Hassan Waheed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1679/2023

[2023] HKCFI 2888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1679 OF 2023

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D E C I S I O N

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1.  Introduction

1.1The applicant is subject to a Removal Order made on 5 October 2018 pursuant to section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”). He has been held in immigration detention at the Tai Tam Gap Correctional Institution since 14 July 2023 pursuant section 32(3A) of the Ordinance. As at the date of the hearing before me on 8 November 2023, the applicant has been detained for a period of 118 days.

1.2On 19 September 2023, the applicant applied for a writ of habeas corpus, naming the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) as the respondent and the Director of Immigration (“Director”) as the Interested Party.

1.3At the hearing, the applicant appeared in person, with the benefit of an interpreter, and the Director was represented by Ms Augusta Wong, Government Counsel. As submitted by Ms Wong, the power to authorize detention under section 32(3A) of the Ordinance is conferred on the Director, Deputy Director of Immigration or any Assistant Director of Immigration. The response filed and signed by Ms Wong was made for the Director only.

2.  Background

2.1The applicant is a Pakistani male born on 1 April 1968. He claimed to have entered Hong Kong illegally from the Mainland on 7 January 2015. On 20 January 2015, the applicant surrendered himself to the Immigration Department for illegal remaining. He was released on recognizance on 4 March 2015.

2.2As stated above, a Removal Order was made against the applicant on 5 October 2018. The applicant declared on 10 October 2018 that he did not intend to appeal against the Removal Order.

2.3Whilst released on recognizance, on 26 September 2021, the applicant was arrested by the Customs and Excise Department for (1) Possession for sale or for any purpose of trade or manufacture goods to which any forged trade mark was applied and (2) Establishing and joining in any business while being a person in respect of whom a removal order is in force. On 17 May 2022, the applicant was convicted of the said offences and was sentenced to a total of 21 months’ imprisonment.

2.4According to the applicant, he is married and his wife, son and brother are all in Pakistan. He has no local ties or connections in Hong Kong.

3.  The applicant’s non-refoulement claim (“NRC”) and related proceedings

3.1On 3 June 2015, the applicant indicated his intention to lodge a NRC. On 5 July 2018, the applicant’s NRC was rejected by the Director. His appeal/petition to TCAB was subsequently dismissed on 31 October 2019. In essence, TCAB concluded that the applicant’s claim that he would be harmed by his creditors failed to establish the requisite factual basis to support his claim for protection under any of the four applicable grounds under the Unified Screening Mechanism.

3.2On 7 November 2019, the applicant applied for leave to apply for judicial review against the decision of TCAB (HCAL 3319/2019). On 27 July 2023, the Immigration Department instructed the Department of Justice to request for priority to be accorded to the applicant’s leave application. On 20 September 2023, DHCJ To dismissed the leave application as he did not find any error of law or procedural unfairness at any stage of the non-refoulement proceedings.

4.  Current detention and its reviews

4.1On 14 July 2023, the applicant was discharged from prison and he has since been held in immigration detention. As recorded in the Notice of Detention dated 19 July 2023, it was decided that the applicant should be detained (for the purpose of removal from Hong Kong) because (1) he may abscond or (re)offend and (2) he was re-arrested during recognizance.

4.2The applicant’s passport was valid until 27 February 2019. Even before his current detention which commenced on 14 July 2023, the Immigration Department had already written to the Consulate General of the Islamic Republic of Pakistan (“CGP”) on 10 February 2020 requesting the issuance of necessary travel document for the applicant’s home passage or confirmation of applicant’s re-entry in writing. Throughout his current detention, the applicant has expressed unwillingness to return to his home country and refused to complete re-entry application forms, take photos and attend interview with CGP. Generally speaking, a travel document would be issued to the applicant within two to three weeks subject only to the applicant’s cooperation in completing the re-entry formalities stipulated by CGP.

4.3In the latest review of detention conducted on 26 October 2023, it was decided that release of the applicant on recognizance was not warranted. In addition to the grounds initially relied upon, the Director specifically took into account, inter alia, (1) the Update Removal Policy (2) the applicant’s repeated expression of his unwillingness to return to his home country, (3) there was a real risk that the applicant, if released, would commit further offences and (4) there was a high propensity for absconding.

5.  The applicable principles

5.1The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781. I have in particular borne in mind the summary set out at §164 thereof.

5.2I remind myself that the burden is on the respondent to an application for a writ of habeas corpus to justify the lawfulness of the applicant’s detention (in this case the Director as the Interested Party).

5.3Further, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim. The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

6.  The applicant’s submissions

6.1The grounds advanced by the applicant at the hearing may be summarized as follows (the applicant was reluctant to rely on his written materials as they were drafted by a friend and he was unsure that they truly represented his position due to his limited ability to read English).

(1)  He had already served a lengthy term of imprisonment and was immediately thereafter kept in immigration detention.

(2)  DHCJ To’s dismissal of the leave application is recent and he is in the process of challenging that dismissal.

(3)  He had never failed to comply with the reporting conditions of recognizance and emphasized that he had initially surrendered himself to the authorities.

(4)  He has a friend who is willing to act as his guarantor and has provided a residential address.

7.  Analysis

7.1Throughout the applicant’s detention period, there has been prima facie lawful authority to detain the applicant pursuant to section 32(3A) of the Ordinance.

7.2The question which falls for determination is therefore whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 118 days, against which the various other factors must be weighed and balanced.

7.3I accept that, throughout the period of detention, the intention of the Director is to remove/deport the applicant and that has been the only purpose of the applicant’s detention. HS1 is satisfied.

7.4I also accept that the Director has acted with diligence and expedition to effect the applicant’s removal. This is amply demonstrated by the attempts made, despite the applicant’s uncooperative stance, to complete the reentry formalities. For example, during the current period of detention, at interviews conducted on 19 July, 25 July, 16 August, 4 September and 10 October 2023, the applicant expressed in unequivocal terms his unwillingness to return to his home country. At interviews on 24 August and 29 September 2023, the applicant also refused to complete re-entry formalities. Despite such resistance, arrangements were made for the applicant to attend an interview with the CGP on 3 November 2023. Shortly after the commencement of the present detention, the Immigration Department (through the Department of Justice) also requested the Court for priority to be accorded to the applicant’s then extant leave application. HS4 is satisfied.

7.5Following DHCJ To’s dismissal of the applicant’s leave application, there was and is no longer any legal impediment to removal. The fact that the applicant is in the process of challenging that dismissal is not an impediment to his removal from Hong Kong under the Updated Removal Policy. The practical obstacle to removal was the applicant’s own uncooperative attitude in completing the reentry formalities. As stated earlier, an interview with the CGP was arranged to take place on 3 November 2023, but I was told by Ms Wong that it was called off due to the applicant’s failure to cooperate. I accept Ms Wong’s submission that had the applicant chosen to cooperate, his travel document would have been issued earlier, and so the applicant could have been removed (and hence released from detention) earlier. I think Ms Wong is right in her submission that the applicant has contributed to the length in detention, which factor I take into account and give weight: Sections 32(4A)(d) and (e) of the Ordinance.

7.6The applicant has no verifiable local connection. The offer of a guarantor (who is a friend and does not live at the address provided by the applicant) does not materially change the complexion that the applicant does not have “solid” local connections. I accept Ms Wong’s submission that taking into account (1) the applicant’s strong unwillingness to return to Pakistan and (2) his uncooperative attitude, the risk of absconding is objectively not insubstantial. Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.7I further agree with Ms Wong that the applicant’s previous criminal records reveal a significant risk of (re)offending, if released on recognizance. Indeed, the applicant at the hearing emphasized that he had pleaded not guilty which is reflective of his view that he was wrongly convicted. I am not aware that the applicant has taken steps to appeal his convictions. I think Ms Wong is right in her submission that the applicant has little regard for the law.

7.8For the above reasons, HS2 and HS3 are also satisfied.

8.  Conclusion

8.1For the above reasons, I am satisfied that the applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2As a result, the applicant’s application is dismissed with no order as to costs.

The applicant, acting in person

Ms. Augusta Wong, Government Counsel, of the Department of Justice, for the Interested Party