Mushtaq Imran Ali v. Director of Immigration

HCAL 738/2023

[2023] HKCFI 1553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 738 OF 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 Deportation Order issued on 26 July 2011. He has been held in immigration detention since 28 November 2022, pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 193 days, or about 6.5 months.

2.On 16 May 2023, the Applicant applied for writ of habeas corpus. Whilst no grounds were identified in the supporting affirmation, I understand that the Applicant seeks the usual remedy as would be expected by an immigration detainee pending his removal – to be released on recognizance granted by the Director pursuant to section 36(1) of the Immigration Ordinance, Cap 115 (“Ordinance”).

3.On 17 May 2023, I gave leave for the Director to file and serve his initial response to the application, and gave a direction to fix the date for the oral hearing which was eventually re-fixed to today.

4.At the hearing, the Director was represented by Ms Crystal Wong, Government Counsel, who also signed the initial response. Ms Wong clarified that although it falls on to the Director to decide if the Applicant should be released on recognizance, it was the Permanent Secretary for Security who issued the Deportation Order and the Principal Assistant Secretary for Security who authorised the detention. I presume Ms Wong is also authorised to act on their behalves if their exercise of powers is to be called into question in the analysis.

5.The Applicant appeared in person with the benefit of an Urdu/English interpreter.

6.This is my Decision.

B.  Immigration Status

7.The Applicant is a Pakistani national born in 1982.

8.He has been previously removed from Hong Kong twice, in 2001 and 2003 respectively. On both occasions, he entered Hong Kong as a visitor but eventually outstayed the limit of stay granted to him. When his unlawful stay in Hong Kong was discovered by the law enforcement agent, a removal order was issued pursuant to which he was then removed to Pakistan.

9.In October 2009, he was found to have entered and remained illegally in Hong Kong again. This time, the authority issued a Deportation Order against the Applicant, rather than a removal order. The Deportation Order was issued pursuant to section 20 of the Ordinance, which prohibits the Applicant from being in Hong Kong for life. A third removal operation was scheduled for 5 August 2011. But, unlike the first two removal operations, the third one was not put into effect. This is because by then the Applicant had already lodged a non-refoulement claim (“NRC”). The third removal operation was thus withheld.

10.Whilst the applicant’s NRC and related applications were being processed, his unlawful stay in Hong Kong has been tolerated by the Director. Counting from his third entry into Hong Kong around October 2009, he has been staying in Hong Kong for almost 14 years.

C.  Criminal Record and Absconding Record

11.During his stay in Hong Kong, the Applicant has committed various offences, for some of which he was sentenced to imprisonment:

(1)  On 3 September 2001, he was convicted of breach of condition of stay and sentenced to 1 month’s imprisonment suspended for 2 years.

(2)  On 28 March 2011, he was convicted on his own guilty plea of illegally remaining in Hong Kong and sentenced to 15 months’ imprisonment.

(3)  On 17 June 2014, he was convicted on his own guilty plea of common assault and having custody or control of counterfeit notes for which he was sentenced to a total of 5 months’ imprisonment.

(4)  On 11 November 2022, he was convicted on his own guilty plea of indecent assault and sentenced to a total of 2 weeks’ imprisonment. It was after serving that sentence that the Applicant was taken into detention at the beginning of the current period of detention.

12.I note (but place no particular weight in the following analysis) that between 2015 and 2020, whilst released on recognizance, the Applicant was also arrested for numerous suspected offences including robbery, trafficking in a dangerous drug, assault occasioning actual bodily harm, wounding with intent and fighting in a public place. No convictions eventuated on those suspected offences.

13.The Applicant has one record of jumping court bail. He failed to appear in court on 7 February 2011 and was re-arrested as a wanted person on 27 March 2011. He also failed to report to immigration recognizance on one occasion, in 2020.

D.  NRC and Related Proceedings

14.The Applicant lodged a torture claim in 2009 and applied for refugee status in 2011, both of which were handled in accordance with the then applicable mechanism.

15.After the implementation of the Unified Screening Mechanism (“USM”) in 2014, his NRC based on all applicable grounds other than torture risk was processed under the USM. His NRC was rejected by the Director in April 2015.

16.Apparently, there was an allegation that the Applicant might have omitted to submit some facts or evidence arising from his misunderstanding on what were the grounds applicable to his claim. The Applicant was then invited to submit further evidence to the Director in 2016, but he failed to do so. Nonetheless, the Director reconsidered his NRC and later rejected the claim by a further decision issued in December 2016.

17.Both decisions of the Director were then considered by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which rejected the appeal in September 2017.

18.In June 2022, the Applicant applied for leave to challenge the Board’s decision by way of judicial review in HCAL 457/2022. As the chronology indicates, the leave application by then was about 4½ years out of time. On 23 May 2023, the Court of First Instance (“CFI”) refused to grant an extension of the time and it dismissed the leave application.

19.In the CFI Decision, DHCJ To noted that his offered explanation for the delay in making the application was that he had never received the Board’s decision until about two weeks before he filed the JR application. The judge rejected the explanation as incredible, and held that the substantial and unexplained delay was itself and alone a basis for refusal of the application. Nevertheless, the prospects of success in the proposed judicial review were also considered and identified as being non-existent. I also note that the deputy judge thought that the Applicant’s conduct within the proceedings themselves carried “the hallmark of deliberately delaying the proceedings”.

E.  Steps towards Removal

20.As is usual in habeas corpus applications raised by non-refoulement claimants held in immigration detention, the two major obstacles standing in the way of removal have been the Applicant’s NRC and related proceedings and the need to obtain the necessary documents and permission for him to re-enter his country of origin.

E1.  NRC & Related Proceedings

21.I have set out the progress of his NRC and subsequent judicial review proceedings above.

22.When the present detention commenced on 28 November 2022, the Applicant’s judicial review leave application was pending the determination of the CFI. By letter dated 31 January 2023, the DOJ, on behalf of the Director, informed the Court that the Applicant was under detention and requested priority to be accorded to his case. As already said, the leave application was dismissed on 23 May 2023.

23.With effect from 7 December 2022, the Government has amended its removal policy such that once a detainee’s NRC and the subsequent judicial review has reached the stage of being dismissed by the CFI, the NRC and related proceedings will no longer be viewed by the Government as a removal obstacle. Therefore, since 23 May 2023, there has been no NRC related obstacle to removal.

E2.  Re-entry application & replacement passport

24.The remaining obstacle has been a practical one, being the need to obtain for the Applicant a valid passport for his return to Pakistan. The Director has been actively liaising with the Pakistan Consulate General to this end since December 2022.

25.The Applicant has not been cooperative in the process. The Director conducted a total of 8 interviews with the Applicant to ascertain his willingness to return to his home country. The Applicant consistently indicated that he was unwilling to return. An interview with the Consulate was arranged on 23 February 2023, but was eventually called off because the Applicant refused to attend.

26.In about April 2023, the Director started to explore alternative means to enable the Applicant’s re-entry into Pakistan, in light of his uncooperative attitude. For this purpose, meetings were conducted between the Director and the Consulate on three occasions, i.e. on 10, 17 and 29 May 2023.

27.On 1 June 2023, the Consulate issued an emergency travel document to the Applicant, with a validity period of 30 days.

E3.  Scheduled Removal on 9 June 2023

28.With all removal obstacles cleared (except this habeas corpus application), the Director then quickly proceeded to arrange for the Applicant’s deportation. I understand that a repatriation flight to Pakistan on 9 June 2023 has already been booked.

F.  Review of Detention

29.Throughout the period of present detention, the Applicant’s detention was reviewed thrice. The latest review was conducted by the Director on 2 June 2023.

30.On all occasions, continued detention was recommended, on broadly similar grounds: (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he poses or is likely to pose a threat to a security risk community; (c) he may abscond and/or (re)offend; (d) he does not have a close connection of fixed abode in Hong Kong; and (e) there are no other circumstances in favour of his release. The Director referred to his criminal records, absconding records, the progress of his judicial review leave application and the progress of obtaining a replacement passport for him.

G.  Applicable Principles

31.In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the CA 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.

H.  Applicant’s Submissions

32.As said in the beginning of this judgment, the Applicant has failed to identify any ground or argument in support of his habeas corpus application. But I bear in mind that it falls to the person detaining the Applicant to justify that the detention is and remains lawful.

33.At the oral hearing, the Applicant made submissions both by way of a short handwritten document and orally, and he submitted (in my summary of his points):

(1)  The matter should not be determined by references to what “may” happen or to issues of “maybe”. Therefore, to say that the Applicant “may” abscond and/or (re)offend should not support an argument for his continued detention.

(2)  His previous failure to attend a court hearing was the result of losing his wallet which had the court date, and his explanation was accepted by the court on the occasion he did appear, as there was no punishment imposed and his bail money was returned.

(3)  He still has other legal proceedings to complete, and other legal proceedings to attempt against his case.

(4)  He has not failed to comply with the terms and conditions of recognizance, except on one occasion when he reported the following day after he should have.

(5)  As to the delay in filing his notice of application for leave to apply for judicial review, he was never asked by the Immigration Department officers to file any application, and he was never arrested when he continued to report for recognizance. Usually a person who makes no attempt at appeal would be arrested, but he was not arrested and not asked to file any appeal.

(6)  He has written to his case officer to mention a friend who is willing to stand surety for him, and provided that person’s name and contact number.

(7)  He intends to appeal against the CFI Decision of 23 May 2023, and he has filled out the relevant forms, which he could have filed had he been released.

(8)  He has not asked to go back to Pakistan and he has not been taken to the Consulate.

(9)  Nevertheless, an air ticket has been obtained for him to be returned to Pakistan despite the fact that he has not asked to go and is unwilling to go.

(10)  Even though there is an air ticket for him, he “will not go”.

34.It is worth dealing with these last few points at once. As I pointed out to the Applicant during the hearing, the question is not whether the Applicant is “willing” to return to Pakistan. He is subject to a Deportation Order, which is extant and which is not the subject of any challenge. In other words, the Applicant will be deported and his own choice is, with respect, utterly irrelevant. The issue which arises in these proceedings is whether the Applicant’s detention to date and/or his continued detention until he is deported was, remains and will remain lawful in all the circumstances.

35.I note that the Applicant also handed up (1) the DOJ’s letter dated 31 January 2023 seeking the High Court’s assistance in according priority to dealing with the Applicant’s application for leave to apply for judicial review in HCAL 457/2022, as was ultimately dealt with by a hearing on 20 April 2023 and the decision on 23 May 2023 (referred to above); and (2) a document from the Tun Mum Magistrates’ Court, being a notice for payment of an outstanding fine of HK$10,300, owed by the Applicant and required to be paid in full by 31 August 2023. The notice also identifies that anyone who fails to settle a fine may be imprisoned.

36.I have taken all these matters into account this seems to me to be appropriate in the weighing and balancing exercise which arises on this application, and refer to them as appropriate below.

I.  Whether Detention has become unlawful

37.The Deportation Order remains extant. The detention was authorised by section 32(3) of the Ordinance which permits the detention of a person against whom a deportation order is in force pending his removal from Hong Kong. Therefore, there was and there remains clear prima facie lawful authority for the detention of the Applicant. The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

38.The starting point is that the Applicant has been detained up to today for a period of 193 days, or about 6½ months. This is not an insubstantial period, and it is against that period that the other factors are to be weighed and balanced.

39.However, I also note that the period of detention will cease on 9 June 2023, that is tomorrow – albeit upon repatriation of the Applicant to Pakistan.

40.I can address and apply the Hardial Singh principles broadly in turn, as follows.

41.I have no difficulty in finding that HS1 and HS4 have been satisfied. I accept that the Director has always been using the detention powers for the purpose of deportation. The Director’s efforts to secure an early repatriation in the instant case are to be applauded, especially in the proactive approach demonstrated in the endeavour to obtain a replacement travel document for the Applicant despite his uncooperativeness. The repatriation operation was also swiftly put in place once all the removal obstacles had been cleared.

42.I have acknowledged that a period of 6 to 7 months is not insubstantial. But I also recognise that both removal obstacles – being the judicial review leave application and the replacement travel document issue – were to a certain extent created by the Applicant. The judicial review leave application was made 4½ years out of time. As shown in DHCJ To’s decision dated 23 May 2023, the Applicant had no reasonable explanation for this lengthy period of delay and had also failed to provide any specific or proper grounds for seeking judicial review. While it is open for a man to stand on his legal rights, he does not have to do so.

43.Further, suggestion offered by the Applicant today, that he was somehow entitled to assume that he need not apply for judicial review (or to “appeal”, in his own words) because he was never arrested in the 4½ years, is no proper explanation for the delay. If the Applicant wished to pursue any challenge to the Board, it was up to him to do so, and to do so within the relevant time permitted for such proposed challenge. I expressly reject the idea that any person in the position of the Applicant is somehow entitled to drag out or delay any proposed challenged on the basis that no one has asked him to make it.

44.The replacement travel document also could have been issued much earlier had the Applicant chosen to be cooperative. But he chose not to do so.

45.In other words, the Applicant has been the substantial author of the length of the period of detention. His removal has been directly prevented or delayed by his own action and lack of action.

46.As I also note below, a clear statement as was made to the Court by the Applicant today that he does not want to go back to Pakistan and that he “will not go” is further evidence of his intention directly to prevent his removal and hence release from detention.

47.Given the leave application was made 4½ years out of time, and that the Court was requested to accord priority to this case as early as January 2023, it was reasonable for the Director to expect that the application could be dealt with fairly quickly. It was also reasonable to expect that a replacement travel document would be issued within a reasonable timeframe given the Director was in constant liaison with the Consulate which had been reacting positively to the Director’s requests.

48.As a result of the updated policy with effect from December 2022, even if the Applicant does seek to file a further application following the refusal in the CFI Decision dated 23 May 2023, that does not create any legal impediment to removal. It is long overdue for persons such as the Applicant to be disabused of the notion that merely continuing to file applications in Court somehow entitles them both to remain in Hong Kong and remain at liberty.

49.I would also give substantial weight to the fact that the Applicant had returned to Hong Kong despite being previously removed twice. Coupled with his absconding record, I agree that there is a real flight risk if the Applicant were to be released from detention. Absconding would frustrate the very purpose for which the power detention is granted.

50.Indeed, the more the Applicant stressed during the hearing that he “will not go” back to Pakistan, the more he identified the strength in the concern that he would abscond if released.

51.Further, it seemed to me that the very statement that he would not go – despite the facts that there is an extent and unchallenged Deportation Order against him, and that being repatriated would immediately effect his release from the continuing detention about which he complains in this proceedings – amounts in effect to a decision to continue to remain in detention.

52.Lastly, I think the matter relating to the outstanding fine, and the consequent possible but unquantifiable risk that the Applicant’s failure to pay the amount due by the deadline set of 31 August 2023, is of no real weight in the balancing exercise for present purposes.

53.Overall, weighing the period of detention – 193 days, or about 6½ months – against all the factors, including that repatriation is imminent and consequent release will be very soon, albeit in Pakistan, I am readily satisfied that the detention of the Applicant has remained and will remain or continue for period which is reasonable and lawful. HS2 and HS3 are satisfied.

J.  Result

54.For these reasons, I dismiss the Applicant’s application for writ of habeas corpus.

55.I make no order as to costs.

The applicant, acting in person

Ms Crystal Wong, Government Counsel, of the Department of Justice, for the respondent