Waheed Raza v. Director of Immigration and Another

HCAL 1880/2023

[2023] HKCFI 3136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1880 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 (pursuant to section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”)) made on 26 May 2020. He has been held in immigration detention since 16 September 2023 pursuant to section 32(3A) of the Ordinance. As at the date of the hearing before me, the Applicant has been detained for a period of 80 days.

1.2On 19 October 2023, the Applicant applied for a writ of habeas corpus. Directions were thereafter given for the Respondents to file an initial response. At the hearing, the Applicant appeared in person, with the benefit of an interpreter, and the Respondents were represented by Mr Jinson Cheng, Government Counsel, who also signed the initial response for the 1^st Respondent on whom the detention power was conferred.

2.Background

2.1The Applicant is a Pakistani national. On 11 May 2020, he surrendered to the Immigration Department for illegal remaining. He claimed to be entered Hong Kong illegally on 29 April 2020. He was released on recognizance on 12 June 2020.

2.2The Applicant has no known local tie.

2.3Whilst on recognizance, on 19 November 2022, the Applicant was convicted of a count of taking employment while being a person in respect of whom a removal order was in force and was sentenced to 15 months’ imprisonment. The Applicant does not have any absconding history. At a prison visit on 1 February 2023, he was told that he might be transferred to immigration detention upon the completion of his prison term. The Applicant stated during the prison visit that (1) he believed he had lost his passport and (2) he objected to being removed. Following the prison visit, on 13 February 2023, the Immigration Department requested the Consulate General of the Islamic Republic of Pakistan (“CG”) to issue to the Applicant a travel document for the purpose of removing the Applicant from Hong Kong.

2.4The Applicant’s recognizance was ceased on 16 September 2023 upon his release from prison.

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

3.1On 13 May 2020, the Applicant raised a NRC, which was rejected by the Director of Immigration (“Director”) on 21 December 2020.

3.2He subsequently made an appeal/petition to the Torturer Claims Appeal Board / Non-refoulement Claims Petition Office (“TCAB”). On 19 July 2021, TCAB refused the Applicant’s appeal.

3.3On 13 August 2021, the Applicant applied for leave to apply for judicial review against TCAB’s decision (HCAL 1139/2021). In the light of the current application, the Department of Justice made requests to the High Court to accord priority to HCAL 1139/2021. The application was heard by DHCJ To on 27 November 2023. As at the hearing before me, the judgment is not yet available, but it is expected that the judgment should be forthcoming the following week.

4.Current detention and its reviews

4.1Shortly after the commencement of the Applicant’s present detention, arrangements were made since 16 October 2023 with the CG to follow up the request made in February 2023 for the issuance of a travel document to the Applicant. In order for a travel document to be issued, the Applicant had to comply with reentry formalities.

4.2At interviews conducted on 25 September, 2, 13 and 15 November 2023, the Applicant expressed his unwillingness to return to Pakistan. At one point, on 2 November 2023, the Applicant did express his willingness to comply with the reentry formalities, but he swiftly changed his mind on 13 November 2023. As a result, the interview with the CG originally scheduled on 16 November 2023 was called off. On 17 November 2023, the Immigration Department began to explore with CG if alternative means could be adopted, but was told that the Applicant was required to attend an in-person interview before an emergency travel document could be issued.

4.3The latest review of the Applicant’s detention was conducted on 22 November 2023. The Director decided not to release the Applicant on recognizance for the following broad reasons:

(1)  The High Court had by then indicated that HCAL 1139/2021 would be heard on 27 November 2023, and hence, there was a clear prospect that any legal impediment for the Applicant’s removal would be removed within the near future.

(2)  There was a real risk of re-offending and absconding, if released.

(3)  The Applicant had clearly expressed his unwillingness to return to Pakistan and had not cooperated in the reentry formalities, which self-induced hindrance had the effect of lengthening the repatriation process.

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.

6.The Applicant’s submissions

6.1The Applicant’s submissions, in so far as they may be deciphered from his written materials, may be summarized as follows:

(1)  His immigration detention is not for the purpose of his removal, as, in part, there is no reasonable prospect that his judicial review proceedings could be finalized within a reasonable time. Even were it refused, he has the right to bring the matter further on appeal. In any event, he is of the view that he is now being detained for his past offence, for which he has already served the requisite term of imprisonment.

(2)  He cannot be removed as he does not have any valid travel document.

(3)  He has already been detained since 16 September 2023 and he complains about the environment in which he is detained as being similar to a prison.

(4)  The risk of his absconding is low and he offers to abide by the terms of his recognizance.

(5)  There are no signs showing that there is a risk of re-offending on his part.

6.2At the hearing before me, the Applicant confirmed his reliance on the matters set out in the preceding paragraph. He further stated that he should be released because being detained hampers his preparation for his legal case, and if released, he can stay with a friend in Tokwawan.

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 80 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. Indeed, such intention has been expressly stated even before the commencement of the present detention whilst the Applicant was still serving his prison term. 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 arrangements made for the issuance of a travel document and to expedite the resolution of HCAL 1139/2021. HS4 is satisfied.

7.5Whilst I accept that there is a legal impediment for the Applicant’s removal since HCAL 1139/2021 is yet to be resolved, the requirements under HS2 and HS3 are that (1) the Applicant may only be detained for a period that is reasonable in all the circumstances and (2) 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. In my view, those requirements do not and cannot lead to a conclusion that as long as there is an extant application for leave to apply for judicial review, detention is automatically unreasonable and hence unlawful.

7.6In the present case, shortly after the commencement of the present detention, the High Court was requested to accord priority to HCAL 1139/2021 and was told of a specific date on which HCAL 1139/2021 was to be heard. Parallel with that development, the Applicant was steadfast in refusing to cooperate with the reentry requirements therefore raising concerns of absconding risks (as to which see further below). The Director was entitled to come to a view that deportation could be effected within a period which was reasonable in the circumstances. As Mr Cheng confirmed during the hearing, should the Applicant succeed in HCAL 1139/2021, his detention will be reviewed in the light of that development.

7.7I acknowledge that there is a lack of history of the Applicant absconding. I accept Mr Cheng’s submission that taking into account (1) the Applicant’s strong unwillingness to return to Pakistan, (2) his uncooperative attitude, and (3) the Applicant’s lack of local ties, the risk of absconding cannot be considered low. The Applicant’s offer that he will reside with a friend (who did not attend the hearing) does not ameliorate the foregoing concerns. Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.8I also accept Mr Cheng’s submission that the risk of the Applicant reoffending cannot be dismissed.

7.9In so far as the Applicant seeks to justify the inability to remove him because he does not have a travel document, that inability is only created by his own lack of cooperation with the reentry formalities.

7.10I also do not see how his detention can substantially hamper his inability to prepare for his legal case. Nor do I believe his complaints of the living environment (which appear to be a general assertion rather than specific to his own situation) should assume any of any significant weight in my current deliberation.

7.11For the above reasons, HS2 and HS3 are also satisfied.

8.Conclusion

8.1I 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

Mr Jinson Cheng, Government Counsel, of the Department of Justice, for the Respondents