected removal might be – as was also identified by the Court of Appeal in the Harjang Singh case at §149 – Mr Li submitted that the matters should be looked at one step at a time. The current outstanding application is of no merit, and it would not be appropriate to assume that it, if refused by the Court of Appeal, would be renewed to the CFA itself. 52.Mr Li acknowledged that the period of detention to date is long, but submitted that remains lawful. G. The Court’s View 53.In my view, the originally lawful detention of the Applicant has by now continued for a period which has become unreasonable, and is therefore unlawful. 54.The starting point is to bear firmly in mind that the Applicant has been held in administrative detention since 23 March 2020, namely for around 28 months. As the Applicant submitted, it is telling that that period is longer than the total period of imprisonment flowing from the conviction of the two offences. But in any event, that is the period of detention against which the other matters need to be weighed. 55.I take into account the absence on the face of most of the reviews of detention of any great variation (except updating on some of the procedural facts). As time moves on, the analysis must surely change. But, first, the change is likely to be in part through recognition of the period of detention already served. Secondly, there is force in the criticism that the change – as was made to identify a security risk which had not previously been identified – is difficult to understand where there is no offered analysis explaining or justifying that change. 56.Nor do the reviews of detention reveal any robust, up-to-date and current, assessment (which might be treated as reliable) as to what the real level of risk is that the Applicant would reoffend, and what the consequences would be of his reoffending. The essential reliance by the Director and Secretary was on the (mere) fact of past offending – and that it occurred more than once, so was “repeated”. 57.I take into account that the more serious offence committed by the Applicant – handling stolen goods, leading to the sentence of two years’ imprisonment – occurred in 2013. Even then the Reasons for Sentence recorded the expression of remorse and that the admitted wrongdoing arose from association with dubious friends. Neither that offence or the other offence involved violence. 58.The Court’s task is, of course, to assess whether the period of detention is too long by the time of the assessment. That assessment involves balancing (a) the gravity of any risks arising from release from detention against (b) the breach of the principle of liberty – where the longer the detention is (or may be), the greater the risk will have to be in order to justify it. Whatever level of risk there may have been earlier in the detention, that has become of less weight in the balance as the period of detention has continued. 59.The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness. The magnitude and potential impact of that risk will vary according to the circumstances, and my own assessment of the risk in this case is that by this time, the risk no longer justifies continued detention. 60.Nor do I think the separate risk of absconding, in the circumstances now pertaining, justifies continued detention. 61.The strongest point made on behalf of the Director was, to my mind, that the Applicant might already have been released from detention (albeit following his removal) had he not launched the recent application seeking leave to go to the CFA. I agree that – though it is ultimately a matter for the Court of Appeal – that application seems to be of little merit, and it may be that it can be and will be determined with some expedition. 62.I take into account that there is the possibility, if the recent application is in due course dismissed by the Court of Appeal, of the Applicant’s renewing that application to the CFA. In this case, that possibility – even if that further renewed application might not be anticipated to be one of great merit – and the time for it to be dealt with may take on more significance because it arises after an already lengthy period of detention. 63.But, in any event, after a period approaching 28 months (847 days up to the date of hearing), in the overall circumstances of this case which include his ties to the community and the ability to exact appropriate conditions for a release on recognizance, it is both possible and appropriate to state that continued detention is no longer lawful. H. Result 64.I order the Applicant to be released from detention under RHC Order 54 rule 4 and/or the inherent jurisdiction, on terms of recognizance acceptable to the Director. Should any issue arise in that regard, that may be raised with the Court. 65.There will be no order as to costs.
The applicant, acting in person Mr Sunny Li, Senior Government Counsel, and Mr Frenki Fung, Senior Government Counsel (Ag.), of the Department of Justice, for the respondent | ||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case