Farrukh Zaib v. Hong Kong Sar Government

HCAL 1077/2023

[2023] HKCFI 1915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1077 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 Removal Order made against him on 21 September 2017. Since 14 September 2022, he has been held in immigration detention under section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”), which authorises the detention of a person against whom a removal order has been made pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 314 days, or a little over 10 months.

2.On 3 July 2023, he applied for a writ of habeas corpus seeking his immediate release from detention. On 5 July 2023, I gave leave for the Government to file and serve a written response and the necessary directions to bring the matter to today’s hearing.

3.At the hearing, the Applicant appeared in person with the benefit of an Urdu/English interpreter. The Government was represented by Ms Kristy Tse, Government Counsel, who also signed the written response.

4.This is my Decision.

B.  Background Leading to the Present Detention

5.The Applicant is a Pakistani national, born in 1986. He was first spotted by the police in Hong Kong on 13 November 2012 as a suspected illegal immigrant. On 15 November 2012 he was referred to the Immigration Department for further handling, and after a short period of detention was subsequently released on recognizance on 24 December 2012.

6.On 16 November 2012, he lodged what has now become known as a non-refoulement claim (“NRC”). He has since then been staying in Hong Kong as a non-refoulement claimant during the past 10 or so years.

7.Between November 2012 and November 2021, he exhausted all the available administrative and judicial avenues, up to the Court of Final Appeal (“CFA”), in an attempt to prove his NRC. After failing at the level of the CFA, he attempted to lodge a what is called “subsequent claim” under the Ordinance in December 2021, which request was rejected by the Director in March 2022.

8.Therefore, all NRC-related proceedings had already been concluded before the Applicant was taken into immigration detention in September 2022.

9.During his long stay in Hong Kong, he was largely granted release on recognizance by the Director. Other than being having to report recognizance on a regular basis, he was otherwise allowed to live freely in society.

10.It is said that he failed to report recognizance on two occasions in the past. The first occasion occurred on 9 September 2019, but he surrendered himself to the reporting office a week later on 16 September 2019, and the Director continued his recognizance on the same day. As regards this first occasion, the Applicant has correctly pointed out this morning that there is an error on the Notice of review of detention provided to him which suggests that he absconded from 9 September 2019 to 16 September 2022 – a period during which the Applicant was openly pursuing his NRC through the courts. I accept that the relevant period, if it is to be regarded as absconding, was one of only a week, and the reference to “2022” in the Notice must be a typographical error (itself an obvious error because of the reference in the same Notice to the second period of alleged absconding which commenced on 21 March 2022).

11.It is said that he failed to report recognizance the second time on 21 March 2022. He was intercepted by an immigration officer during an operation on 14 September 2022, on which date his recognizance was revoked and he has since then been taken into immigration detention till now. I will return to the Applicant’s explanation for that period, below.

12.Release of the Applicant on recognizance has not been recommended upon review of detention, consistently on the grounds that (1) the Applicant’s removal is going to be possible within a reasonable time; (2) he may abscond; (3) he does not have close connection or fixed abode in Hong Kong; and (4) there are no other circumstances in favour of his release.

C.  Steps to Effect Removal

13.It would be fair to say that the Director has been acting with diligence and promptitude in seeking to effect the Applicant’s removal since he was taken into detention.

14.As already remarked, the Applicant’s NRC related proceedings were no longer an obstacle to removal by the time the present detention began on 14 September 2022. Apart from his own deliberate obstruction (as will be set out below), the only remaining obstacle to his removal was his expired Pakistani passport which needed replacement.

15.The Director started to liaise with the Consulate General of Pakistan for replacing the Applicant’s passport as early as 2018. An emergency travel document (“ETD”) was issued on 20 June 2019, with a validity of 30 days. At that time, the Applicant still had extant legal proceedings arising from his NRC, which functioned as an impediment to removal under the removal policy then adopted by the Government. The ETD expired before it could be put to use.

16.On 25 March 2022, presumably in anticipation of an intended operation to return the Applicant to Pakistan, the Director renewed the liaison with the Pakistani Consulate for the purpose of obtaining another ETD. The efforts continued after the Applicant had been taken into detention in September 2022, culminating in the issuance of another ETD on 5 January 2023, with validity expiring in 30 days.

17.The Director then quickly put together a repatriation operation on 3 February 2023, to send the Applicant back to Pakistan by flight. But the Applicant reacted strongly and refused to proceed to check-in counter on that day, resulting in the cancellation of the operation.

18.The Director then arranged a second operation on 16 March 2023. But this operation was also called off for the same reason.

19.As of now, a third repatriation operation has already been put in place, with the flight scheduled for 26 July 2023, i.e. 2 days from now.

20.The Director has from time to time liaised with the Pakistani Consulate for extension of the ETD. The ETD was last extended to 27 September 2023.

21.Throughout the various interviews conducted by the Director with the Applicant since he was taken into detention, the Applicant has consistently expressed unwillingness to return to his home country. At points, he said he would be willing to go after he has settled his property in Hong Kong, which is another way of saying that he was or is not willing to go as of now.

D.  The Applicant’s Submissions

22.In the affirmation filed in support of his habeas corpus application, the Applicant exhibited various documents.

23.Among them is a set of “Notice of Review of Detention” issued by the Director and served on the Applicant on 26 April 2023. As shown in the notice, the Director decided to continue to detain the Applicant on the broad grounds that (a) his removal is going to be possible within a reasonable time; (b) he may abscond and/or (re)offend; (c) he does not have close connection or fixed abode in Hong Kong; and (d) there are no other circumstances in favour of his release.

24.Then there is a three-page long handwritten note appearing to seek to rebut what the Director relied upon in support of continued detention as shown in those notices:

(1)  Regarding the imminence of removal, the Applicant said his judicial review proceedings and subsequent claim were refused. But he did not receive any phone calls or letters from the Director so he does not know when his cases were refused. He said after his subsequent claim was rejected, he was trying to apply for another round of judicial review but the Immigration Department does not agree with that “appeal”.

(2)  In replying to the observation that he had previously absconded, he disagreed that he once absconded in September 2019. He said he always went to report recognizance. It was true that he failed to report recognizance in March 2022, but that was only because his officer told him over the phone that there was no need for him to come to report. Nobody called him again during that period to tell him to come to report recognizance.

(3)  Regarding his local connection, he said he had made many residents friend in Hong Kong and he has many cousins. He will not be difficult to locate him. The Director knows his contact number and his home address. They arrested him directly from his home last time.

(4)  In reply to the comments that he had delayed removal by his own action, he said the Immigration Department once brought him to the Pakistani Consulate in 2018 but no air ticket was issued to him afterwards. He then applied for judicial review.

25.Then there is a letter dated 6 March 2023, issued by the Director to the Applicant. Judging from the content of the letter, it seems that the Applicant had provided further materials to the Director in relation to his NRC, by way of letters. In reply to those materials, the Director said the Applicant’s request for making a subsequent claim had already been refused on 22 March 2022 and no further action would be taken in respect of the Applicant’s letters or NRC.

26.The Applicant also attached two letters in a foreign language, dated 2 December 2022 and 15 February 2023 respectively. Apparently issued by the police station (as shown by a chop affixed to the letter) in perhaps where the Applicant came from.

27.I note his comments regarding his local connection in Hong Kong and that he disputes his absconding record, but besides those two points, I see little in the affirmation which is relevant to this habeas corpus application.

28.At the oral hearing, the Applicant further submitted (in my summary of his points):

(1)  He has been in Hong Kong for the last 10½ years or so, and has a clear criminal record.

(2)  Notwithstanding that, he was suddenly taken into detention on 14 September 2022, when police and immigration officers came to his home and arrested him as though he was a gangster.

(3)  He had committed no crime, and does not know why he was treated as a criminal.

(4)  He had previously reported regularly on recognizance, until he was told in March 2022 that he need not report again until he was informed to do so by letter. That is why he had not reported in the period from March 2022 until he was taken into detention in September 2022. Though the Applicant cannot prove that now, he invites the Court to find the CCTV for the afternoon on which he did report to 2 officers, who he says told him he need not report again until called to do so.

(5)  He asks the question how a person who has been living in Hong Kong for 10 years can suddenly be taken, not just from his home but for the purpose of removing him from Hong Kong, without any notice.

(6)  The allegations made against him to seek to justify his detention are all false.

(7)  That is why he has made this application.

(8)  However, he has been told by his case officer that the application will fail. Therefore, he asked a question whether this application has already been decided by the immigration authorities, or whether it will be decided by the Court.

(9)  He seeks justice from this Court.

(10)  The conditions in which he, and other detainees, are detained are unhygienic. The toilets are dirty, and there are many cockroaches. Being kept in such conditions for over 10 months is very difficult.

(11)  No NGOs or others visit to assess the conditions in which detainees are held.

(12)  If a detainee makes a complaint, the officers will treat that person badly so as to discourage him from raising an issue again.

(13)  On one occasion, he was caught in an affray and beaten, but he was put into isolation for seven days without medicine or treatment for his bleeding lips and head. He called the police, who came to see him and gave him a police report number, but who took no action. He asks the question whether that is justice.

(14)  Other detainees who have criminal records have been released, whereas he has no criminal record and continues to be detained.

(15)  Rather than await the determination of this application, a repatriation flight has already been booked for him.

29.As regards some of those points, I make the following comments at once:

(1)  Whilst it is correct that the Applicant has been in Hong Kong for over 10 years, he has been an over stayer for most of that period.

(2)  In other words, he has remained in Hong Kong illegally, albeit that his presence in Hong Kong has been tolerated pending the determination of his NRC and NRC-related proceedings.

(3)  The Applicant is, and he knows he is, subject to a Removal Order.

(4)  Therefore, he can have had no proper expectation except that he would be removed from Hong Kong (unless his NRC were to be accepted).

(5)  That proper expectation does not change simply because the Applicant’s presence in Hong Kong has been tolerated for many years.

(6)  Whilst the absence of any criminal record means that the Applicant is, and should be treated as, a man of good character, that does not change the fact that he remains in Hong Kong illegally and is liable to removal.

(7)  The question to be decided on this application is whether the Applicant’s continued detention remains lawful, namely whether he can continue to be lawfully detained until he is removed from Hong Kong.

(8)  The Applicant has claimed in these proceedings that his continued detention has become unlawful, and he is entitled to make (and has made) submissions to seek to identify why he says that is the position.

(9)  The Applicant does not have to prove that his detention is unlawful. Instead, the burden is on the Director (as the person detaining the Applicant) to satisfy the Court that the detention continues to be lawful in all the particular circumstances of this case.

(10)  The individual views of any case officer, or other person within the immigration Department, as to the overall merits of this application are essentially irrelevant. As I made clear to the Applicant during the hearing, it is the Court which will decide this application.

(11)  The reference to ‘the particular circumstances of this case’ is important, as each case will be decided (by the Court) on its own particular circumstances. Hence, reference to the situation of other cases is unlikely to be very helpful in determining this case.

30.Subject to those comments, I will bear the Applicant’s points in mind in my analysis below, and accord them such weight as seems to me to be appropriate to the circumstances.

E.  Applicable Principles

31.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.

32.The essence is that an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

33.As already stated, the burden is on the Director in this case to justify continued detention as remaining lawful, to be judged against the overall and particular circumstances of the individual applicant’s case.

F.  Whether Detention has become unlawful

34.The Removal Order is extant. Therefore, it cannot be disputed that 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.

35.The starting point is that the Applicant has been detained up to today for a period of 314 days, or a little over 10 months. This is obviously not a short period. It is against that period that the other factors are to be weighed and balanced.

36.But, on the application of the Hardial Singh principles to the facts of this case, I have no hesitation in concluding that the present detention has and will remain for a period which is reasonable and lawful. In reaching that conclusion, I have addressed and applied the Hardial Singh principles broadly in turn, as follows.

37.The Director has always been using the detention powers for the purpose of removal of the Applicant from Hong Kong, and he has been acting with diligence and expedition throughout the entire period in seeking to effect that removal. This is evident in the chronology set out above. HS1 and HS4 are satisfied.

38.The only obstacle to removal when the detention started was the need to replace the Applicant’s expired passport, which the Director had already managed to do so once before, years before the present detention had begun. It could reasonably be expected that another replacement travel document or ETD could be obtained within a reasonable time, which was what has in fact transpired. Since the new ETD was issued on 5 January 2023, there has been no obstacle standing in the way of the Applicant’s ultimate release from detention (albeit upon removal to Pakistan) except his own conscious decision to frustrate every removal operation.

39.He could have been released from detention upon removal as early as 3 February 2023 – the date of the first repatriation operation. By then, he had been detained for about 4½ months. That he has frustrated his removal, and hence his own release from detention, is a matter to which I attribute significant weight pursuant to section 32(4A)(d) of the Ordinance.

40.I acknowledge the personal inconvenience which might arise from the Applicant’s having been taken suddenly into detention with no notice. But I have already pointed out that the Applicant can have had no proper expectation that he would not at some point be removed from Hong Kong, once his NRC was not accepted, and once the remaining practical obstacle to removal was removed by the issue of an appropriate travel document.

41.I give little weight to the allegations relating to the particular conditions of detention, in the context of this case. I also note that (but give no particular weight to) Ms Tse’s submission that the records show that the Applicant was placed in isolation only for one day, after disciplinary proceedings. I might also comment, however, that the Applicant’s complaints about the conditions of detention – which Ms Tse for the Director says have not previously been made – ring somewhat hollow against the Applicant’s frustration of the process by which he would be released from that detention.

42.I note that the Applicant has no criminal record and has a relatively brief absconding record, which he has disputed. I am in no position to resolve the contest as to whether or not the Applicant was told that he need not report for recognizance, when he did so on the last occasion in March 2022. But I can proceed for present purposes, even on the assumption that there was at least a legitimate misunderstanding. I also acknowledge some force in the Applicant’s submission made by reference to the point that there was no difficulty in locating him, as he was taken into detention from his own home in September 2022. Therefore, I give very little weight to the allegation of absconding period between March and September 2022.

43.However, in view of the Applicant’s strong resistance demonstrated in the airport leading to the cancellation of the two previous repatriation operations, I would agree that there is now plainly a real and substantial risk that he would not surrender himself to the upcoming repatriation operation – which is scheduled the day after tomorrow – if he is now to be released from detention. I take into account that the period of detention in future is short, as the Applicant is due to be repatriated within the next few days. In other words, he will soon be released from detention, albeit upon that repatriation.

44.Looking at matters overall, and weighing all the other factors against the detention period of 314 days, I am satisfied that the detention of the Applicant has remained and will remain or continue for a period which is reasonable and lawful. In the circumstances, HS2 and HS3 are satisfied.

G.  Result

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

46.I make no order as to costs.

The applicant, acting in person

Ms Kristy Tse, Government Counsel, of the Department of Justice, for the respondent