Akram Muhammad v. Director of Immigration

HCAL 1329/2022

[2023] HKCFI 174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1329 OF 2022

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Before:  Hon Coleman J in Court

Date of Hearing:  17 January 2023

Date of Reasons for Decision:  31 January 2023

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REASONS  FOR  DECISION

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A.  Introduction

1.The Applicant is the subject of a Removal Order and a Deportation Order, each issued under the Immigration Ordinance Cap 115 (“Ordinance”). He has been held in immigration detention pending his removal since 19 December 2020. By the time of the hearing on 17 January 2023, the period of detention had lasted about 760 days, or 2 years and 1 month.

2.The Applicant was originally detained in the Castle Peak Bay Immigration Centre (“CIC”), but was transferred to the Tai Tam Gap Correctional Institution (“TGCI”) on 17 June 2021. He viewed the detention conditions in CIC as more favourable than those at TGCI, and he repeatedly requested to be transferred back to CIC, but the requests were not acceded to.

3.By the ‘hybrid’ application form in this action filed on 24 November 2022, the Applicant specifically canvassed both (1) an application for leave to apply for judicial review and (2) a habeas corpus application. Hence, the Applicant made two applications (or “two grounds”, in the Applicant’s words):

(1)  an application for leave to apply for judicial review of paragraph 3 of the Immigration (Places of Detention) Order Cap 115B – which allows immigration detainees to be detained in TGCI – on the ground of unfair differential treatment from those detained in CIC; and

(2)  a habeas corpus application, seeking an order for the Applicant to be released from detention under Order 54 of the Rules of the High Court on terms of recognizance acceptable to the Director – the basis of the application being by reference to the usual Hardial Singh principles (see below).

4.The two applications were linked in that the detention conditions in TGCI formed part of the Applicant’s arguments as to why his detention has become unlawful. But the TGCI conditions point was capable of standing alone.

5.I directed an oral hearing, fixed for 17 January 2023, which served as the hearing for both the judicial review application and the habeas corpus application. At the hearing, the Applicant was represented by Mr Jeffrey Tam and Mr Albert Wan of Counsel. The putative respondents were represented by Mr Michael Lok of Counsel.

6.At the end of the hearing, I dismissed both applications with reasons to follow and be handed down later. That decision meant, obviously, that I was satisfied both that (1) the intended grounds for judicial review were not reasonably arguable with reasonable prospect of success, and (2) the detention of the Applicant had not by that means or otherwise become unlawful on the Hardial Singh principles, as applied to the particular circumstances of the case.

7.It would obviously have been convenient to give reasons for both aspects/grounds of the application in one go, and that was what I intended at the conclusion of the hearing. However, on Friday 27 January 2023, just 10 days after the hearing, the Applicant filed a renewed habeas corpus application in HCAL 111/2023. The papers reached me on 30 January 2023 (Monday), whilst I was on leave. The renewed application must be dealt with urgently, not least because the removal of the Applicant is otherwise imminent: his repatriation flight is scheduled for 1 February 2023 (a fact already known at the hearing and which I took into account in reaching my Decision).

8.HCAL 111/2023 will be dealt with urgently by another High Court Judge, and it may be that the consideration on that application will include, or even focus on, whether there has been any material change of circumstances since 17 January 2023. Therefore, it seems to me that it would clearly be of assistance to that Judge if I were to have provided my reasons for my earlier Decision, which will explain why the previous application was dismissed by reference to those circumstances known as at that date (including the planned repatriation on 1 February 2023).

9.As such, it has become appropriate for me to give my reasons for dismissing the Applicant’s original habeas corpus application heard on 17 January 2023 as soon as possible, and for that reason also to bifurcate my reasons for dismissing the habeas corpus application and the reasons for refusing the application for leave to apply for judicial review.

10.These are my Reasons for Decision, dismissing the Applicant’s habeas corpus application pertaining to his detention from 19 December 2020 to 17 January 2023. The reasons for dismissing the application for leave to apply for judicial review will be separately handed down later.

B.  Factual Circumstances

B.1  Immigration Status

11.The Applicant is a national of Pakistan, aged 35. He entered Hong Kong illegally, and he was arrested by the Police on 10 February 2009.

12.As already indicated, he is the subject of both a Removal Order and a Deportation Order. The Removal Order was issued on 23 September 2015 under section 19(1)(b) of the Ordinance. The Deportation Order was issued on 13 September 2022 under section 20(1)(a) of the Ordinance. Both orders remain extant.

B.2  Criminal Record

13.The Applicant’s criminal record is relied upon by the putative respondents to justify his continued detention. It is as follows:

(1)  On 10 September 2012, he was convicted of robbery and sentenced to 5 years and 3 months’ imprisonment (DCC 423/2012). The offence was committed in breach of a ‘bindover’ order.

(2)  On 8 September 2017, he was convicted of robbery again and, on 9 October 2017, sentenced to 11 years’ imprisonment (HCCC 115/2017). But the conviction was quashed upon appeal on 12 December 2019 and a retrial was ordered (CACC 341/2017).

(3)  On 18 December 2020, the Applicant was convicted on his own guilty plea of handling stolen goods and sentenced to 3 years and 45 days’ imprisonment (HCCC 412/2019).

14.Apparently by the time the Applicant was sentenced for his most recent record in handling stolen goods, he had already been remanded for a period not less than the period he had to serve and was discharged from the prison the next day, on 19 December 2020. Upon discharge, he was transferred to the Immigration Department (“ImmD”) and has since been held in immigration detention pending his removal from Hong Kong.

15.It may also be noted that the Applicant was arrested for the two robbery charges/convictions whilst he was released on immigration recognizance.

B.3  Non-refoulement Claim and Related Proceedings

16.Whilst the Removal Order was issued in 2015, the non-refoulement claim/torture claim (“NRC”) and related judicial proceedings maintained by the Applicant formed a legal impediment preventing the putative respondents from removing him under the then applicable removal policy. Before 7 December 2022, the putative respondents’ removal policy was that an immigrant would not be removed as long as there was extant any NRC or related judicial review proceedings.

17.On 13 February 2009, that is 3 days after he was first sighted and arrested by the Police in Hong Kong, the Applicant raised an NRC. In the following years, the Applicant pursued his NRC on all the applicable grounds and exhausted all the administrative avenues available to him under the Unified Screening Mechanism. By October 2018, his NRC based on all grounds relied on by him had been rejected by both the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

18.On 18 December 2020, the Applicant applied for leave to challenge the Board’s decision by way of judicial review, in HCAL 2462/2020. It can be noted from the chronology that that application was made immediately before or as the present detention commenced. By then, the application was about 23 months late.

19.On 19 January 2022, the Court of First Instance (“CFI”) refused to grant an extension of time. In his decision [2022] HKCFI 247, DHCJ Bruno Chan ruled that the Applicant had failed to put forward good or proper grounds to justify the extremely substantial and inordinate delay. The Applicant had only put forward some “vague and bare assertions without any proper details or elaborations”.

20.The Applicant appealed to the Court of Appeal (“CA”), but his appeal was dismissed on 1 April 2022. The CA noted that the Applicant did not put in any written submissions despite the direction of the Registrar of Civil Appeals: see [2022] HKCA 445. The Applicant then sought leave to appeal against the CA’s decision to the Court of Final Appeal (“CFA”). The CA had no difficulty in refusing to grant leave on 30 May 2022: see[2022] HKCA 768.

21.No further steps were taken. So, by 30 May 2022, there was no extant NRC or NRC-related judicial review proceedings.

B.4  Detention, Reviews of detention and the Applicant’s Medical Condition

22.As stated, the present period of detention commenced on 19 December 2020. Throughout the detention period, the Applicant’s detention has been subject to review by the 1^st and/or 2^nd putative respondents. Reviews took place on 7 occasions, on 19 March 2021, 28 May 2021, 10 September 2021, 11 January 2022, 8 April 2022, 31 May 2022, and 8 July 2022 respectively. On each occasion, continued detention (rather than release on recognizance) was recommended. The grounds relied upon in support of continued detention were/are that (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he constitutes a threat/security risk to the community; (c) he may abscond or re-offend; (d) he does not have close connection or fixed abode in Hong Kong and (e) there are also no other circumstances in favour of the Applicant’s release.

23.In the “Notice of Review of Detention” for the review conducted earlier, when the Applicant’s judicial review application was pending the CFI’s decision, it was noted that the outstanding CFI proceedings were expected to be dealt with within a reasonable time. In the later reviews, where there were no extant proceedings, it was noted accordingly. For the two reviews conducted in May and July 2022, it was also noted that the Applicant requested to be released, on medical grounds, but it was considered that his medical condition was insufficient to outweigh other factors favouring continued detention.

24.The reference to medical grounds refers to the Applicant’s foot injury. On or about 1 June 2021, the Applicant fell on the floor in a toilet in the CIC and suffered injury on his right foot. He was sent to the Tin Shui Wai Hospital for treatment. Upon return to CIC, the doctor there gave him a walking stick. On 17 June 2021, when he was transferred from CIC to the TGCI, the walking stick was taken back by CIC security staff.

25.The Applicant says there was a lift in the CIC but not in the TGCI. He had to walk up and down the stairs in the TGCI, which was painful to him due to his foot injury.

26.The Correctional Service Department (“CSD”), which was in charge of the management of TGCI, deposed to explain that reasonable medical assistance had been provided to the Applicant regarding his complaint about foot pain.

27.On 16 November 2021, the Applicant attended a medical appointment at the Pamela Youde Nethersole Eastern Hospital, to attend a therapist who recommended the Applicant be provided with a walking stick. A walking stick was eventually provided to him on 23 November 2021 and he had been using the same ever since.

28.On 20 April 2022, the Applicant attended another medical appointment where the doctor recorded the Applicant’s complaint about foot pain and said that that the situation would be better if he could walk in sports shoes or his own shoes. Correspondence then followed between the doctor and TGCI regarding this matter. TGCI suggested to provide the Applicant with a pair of CSD sports shoes during day time and a pair of sandals during night times, to take into account some of the security concerns, e.g. risks posed by shoe-laces which could be ‘weaponized’ in the detention setting. On 31 May 2022, the doctor indicated that the proposed arrangement was reasonable. But the Applicant insisted to wear his own private sports shoes.

29.The Applicant continued to raise the matter about his foot pain and the request to wear his private sports shoes in his subsequent medical appointments.

30.Various interviews were also conducted with Applicant during his detention to ascertain his willingness to return to Pakistan. He repeatedly expressed unwillingness.

B.5  Obstacles and steps towards removal

31.The frequent obstacles to removal of an NRC claimant are (a) any extant NRC and related proceedings, and (b) an expired travel document which needs replacement.

32.The Applicant’s application to the CA for leave to appeal to the CFA had already been refused on 30 May 2022. In any event, even were he to further renew his leave application before the CFA (now well out of time), that would no longer be considered as a legal impediment to his removal, under the new removal policy which came into effect on 7 December 2022. Under the new policy, once a detainee’s NRC-related judicial review application has been rejected by the CFI, any further appeal to higher courts will not be seen as an impediment, as long as the CFI’s decision remains in place.

33.Thus, there has been no legal impediment arising from the Applicant’s NRC or related proceedings, since 30 May 2022.

34.The remaining obstacle towards removal was the Applicant’s expired passport which needed replacement. In this regard, the ImmD has been in active liaison with the Consulate General of Islamic Republic of Pakistan since November 2021. The ImmD continued to chase after the Consulate throughout January to May 2022. The Consulate acknowledged receipt of the request toward the end of May 2022.

35.From June 2022 to November 2022, the ImmD corresponded with the Consulate for verification of the Applicant’s identity and provision of the Applicant’s photos and relevant documents for the issuance of an emergency travel document (“ETD”).

36.On 2 December 2022, the Consulate issued an ETD with a validity of 30 days. But arrangements to repatriate the Applicant were eventually put on hold because of this current application.

37.By the time of the 17 January hearing, the ImmD had procured the extension of the validity of the Applicant’s ETD to 5 February 2023 and a repatriation flight to Pakistan had been scheduled for 1 February. As it then stood at the time of the hearing, therefore, there was no obstacle to removal, and repatriation was imminent.

C.  Applicable Principles

38.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.

39.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.

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

D.  The Applicant’s Submissions

41.It would be fair to say that Mr Tam’s focus in this action was very much on the judicial review aspect, rather than the habeas corpus application. He made the following main points to submit that the detention had continued for a period which had become unlawful:

(1)  The detention had lasted 760 days, which is undoubtedly a very lengthy period.

(2)  The Applicant has a pending criminal appeal arising from his conviction for handling stolen goods. He was convicted on his own guilty plea. He is acting in person. The appeal has reached the stage where directions have been given for parties to file written submissions (the deadline for the Applicant is on or before 29 January 2023). Mr Tam said removal of the Applicant from Hong Kong now would stifle his criminal appeal.

(3)  The Applicant suffered a serious foot injury and it is very painful for him to walk the stairs in the TGCI. His health will continue to deteriorate as his detention in the TGCI continues.

(4)  The Applicant does not have a history of absconding.

42.It seems that Mr Tam’s submissions were mainly directed at HS2 and HS3. There was little or no dispute that (a) the detention was authorized by lawful authority, (b) the detention powers had been and were being deployed for the purpose of removal (HS1), or that (c) the putative respondents had acted with reasonable diligence and expedition to effect removal (HS4).

E.  Whether Detention Has Become Unlawful

43.Whilst Mr Tam focused on HS2 and HS3, the burden was nevertheless on the putative respondents to satisfy all that was necessary to justify the continued detention as reasonable and lawful.

44.The initial point is that there was and remained clear prima facie lawful authority for the detention of the Applicant. The question then arose as to whether the overall circumstances had rendered continued detention unreasonable, and hence unlawful.

45.As identified by both parties, the starting point of that analysis was that the Applicant had been detained for 760 days (up to the date of hearing), which is a lengthy period and the period against which all other factors fell to be weighed and balanced.

46.I considered that HS1 and HS4 were clearly satisfied. The putative respondents intended and intend to remove the Applicant, and had been only using the power to detain for that purpose. I did not think what has turned out to be the length of the detention suggested that the putative respondents had any other intention than to deport the Applicant. The chronology set out above also clearly points to the fact that the putative respondents had always acted with reasonable diligence and expedition, which led to the issue and extension of the Applicant’s ETD and the scheduled repatriation flight.

47.I acknowledged that 2 years and 1 month is a very substantial period. About 1 year and 1 month was spent pending the CFI’s decision, which was eventually delivered on 19 January 2022. Back then, the practice of informing the Court that a judicial review applicant was in immigration detention and to ask for priority had not yet been developed. As revealed in the CFI’s decision, the time taken was by no means a reflection of the complexity of the case. With the benefit of hindsight, the time taken for the CFI to deliver its decision might have been longer than one would have expected. But, at each point of the relevant period, I agree with the Director that it was then reasonable to expect that the Applicant’s judicial review leave application (which was anyway made about 2 years out of time) would be disposed of by the CFI within a reasonable time.

48.Whilst each person is entitled to stand on his own legal rights and to pursue all available legal remedies to the end, an applicant is not required to pursue all possible avenues of application or appeal, and can decide whether or not to do so. It must also have been within the Applicant’s contemplation that the NRC related legal proceedings he maintained would have prevented his removal – and the accompanying release from detention upon removal.

49.In respect of the Applicant’s foot pain, as I have recognized in a similar habeas corpus application – see [2022] HKCFI 3774 at §34 – the conditions of detention can be taken into account in assessing the reasonableness and hence lawfulness of the detention. The conditions of detention are also a measure of how much a detainee has been deprived of his liberty. The more severe the restraints placed upon the detainee, the deeper the intrusion into personal liberty. As is clear from my dismissal of the Applicant’s application for leave to apply for judicial review, I did not think that the circumstances of his detention at TGCI (according to his complaints) had rendered the circumstances of his detention unreasonable or unlawful. Also in that context, I accepted that the Applicant’s foot injury or foot pain and its consequences were capable of being a relevant factor. But I agreed with Mr Lok that, in view of the affidavit evidence deposed by the CSD, there was no basis to suggest that the Applicant had not be provided with appropriate medical care whilst he was detained.

50.As to the argument that removal would stifle the Applicant’s criminal appeal, this seemed to me to be misdirected. In the context of a habeas corpus application, the question before the Court is whether the Applicant should be detained pending his removal, rather than whether he should be removed or when he should be removed. The best Mr Tam could argue was that being released on recognizance would make the Applicant’s appeal preparation easier, compared to his being kept in detention. I bore this in mind, but would note that it is not uncommon for a person to have to prepare his criminal appeal whilst detained. I have also noted the conviction the subject of appeal was entered on the Applicant’s own guilty plea.

51.I also accepted that the risk of re-offending was real. The Applicant was convicted of robbery and handling stolen goods, both of which are serious crimes. He was also arrested whilst released on recognizance. The impact of any further re-offending would not be low. I gave less weight to the risk of absconding, given that the Applicant had no absconding record. But I thought that it is not unreasonable to recognize that there was at least some risk of absconding, given the Applicant’s persistent indication of unwillingness to return to Pakistan. Were he to be released and fail to appear for the scheduled repatriation/removal, that would defeat the very purpose of the detention and the Removal Order and Deportation Order.

52.The present detention had unfortunately been rather long up to the date of the hearing. But, in view of and weighing all the circumstances, I was able to conclude that the Applicant had been detained for a period that was reasonable, and that the expected period of further detention – that is until the scheduled removal on 1 February 2023 – would remain lawful. I considered HS2 and HS3 were also satisfied.

F.  Result

53.For those reasons, I dismissed the habeas corpus application.

Mr Jeffrey Tam and Mr Albert Wan, instructed by Tang, Wong & Chow, for the applicant

Mr Michael Lok, instructed by the Department of Justice, for the putative respondents