Butt Waqas Arif v. Director of Immigration

HCAL 900/2022

[2022] HKCFI 3062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 900 OF 2022

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BETWEEN

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Before:  Hon Coleman J in Court

Dates of Hearing:  6 October 2022

Date of Decision:  6 October 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 under immigration detention, pending his removal from Hong Kong pursuant to a Removal Order issued on 31 January 2018.  The detention is made pursuant to authority given by section 32(3A)  of the Immigration Ordinance Cap 115 (“Ordinance”).  The present period of detention commenced on 6 September 2021, and so to date has lasted 396 days, or 13 months.

2.On 8 September 2022, the Applicant applied for writ of habeas corpus.  But the grounds set out in his supporting affirmation state that the application is against [sic] “all my Non-refoulements claims decision given by director of Immigration”.

3.I gave directions for the matter to come to today’s hearing.  Those directions included for the Respondent (“Director”)  to provide an initial response to the application, and for the Applicant to have leave to file a reply to that initial response.  The initial response was filed, but the Applicant has not filed any reply.

4.At the hearing, the Applicant has appeared in person (with the benefit of a Punjabi interpreter).

5.The Director has been represented by Mr Rex Cheung, Senior Government Counsel, who also signed the initial response/skeleton argument, on which he placed reliance at the hearing.

6.This is my Decision.

B.  Background Facts

B.1  Immigration Status

7.The Applicant is a Pakistani national.  On 9 August 2009, he was intercepted by the Police in Hong Kong as a suspected illegal immigrant.  On his own account, he entered Hong Kong illegally on 8 August 2009.

8.As said, he is subject to a Removal Order issued on 31 January 2018.  The Removal Order was issued under section 19(1)(b)  of the Ordinance.  It has remained in force throughout.

9.The power to detain pending removal under such a removal order is to be found in section 32(3A)  of the Ordinance, which provides:

A person in respect of whom a removal order under section 19(1)(b)  is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.

B.2  NRC and JR

10.On 12 August 2009, he lodged a non-refoulement claim (“NRC”).  It took the Applicant 11 years to exhaust all the available administrative and judicial avenues for his NRC.

11.The NRC was first rejected by the Director and then the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”).  He then sought leave from the Court of First Instance (“CFI”)  to challenge the Board’s decision by way of judicial review.  After the CFI had refused leave, he applied to the Court of Appeal (“CA”).  He eventually reached the Court of the Final Appeal (“CFA”)  which dismissed his application for leave to appeal by the rule 7 process, on 5 August 2020.

12.In September 2020, the Applicant requested to make a subsequent claim (“SC”), which was rejected by the Director on 9 March 2021.  On 12 April 2021, the Applicant applied to the CFI for leave to judicially review the Director’s refusal.

13.On 3 September 2021, the CFI refused the leave application and also made a Restricted Proceedings Order (“RPO”)  which prohibits the Applicant from commencing fresh proceedings related to his NRC without first obtaining leave from the Court for him to do so.

14.Therefore, by the time the present detention commenced on 6 September 2021, there was no extant NRC or related legal proceedings.

B.3  Periods of Detention and Reviews

15.The Applicant was first subject to immigration detention following his interception by Police on 9 August 2009.  He was released on recognizance on 17 August 2009.

16.The Applicant’s recognizance was not revoked until 6 September 2021, following the CFI’s dismissal of his latest leave application and the imposition of the RPO.  This is how the present detention arose.

17.The present detention has been reviewed 7 times so far, on 19 October 2021, 22 November 2021, 12 January 2022, 2 March 2022, 27 May 2022, 2 September 2022 and 27 September 2022.  Continued detention was recommended on each occasion.  The same grounds were relied upon for the recommendation in all the reviews: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) he does not have close connection or fixed abode in Hong Kong; and (3) there are no other circumstances in favour of his release.

18.In the more recent reviews, more details were given to expand on those grounds.  For the latest review on 27 September 2022, internal minutes reflect that the Director has considered the following: (a) there is no outstanding NRC or related legal proceedings and an RPO has been imposed on the Applicant; (b) he has no family connection in Hong Kong; (c) an emergency passport has been obtained for the Applicant, making him ready for re-entry and the booking for a removal flight is underway.

B.4  Steps towards Removal

19.The Applicant’s passport expired in 2013, long before the present detention commenced.

20.ImmD started to take steps to facilitate the Applicant’s repatriation in April 2021, by sending a letter to the Consulate General of the Islamic Republic of Pakistan (“Pakistan CG”)  regarding the Applicant’s re-entry.  ImmD’s liaison with the Pakistan CG continued after the Applicant was detained.  But the process for obtaining a replacing travel document has not been smooth.  The Pakistan CG initially required the Applicant to attend an interview at the Pakistan CG office, to provide a recent passport photo and to submit a re-entry application, but the Applicant refused to cooperate.  The Applicant has consistently expressed unwillingness to return to Pakistan, and has refused to go through the re-entry application process, for example by refusing to attend an interview at the Pakistan CG office.

21.In about July 2022, in view of the Applicant’s lack of cooperation, ImmD requested the Pakistan CG to consider alternative means to enable re-entry.  The request was eventually acceded to towards the end of September 2022.  On 23 September 2022, an emergency passport was issued with validity expiring on 22 October 2022.

22.Internal correspondence provided by the Director shows that ImmD has already liaised with travel agencies to book a seat for the Applicant on a return flight to Pakistan.  Upon the checking of availability of flights, the Applicant’s return is scheduled on 13 October 2022.

C.  Applicable Principles

23.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.

24.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 objective review 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.  Merits of Application

25.The Removal Order issued against the Applicant is valid and extant.  The detention under section 32(3A)  of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending removal. 

26.The question raised by this application is whether the detention has become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.  In other words, is it lawful to continue to detain the Applicant pending, that is until, his removal from Hong Kong?

27.The question raised by this application is not whether the Applicant should or should not be removed from Hong Kong.  That has already been decided by the making of the Removal Order, and the exhausting of his various attempts in his NRC and related proceedings.

28.The application papers do not seek to identify why the detention of the Applicant has become unlawful.  Nor did the Applicant by way of oral submissions really address that point – except perhaps as regards the fact that he has a clear record, after being in Hong Kong for 14 years, and has honoured the terms of his recognizance.  Rather, and in line with what was said in his affirmation (see above)  the Applicant’s submissions focused on that (1) he does not wish to return to Pakistan; (2) he has not asked ImmD to take any steps to return him to Pakistan; (3) his parents and grandmother passed away and he has no property in Pakistan so that he cannot go back; and (4) since he was detained his good health has deteriorated, so that he now has high blood pressure and takes medication, and has a fast heartbeat.

29.Mr Cheung submits that the detention of the Applicant has been reasonable at each stage, and throughout the entire 396 days.  Having carefully considered the circumstances, I agree.

30.First, the Director does intend to deport the Applicant and is only using the power to detain for that purpose.  By 6 September 2021, the only impediment preventing removal was the need to obtain re-entry permission from Pakistan. The Director had been in active liaison with the Pakistan CG for this purpose. An emergency passport was issued on 23 September 2022.  ImmD has now secured a seat on a repatriation flight scheduled on 13 October 2022.  HS1 is satisfied.

31.Secondly, I am also satisfied that the Director has acted with reasonable diligence and expedition to effect removal, evident by ImmD’s persistent efforts in enabling the Applicant’s re-entry into Pakistan. HS4 is satisfied.

32.Thirdly, there have been no live NCR or related judicial review proceedings at any point in the present period of detention. The only obstacle standing in the way of removal has been the need for a replacement travel document.  Whilst the Applicant was uncooperative in going through the application procedures, the Director explored with the Pakistan CG the alternative means to issue a replacement travel document or to enable the Applicant’s re-entry.  In the circumstances, the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time.  HS3 is satisfied.

33.Whilst the period of detention – 396 days – is substantial, I agree with Mr Cheung that that was largely of the Applicant’s own making by refusing to cooperate in obtaining a replacement document to remove the only practical impediment to his removal, and thus the end of detention.

34.Balancing matters overall – and keeping firmly in mind that the period of detention to date has been as long as 13 months – I conclude that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances.  HS2 is satisfied.

E.  Result

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

36.I make no order as to costs.

The applicant, acting in person

Mr Rex Cheung, Senior Government Counsel, of the Department of Justice, for the respondent