Asim Hafiz Tahir Mahmood v. Director of Immigration and Another

HCAL 1433/2023

[2023] HKCFI 2460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1433 OF 2023

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D E C I S I O N

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A.  Introduction

1.The Applicant is subject to a Removal Order made on 24 November 2010, issued under section 19 of the Immigration Ordinance Cap 115 (“Ordinance”), as well as a Deportation Order made on 22 September 2023, issued under section 20 of the Ordinance. He has been held in immigration detention since 14 January 2023, that is for a period to date of 256 days (a little over eight months). Now, by application dated 17 August 2023, the Applicant applies for a writ of habeas corpus to seek his immediate release on recognizance.

2.I gave directions for the respondent Director of Immigration and Secretary for Security to file an initial response to the application, and also to bring this matter to hearing today.

3.At the hearing, the Applicant has appeared in person with the benefit of an interpreter. The Director and Secretary have been represented by Ms Cassandra Fung, Government Counsel, who signed the initial response.

B.  Background

B.1  Immigration Status and NRC

4.The Applicant is a Pakistani national who entered Hong Kong illegally on 22 November 2007. He has throughout had no close connection or fixed abode in Hong Kong. After referral to the Director on 30 November 2007, the Applicant was first released on recognizance on 16 December 2007.

5.The Applicant lodged a torture claim on 10 December 2007, and a further claim on 23 October 2013. After commencement of the Unified Screening Mechanism (“USM”), the Applicant’s claim was taken to be a non-refoulement claim (“NRC”) under the USM.

6.By October 2018, the Applicant’s NRC had been rejected by the Director in two decisions, and his subsequent appeals to the Torture Claims Appeal Board/Non-refoulement Petition Office (“Board”) had also been dismissed.

7.On 21 November 2018, the Applicant filed an application for leave to apply for judicial review against the dismissal decisions of the Board. On 25 January 2022, the Court of First Instance (“CFI”) refused that application.

8.As at the commencement of the current period of detention, and throughout, there has been no outstanding NRC-related proceedings (though I note that the Applicant says in his materials filed in support of this application that he intends to pursue matters further).

9.In any event, the Applicant’s claim having been dismissed by the CFI, there is now no impediment to removal under the Government’s updated removal policy.

B.2  Criminal Record and Absconding Record

10.The Applicant has been convicted on three occasions in Hong Kong, as follows:

(1)  On 7 January 2010, the Applicant was convicted of possession of an identity card relating to another person, and sentenced to 12 months’ imprisonment.

(2)  On 18 August 2016, the Applicant was convicted of robbery, and sentenced to 3 years and 8 months’ imprisonment.

(3)  On 7 December 2022, the Applicant was convicted of dealing with goods to which the Dutiable Commodities Ordinance applies, and sentenced to 10 months’ imprisonment.

11.It was following discharge from that last period of imprisonment that the Applicant was taken into immigration detention, starting the current period of detention on 14 January 2023.

12.The Applicant further failed to report recognizance as scheduled on 6 October 2014, and then absconded for approximately one year and five months until his arrest on 26 February 2016 (the arrest being for the offence of robbery for which he was subsequently convicted). He later claimed that the reason for that absconding was because of forgetfulness.

13.The Applicant failed to report recognizance on at least two further occasions, and once became uncontactable for several weeks in mid-2022, until he was arrested by the Police for the offence for which he was later sentenced to 10 months’ imprisonment on 7 December 2022.

B.3  Present Detention

14.For most of the period of the present detention, the Applicant has been detained pursuant to section 32(3A) of the Ordinance. Fairly recently, that changed whilst consideration of making a deportation order against him took place, so that he was detained under section 29(1) of the Ordinance. Since the making of the Deportation Order, he has been held pursuant to section 32(3) of the Ordinance.

15.Throughout the period of the present detention, the Applicant has consistently expressed unwillingness to return to Pakistan. Further, whilst he has on occasions expressed being willing to comply with the re-entry formalities, he has in fact repeatedly failed to cooperate with those formalities – by refusing to submit the re-entry application or to attend an interview with the Consulate General of the Islamic Republic of Pakistan.

16.Nevertheless, the Director has continued the efforts to effect the Applicant’s removal, requesting the Consulate to issue a replacement travel document for the Applicant. Ultimately, those efforts bore fruit when, on 31 August 2023, the Applicant’s emergency travel document (with validity up to 30 September 2023) was issued by the Consulate, notwithstanding the Applicant’s adamant unwillingness and/or refusal to cooperate.

17.A flight ticket for the Applicant’s repatriation to Pakistan has been issued for 28 September 2023.

18.On various occasions during the period of the present detention, the Applicant’s detention has been reviewed and continued detention has been recommended.

C.  Applicable Principles

19.The applicable principles in the present context are well established. They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781. 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 any individual case.

20.The burden is on the respondent to an application for habeas corpus to justify the continued detention as remaining lawful.

D.  Applicant’s Submissions

21.As well as some standard references to previous authority in habeas corpus cases – of the sort apparently routinely added to the materials filed with many similar applications – the Applicant made some submissions with specific reference to his own position. Those submissions might be summarised as follows:

(1)  He has been detained since 14 January 2023, for a period which is now unlawful and unfair.

(2)  He is being detained at TGCI as though he were a convicted prisoner, but he has already served his sentence for previous crimes committed.

(3)  He has a guarantor, with whom he would stay if released on recognizance, and he would fulfil and obey any other requirements needed for such release.

(4)  He has been suffering stress, fatigue and mental disorder from his detention.

(5)  He cannot go back to Pakistan because of a land dispute with a person who may harm him or kill him.

(6)  He will file a further case very soon, either to pursue an appeal from the CFI’s decision or to take the matter to the next step.

(7)  He will not commit crimes similar to those committed by him previously.

(8)  It is in any event unhelpful to discuss in terms of what risks may materialise in future if he were to be released on recognizance. Any view that he might abscond or pose a security threat is false and untrue, and only the Director’s assumption.

(9)  He asks the Court to look at his case and show kindness and mercy and grant him “bail, so that [he] can start [his] life here in Hong Kong”.

22.Some of those submissions exhibit a misunderstanding as to the true nature of the current habeas corpus application. On this application, the Court does not decide whether the Applicant should or should not be removed from Hong Kong. Such questions arise, and are dealt with, in the context of the NRC. Not does the Court decide whether the Applicant can start a new life in Hong Kong. The Applicant will be removed, and the question which the Court decides on this application is whether the Applicant has continued to be detained, and can continue in future to be detained, lawfully – pending his removal from Hong Kong.

23.As already indicated above, though the Applicant now says he wishes to pursue his NRC further, that would not create a legal impediment to removal.

24.At the hearing, the Applicant made the following points in submission (in my summary of them):

(1)  His case is complex and complicated. He came to Hong Kong in 2007 to protect his life.

(2)  In 2010 he was convicted of the identity card offence but was not sent back to his country at that time.

(3)  In 2018 he was convicted of robbery, and served the prison sentence followed by four months of immigration detention, and again was not deported at that time.

(4)  In 2023, he was convicted in the illicit cigarettes case, and now and “out pass” has been obtained for him, and a flight ticket has been purchased, without his consent.

(5)  He has spent 17 years in Hong Kong, and cannot now go back.

(6)  He has been treated for a mental health condition in January/February 2022, but not given any medication. (Two letters were handed to the court relating to the Applicant’s apparent request for treatment at the Tai Po Hospital or Kwai Chung Hospital in June 2023.)

(7)  He has other medical records, though he has not brought them to court, but will do next time.

(8)  The conditions are affecting him mentally, and he might commit suicide.

(9)  Therefore, he asks that he be allowed to stay in Hong Kong one year for treatment, at the end of which he would definitely leave.

25.Save as already indicated, I bear the Applicant’s points in mind and give them such weight as seems to me to be appropriate to the circumstances.

E.  Has the Detention Become Unlawful?

26.There has throughout been clear prima facie lawful authority for detention of the Applicant under the sections of the Ordnance identified above. The question, therefore, arises as to whether the overall circumstances of detention have rendered it unreasonable and hence unlawful.

27.That question requires weighing and balancing the various factors identified, and in particular by reference to the Hardial Singh principles. But, the starting point is the length of detention – here 256 days, or a little over 8 months – against which all other factors are to be weighed and balanced.

28.It is clear that HS1 is satisfied. The Director/Secretary intend to deport the Applicant and have only used the power to detain him for that purpose.

29.It is also clear that HS4 is satisfied. The Director/Secretary have acted with reasonable diligence and expedition to effect the Applicant’s removal. This is evidenced by the repeated steps to persuade the Consulate to issue the Applicant with the necessary travel document, despite the Applicant’s adamant refusal to cooperate in that process. Ultimately the diligence has borne fruit, with the travel document now provided to the Applicant.

30.The lengthening of the period of the present detention is almost wholly attributable to the Applicant’s own uncooperativeness, leading to the delay in the issuance of that replacement travel document. He has refused to cooperate, notwithstanding that he has been reminded on numerous occasions that failure to cooperate would lengthen the period of detention. It lies ill in the mouth of the Applicant to complain about the unreasonable length of detention, when he has been the primary author of the added length. I give this factor significant weight, as is appropriately permitted under section 32(4A)(d) of the Ordinance.

31.I also accept Ms Fung’s submission that there is a high risk of the Applicant absconding or re-offending, were he to be released on recognizance, seen in the light of his previous history.

32.The offences committed by the Applicant were serious, involving months and years of imprisonment. The crime of robbery is a serious crime of a violent nature. The crimes have consistently been committed whilst on recognizance. The Applicant has demonstrated this respect and disregard for the rule of law and the requirements of being released on recognizance. The risk of re-offending is substantial, and the potential consequences of it are also substantial.

33.As to absconding, the previous history identifies a substantial risk that the Applicant would abscond. This is also the inference properly to be drawn from his flat refusal to cooperate with obtaining a replacement travel document, and his repeated statements that he is unwilling to return to Pakistan. Absconding would defeat the very purpose of the Removal Order, and the detention pending removal.

34.There is no sufficient close connection to Hong Kong as provide any real weight against those other factors. Further, I give no weight to the Applicant’s complaint about the conditions under which he has been detained.

35.In any event, the Applicant can be released from detention a few days from now, on 28 September 2023 (albeit in Pakistan).

36.As to the Applicant’s claimed medical condition, I accept that he has previously received medical care in relation to his mental health. But the letters handed up suggest that he has had no recent psychiatric consultation, and there is no reason to think that the Applicant has not received – and would not continue to receive – appropriate medical attention in accordance with the policy and practice of the CSD in whose custody he is held. Detainees have access to 24-hour care upon request, and will be referred to the relevant medical officer or outside hospital for further attention as required. The Applicant’s case has been handled in accordance with that policy and practice. The Applicant says that he has been offered an appointment in December 2023, but there is no point in that if he has already been removed.

37.As already indicated, it is no part of the question which arises on this application as to whether the Applicant should be permitted to spend another year in Hong Kong for treatment as he suggests, notwithstanding that he is subject to both a Removal Order and a Deportation Order. It may also be necessary to clarify that a person subject to such orders does not have to give consent before that person can be removed or deported. The Applicant’s complaint that he has been provided with a travel document and flight ticket without his consent is simply an expression of disappointment that his own frustrating and obstructing tactics have failed.

38.In my view, HS2 and HS3 are satisfied. Weighing and balancing all the various factors against the length of detention to date, the Applicant has been detained, and will continue to be detained, only for a period that is reasonable in all the circumstances. Far from the contrary position, it is apparent that deportation will be able to be affected within that reasonable period. Indeed, removal or deportation can and should happen within three days.

F.  Result

39.The Applicant’s application is dismissed, with no order as to costs.

The applicant, acting in person

Ms Cassandra Fung, Government Counsel, of the Department of Justice, for the respondents