Tarab Ul Hassan Naseer v. Director of Immigration and Another

HCAL 1605/2023

[2023] HKCFI 2694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1605 OF 2023

________________________

________________

___________________________________

REASONS FOR JUDGMENT

___________________________________

A.  Application

1.By an ex parte application dated 8 September 2023, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

2.At the end of the hearing I dismissed the application with reasons to be handed down later. These are my reasons.

B.  Background of Applicant

3.The Applicant is a Pakistani national born in 1991 who entered Hong Kong illegally on 15 April 2015 and surrendered to the Police on 26 May 2015. He raised a non-refoulement claim (“NRC”) on 26 August 2015.

4.On 31 October 2017, a deportation order was made against the Applicant (the “Deportation Order”). The Applicant’s passport had expired in November 2022.

5.Whilst being on recognizance, the Applicant was convicted of three counts of indecent assault and was sentenced to a total of 10 months’ imprisonment on 14 March 2023. After discharge from prison on 5 June 2023, the Applicant was transferred to the Tai Tam Gap Correctional Institution and has been detained under section 32(3) of the Ordinance pending his removal under the Deportation Order.

6.At the time of the hearing, the Applicant has been detained for 135 days.

C.  NRC related proceedings

7.The Applicant’s NRC was based on alleged fear of being killed due to religious dispute.

8.The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 21 June 2017 by a notice of decision (the “Director’s Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 20 September 2017 (the “TCAB Decision”).

9.The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision was dismissed by the Form CALL-1 in HCAL 722/2017 dated 14 September 2018 (the “JR Decision”). The Applicant’s application for extension of time to appeal against the JR Decision was dismissed on 25 June 2021.

10.The Applicant’s renewed application to the Court of Appeal for extension of time to appeal against the JR Decision was dismissed on 9 December 2021.

11.The Applicant had filed a Notice of Motion on 16 December 2021 to the Court of Appeal for leave to appeal to the Court of Final Appeal under CAMP 247/2021. The application was dismissed on 28 January 2022.

12.The Applicant’s application for leave to appeal to the Court of Final Appeal was dismissed on 6 January 2023 under FAMV 197/2022.

13.There is thus no legal impediment to the Applicant’s removal due to any outstanding NRC related proceedings.

14.In any event, according to the updated removal policy of the Immigration Department since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

D.  Criminal Record & Sentencing Record

15.The Applicant’s criminal and sentencing records are as follows:

Date of Conviction	Offence	Period of Sentence
28 July 2016	Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully	15 months
14 March 2023	Indecent assault	10 months
	2 counts of indecent assault	4 months each (concurrent)

16.The Applicant had failed to report recognizance on 17 June 2022. He did not report to the Immigration Department until he was arrested by the Police on 14 November 2022.

E.  Steps towards Removal

17.Since his detention in June 2023, the Applicant indicated his unwillingness to return to Pakistan during interviews conducted at the Tai Tam Gap Correctional Institute. He also refused to co-operate with re-entry formalities in applying for a valid travel document.

18.In preparation for the repatriation of the Applicant, the Director first issued a letter to the Pakistan Consulate-General (the “Pakistan CG”) on 30 November 2022 to seek assistance for the Applicant’s repatriation. After the Applicant was detained in June 2023, in view of the Applicant’s failure to co-operate in completing the re-entry formalities in applying for a valid travel document, the Immigration Department proactively liaised with the Pakistan CG between 27 June 2023 and 11 September 2023, including the issue of further letters and emails and visits to the Pakistan CG.

19.On 21 September 2023, the Pakistan CG issued an emergency travel document to the Applicant which was valid for 30 days (until 21 October 2023). A repatriation flight on 19 October 2023 has been arranged for the Applicant.

F.  Applicable Principles

20.In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

21.In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

22.The Applicant has set out his grounds for application in his affirmation dated 5 September 2023 (filed on 8 September 2023). In summary, they are as follows:

(1)  The Applicant relies on Articles 28 and 41 of the Basic Law.

(2)  The Applicant claims that the detention has become unreasonably long.

(3)  The Applicant submitted that he had not missed any interviews arranged by the Immigration Department.

(4)  The Applicant is willing to undertake to not commit further offences.

(5)  The Applicant is willing to undertake to not abscond.

(6)  The Applicant cannot be removed within a reasonable time.

23.The Applicant also relies on various quotes from the Administrative Law volume of the Halsbury’s Laws of Hong Kong as well as certain habeas corpus cases.

24.At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1)  Whatever mistake he had committed in the past, he had already served the sentence.

(2)  He wished to pursue his NRC further.

(3)  He has two children in Hong Kong.

25.I shall bear these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

26.The Deportation Order was issued on 31 October 2017 and remains valid. The Applicant has been detained from 5 June 2023 to 17 October 2023 (135 days) under section 32(3) which permits the detention of a person against whom a deportation order is in force pending his deportation from Hong Kong.

27.Thus, there was and remains clear prima facie lawful authority for the detention.

28.Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

I.  Whether Detention has become unlawful

29.The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(1)  The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  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 (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

30.The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

31.I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

32.The starting point is the length of the detention – 135 days – against which all the other factors must be weighed and balanced.

33.For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1)  There is no dispute that from the very beginning of the Applicant’s detention in June 2023, the Applicant has all along refused to co-operate in obtaining a valid travel document to enter Pakistan.

(2)  But for the Applicant’s repeated refusal to co-operate in obtaining a valid travel document, his repatriation, and hence release from detention, could have been proceeded with earlier.

(3)  I agree with Mr Hor that the length of the current detention was at least partly attributable to the Applicant’s self-inflicted hindrance and thus it lies ill in the mouth of the Applicant to complain about the length of the detention. He had consciously and deliberately refused to co-operate, which led to the impossibility of earlier deportation. The Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonably long. This is a significant factor that has been taken into account.

(4)  Deportation is imminent with a repatriation flight scheduled for 19 October 2023, 2 days after the hearing. I am satisfied that there is sufficient prospect of removal within a reasonable timescale.

(5)  The Applicant has been convicted of various offences (some of which are violent in nature) in 2016 and recently in March 2023. I am of the view that there is a risk of re-offending. His undertaking to not commit further offences is of little weight.

(6)  Given the Applicant’s clear attitude that he is unwilling to be repatriated, and with no local connection, the risk of absconding is real. This is especially so when there is no more impediment to his removal. He had also absconded previously. The allegation that he has 2 children in Hong Kong was only first raised at the hearing. There is no evidence in support of such claim.

(7)  Overall, weighing the period of detention – around 135 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

34.I am satisfied that HS4 is satisfied for the following reasons:

(1)  The Director had, soon after the commencement of the Applicant’s detention, in June 2023, sought the assistance of the Pakistan CG to issue the Applicant with a travel document upon discovering that his passport had expired.

(2)  The Director had proactively liaised with the Pakistan CG to obtain an emergency travel document for the Applicant (as set out in paragraphs 17 – 18 above.

(3)  A repatriation flight has been arranged as soon as the emergency travel document became available.

(4)  I am thus of the view that the Director had diligently pursued the Applicant’s deportation.

35.Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

36.Therefore, there is no substance in the Applicant’s reliance on Articles 28 and 41 of the Basic Law as I find that the detention is lawful and not arbitrary.

J.  Result

37.For these reasons, I dismiss the Applicant’s application for writ of habeas corpus with no order as to costs.

The applicant, acting in person

Mr Alvin Hor, Senior Government Counsel, and Mr Mike Yau, Government Counsel, of the Department of Justice, for the 1^st and 2^nd respondents