Sultan Zahid v. Director of Immigration

HCAL 1322/2022

[2023] HKCFI 16

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1322 OF 2022

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Before:  Hon Coleman J in Court

Dates of Hearing:  9 January 2023

Date of Decision:  9 January 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 made on 30 August 2013. He has been held in immigration detention since 10 September 2022 pending his removal. To the date of hearing, the period of detention had lasted 122 days, around 4 months.

2.On 23 November 2022, the Applicant applied for a writ of habeas corpus on the grounds identified in his supporting affirmation.

3.I gave directions for the Respondent (“Director”) to file an Initial Response, and so as to bring the matter to a hearing on 9 January 2023. At that hearing, the Applicant appeared in person with the benefit of an Urdu/English interpreter and the Director was represented by Mr Alvin Hor, Government Counsel.

B.  Factual Circumstances

B.1  Immigration Status

4.The Applicant is a Pakistani national. He was arrested by the Police in Hong Kong on 1 July 2013 for being a suspected illegal immigrant. The suspicion was confirmed. As already indicated, a Removal Order was then made against him on 30 August 2013. The order remains extant.

B.2  Non-refoulement Claim and Related Proceedings

5.The Removal Order was not put into effect over the following years because the Applicant lodged a torture claim three days after he was arrested by the Police, i.e. on 4 July 2013.

6.In the same year, his torture claim was dealt with and refused by the United Nations High Commissioner for Refugees, according to the then applicable mechanism for dealing with torture claims.

7.After non-refoulment claim (“NRC”) based on grounds other than torture risk was made available, and with the implementation of the Unified Screen Mechanism, the Applicant lodged an NRC in 2014. In 2017, the Director rejected his NRC on all applicable grounds other than torture risk. The Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which dismissed the appeal in the same year.

8.In 2018, the Applicant applied to the Court of First Instance (“CFI”) for leave to judicially review the Board’s decision. The CFI refused to grant leave, and the Applicant attempted to appeal all the way up to the Court of Final Appeal (“CFA”). The CFA dismissed the Applicant’s application for leave to appeal on 23 September 2021, which brought the legal proceedings related to his NRC to an end.

9.On 26 September 2022, shortly after the Applicant was taken into immigration detention, and probably triggered by that, he requested for the Director to allow him to lodge a subsequent claim (“SubC”). On 27 September 2022, the Applicant’s request was referred to the Duty Lawyer Scheme. On 21 October 2022, the Director was informed that the Duty Lawyer Scheme would not assign legal representation for the Applicant. On 9 November 2022, the Director asked for further evidence to support the SubC. On 15 November 2022, the Director received written submissions and additional information in support of the SubC. On 29 November 2022, the Director rejected the request to lodge a SubC.

10.As it now stands, there is no extant NRC nor any NRC related legal proceedings.

B.3  Criminal Records

11.During his stay in Hong Kong, the Applicant was convicted of the following offences:

(1)  On 17 July 2016, he was sentenced to 15 months’ imprisonment for taking employment while being a person in respect of whom a removal order is in force.

(2)  On 8 December 2021, he was sentenced to a total of 18 months upon convictions of three offences: (a) taking employment while being a person in respect of whom a removal order in in force; (b) using an identity card relating to another person; and (c) using a false instrument.

B.4  Detention and Reviews

12.Prior to the present detention, the Applicant was subject to two periods of immigration detention, each running for about 1 month.

13.As stated, on this occasion, the Applicant has been detained since 10 September 2022. A review of detention was conducted on 14 December 2022 and Director considered that continued detention is necessary and justified on the following grounds: (a) the Applicants’ removal is going to be possible within 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 (e) there are no other circumstances in favour of his release.

14.At the hearing, Mr Hor updated the Court as to the basis of detention of the Applicant. Whilst originally detained pending removal under the Removal Order, the basis of detention was changed on 29 December 2022 to detention pending consideration of the making of a Deportation Order against the Applicant. It is anticipated that a Deportation Order might be made against him on 17 January 2023.

B.5  Steps to Removal

15.When the present detention commenced on 10 September 2022, there were no extant NRC or related legal proceedings. The Applicant’s travel document was still valid.

16.But the Applicant requested to lodge a SubC shortly after he was detained. Although strictly speaking the request to file a SubC was not of itself an NRC (because permission had not yet been obtained from the Director for the lodging of the SubC), it seems the Director reasonably preferred to deal with it first before potentially removing the Applicant from Hong Kong. In any event, after the Duty Lawyer Scheme rejected providing representation to the Applicant, the Director swiftly dealt with the request in about one month.

17.But, by the time the request was rejected on 29 November 2022, the Applicant’s passport had expired on 6 November 2022, and he had also already filed this habeas corpus application on 23 November 2022.

18.In any event, after the passport had expired, the Director started liaising with the local Consulate General of Pakistan (“Pakistani Consulate”) for issuance of an emergency travel document, obviously with a view to remove the only remaining obstacle to removal. By the date of the Director’s initial response dated 19 December 2022, I was told that the Pakistani Consulate had verbally confirmed that such an emergency travel document could be issued on or before 23 December 2023. At the oral hearing, Mr Hor confirmed that the Pakistani Consulate had issued an emergency travel document for the Applicant on 22 December 23, with a validity period of one month.

19.Whether the Applicant is liable to be removed pursuant to the Removal Order, or deported pursuant to any Deportation Order as might be made, flight arrangements have now been booked for the Applicant to be repatriated on 17 January 2023.

C.  Applicable Principles

20.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.

21.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.

22.I have applied those principles as applicable to the particular circumstances of this case.

D.  The Applicant’s application

23.The Applicant’s supporting affirmation merely states that:

Affirmation for leave to apply for writ of habeas corpus against the all my claims decision made by Director of Immigration. Seeking for bail. Thank you.

24.Whilst he was granted leave to reply to the Director’s Initial Response. He did not do so.

25.At the oral hearing, the Applicant essentially stressed one point, which was the lack of common sense of detaining him whilst at the same time asking him to provide evidence (presumably the evidence in support of his intended SubC). Therefore, the Applicant stressed that he wished to be released on bail so that he could follow up on matters and provide the evidence. The Applicant also suggested that his case officer had told him that if he were to make an application he would be released.

E.  Whether Detention Has Become Unlawful

26.There was and remains clear prima facie lawful authority for the detention of the Applicant pending his removal. The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

27.The question is to be considered from the starting point that he has been held for 122 days, against which period the other factors are to be weighed and balanced.

28.I accept that the Director intends to deport the Applicant and is only using the power to detain for that purpose. HS1 is satisfied. Further, the Director has acted with reasonable diligence and expedition to effect removal. The problem with the expired passport arose from the Applicant’s own decision to seek permission for the SubC shortly after he was taken into detention for removal, and so any delay has been to an extent self-inflicted. In any event, the Director swiftly dealt with the Applicant’s request to lodge a SubC and has liaised with the Pakistani Consulate to obtain a replacement travel document. HS4 is satisfied.

29.Throughout the detention period of about 4 months, it was not unreasonable to form the view that the Applicant would be removed within a reasonable time. As said, there was no obstacle to removal when the detention began. Nor should the intervention of the request to lodge a SubC or the expiration of the passport be seen as obstacles sufficient to put the intended removal outside a reasonable timeframe, as has been clearly demonstrated in the chronology above.

30.Further, I do not accept that there is any inconsistency or lack of common sense in the Applicant being detained whilst he is invited to provide whatever evidence he wishes in support of his intended SubC. In passing, I would note (without placing any particular weight on the point) that if the Applicant thought that making a request for SubC would necessarily lead to his being released, that was a mistake in understanding. There is also no reason to think that his request for SubC was not properly considered and dealt with.

31.Looking at matters overall against the detention period of about 4 months, I am satisfied that the Applicant has been detained for, and will likely continue to be detained only for, a period that is reasonable in all the circumstances. Indeed, as Mr Hor submitted, whether the repatriation of the Applicant is by way of removal or deportation, where the flight has been booked for 17 January 2023, it is imminent. HS2 and HS3 are also satisfied.

32.The detention has not become unlawful.

F.  Result

33.Therefore, I dismiss the Applicant’s application for a writ of habeas corpus, with no order as to costs.

The applicant, acting in person

Mr Alvin Hor and Ms Crystal Wong, both Government Counsel, of the Department of Justice, for the respondent