Waseem Qaisar v. Director of Immigration and Another

HCAL 2144/2023

[2024] HKCFI 272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2144 OF 2023

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BETWEEN

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J U D G M E N T

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A. Application

1.By an ex parte application dated 29 November 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.

B. Background of Applicant

2.The Applicant is a Pakistani national who arrived in Hong Kong on the strength of his Pakistani passport on 21 August 2003. He was permitted to stay for 14 days until 4 September 2003 but overstayed for more than 3 years, until he was arrested by the Police on 24 November 2006 for the offence of theft and common assault.

3.On 14 March 2008, a removal order was issued against the Applicant (the “Removal Order”) which remains valid.

4.Over the 20 years the Applicant has been in Hong Kong, he had been convicted of 24 counts of various criminal offences, all committed whist he was on recognizance.

5.After discharge from the Applicant’s latest prison sentence on 2 August 2021, the Applicant was transferred to Castle Peak Bay Immigration Centre and then to Tai Tam Gap Correctional Institution and has been detained since then under section 32(3A) of the Immigration Ordinance (Cap. 115) pending his removal under the Removal Order.

6.The Applicant’s passport had been lost, which in any event had expired in July 2008.

7.At the time of the hearing, the Applicant has been detained for 899 days, or nearly 2.5 years.

C. NRC related proceedings

8.After the Applicant first lodged his non-refoulement claim (the “NRC”) in 2007, no further action was taken in view of his abscondence. Despite indicating he wanted to lodge another NRC in 2014, it was treated as having been withdrawn as the Applicant had failed to return his completed NRC within the specified time limit.

9.On 30 December 2016, after the Applicant was discharged from prison and whilst in detention, the Applicant requested to re-open his NRC.

10.The Director of Immigration (the “Director”) rejected the Applicant’s request to re-open his NRC on 17 February 2017 by a notice of decision (the “Director’s 1^st Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s 1^st Decision was allowed on 11 June 2018.

11.On 24 September 2018, the Applicant’s NRC was rejected by the Director (the “Director’s 2^nd Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s 2^nd Decision was dismissed on 4 January 2019 (the “TCAB Decision”).

12.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 645/2019 dated 6 December 2022 (the “JR Decision”). The Applicant’s application for extension of time to appeal against the JR Decision was dismissed on 23 March 2023.

13.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.

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

D. Criminal Record & Sentencing Record & Record of Abscondence

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

	Date of Conviction	Offence	Sentence/Period of Imprisonment
1	13 December 2006	Theft	18 months
		Common assault	4 months consecutively
2	23 April 2009	Possession of a dangerous drug (“PDD”)	4 months
3	29 April 2009	Assault occasioning actual bodily harm	4 months (consecutive to Conviction 2)
4	5 July 2010	Theft	4 weeks
5	8 November 2011	PDD	2 months
6	28 November 2013	PDD	$1,000 fine (2 days’ imprisonment for non-payment of fine)
7	15 January 2014	PDD	$2,000 fine (3 days’ imprisonment for non-payment of fine)
8	25 July 2014	PDD	6 months
9	12 September 2014	PDD	8 months (4 months consecutively to Conviction 8)
10	1 June 2015	Theft (Shoplifting)	3 days
11	24 September 2015	Theft (Shoplifting)	13 days’ imprisonment & $50 compensation
12	11 January 2016	PDD	6 months
13	27 June 2016	PDD	6 months
14	8 August 2016	PDD	4 months
15	9 June 2017	Theft (Shoplifting)	2 weeks
16	6 October 2017	Theft (Shoplifting)	20 days
17	13 March 2018	Trafficking in dangerous drugs	3 months
18	25 July 2018	Trafficking in dangerous drugs	2 months
19	29 August 2018	PDD	8 weeks
20	6 April 2020	Theft (Shoplifting)	4 weeks
21	17 July 2020	Theft (Shoplifting)	6 weeks
22	26 September 2020	Theft (Shoplifting)	6 weeks
23	3 December 2020	Theft (Shoplifting)	4 months
24	9 April 2021	Theft (Shoplifting)	6 months

16.The Applicant’s record of abscondence is as follows:

Period of Abscondence	Duration	Claimed Reason for Abscondence
21 October 2009 – 4 January 2010	Around 2.5 months	No money for transportation
13 October 2010 – 12 November 2010	Around 1 month	Loss of recognizance form
9 July 2012 – 14 October 2012	Around 3 months	Sickness
23 April 2013 – 15 October 2013	Around 6 months	No money
17 March 2014 – 5 May 2014	Around 2 months	Sickness
4 May 2015 – 31 May 2015	Around 1 month	Sickness and no money for transportation
4 September 2015 – 22 September 2015	Around 0.5 month	No money for transportation
5 June 2018 – 18 July 2018 (arrested by the Police on 24 May 2018 and then remanded in custody since 18 July 2018)	Around 1 month	Arrested by the Police

Period of Jumped Bail	Duration
13 January 2011 – 22 October 2011	Around 9 months
7 May 2015 – 31 May 2015	Around 0.5 month

E. Steps towards Removal

17.There is no dispute that the only practical obstacle to removal is the need to obtain a travel document to replace the Applicant’s expired passport. The Applicant has all along adopted and continues to adopt an un-cooperative attitude to his repatriation. He has refused to comply with the re-entry formalities and was un-cooperative with his identity verification. He has also refused to attend interviews with the Consulate General of the Islamic Republic of Pakistan (the “Pakistan CG”).

18.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 had since 20 June 2016 repeatedly written to the Pakistan CG requesting confirmation of the Applicant’s identity and re-entry to Pakistan. The efforts of the Immigration Department were repeated in September 2016, January 2019, October 2021, throughout 2022 and 2023 and in January 2024, either by way of chaser letters, emails, visits to the Pakistan CG seeking alternative re-entry process. The details of such efforts are re-produced in the following table:

Date	Events
20 June 2016	A letter was sent to Pakistan CG seeking assistance to confirm the Applicant’s identity and re-entry to Pakistan.
22 September 2016	A letter was sent to Pakistan CG seeking assistance to confirm the Applicant’s identity and re-entry to Pakistan.
29 January 2019	An email was sent to Pakistan CG seeking their assistance to issue an Emergency Travel Document to the Applicant.
27 October 2021	A letter was sent to Pakistan CG seeking their assistance to verify the Applicant’s identity and issue the necessary travel document to him for his home passage / confirm his re-entry to Pakistan in writing at the earliest convenience.
7 April 2022	A letter was sent to Pakistan CG seeking their assistance to verify the Applicant’s identity and issue the necessary travel document to him for his home passage / confirm his re-entry to Pakistan in writing at the earliest convenience.
10 June 2022	A letter was sent to Pakistan CG seeking their assistance to verify the Applicant’s identity and issue the necessary travel document to him for his home passage / confirm his re-entry to Pakistan in writing at the earliest convenience.
13 June 2022	Pakistan CG was contacted to update the progress of the Applicant’s re-entry seeking.
22 July 2022	A letter was sent to Pakistan CG seeking possible alternative means to issue a replacement travel document to the Applicant / confirm his re-entry to Pakistan regardless of his uncooperative attitude.
26 August 2022	An email was sent to the Pakistan CG informing them that the Applicant had been detained since August 2021 and seeking their assistance in issuing a replacement travel document to him regardless of his uncooperative attitude. A visit was paid to Pakistan CG for re-entry seeking of the Applicant.
4 November 2022	A letter was sent to the Pakistan CG seeking their assistance in issuing a replacement travel document to the Applicant regardless of his uncooperative attitude.
11 November 2022	A visit was paid to Pakistan CG for re-entry seeking of the Applicant.
11 January 2023	A letter was sent to the Pakistan CG for the issuance of a replacement travel document to the Applicant / confirmation of his re-entry to Pakistan.
18 January 2023	A visit was paid to Pakistan CG for re-entry seeking of the Applicant.
20 March 2023	A letter was sent to the Pakistan CG for the issuance of a replacement travel document to the Applicant / confirmation of his re-entry to Pakistan.
24 March 2023	A visit was made to the Pakistan CG. They confirmed that the Applicant’s application was under processing.
27 March 2023	An email was sent to the Pakistan CG seeking their assistance for verification and issuance of a replacement travel document to the Applicant / confirmation of his re-entry to Pakistan.
26 April 2023	An email was sent to the Pakistan CG seeking their assistance for verification and issuance of a replacement travel document to the Applicant / confirmation of his re-entry to Pakistan.
11 May 2023	Pakistan CG confirmed that the Applicant’s re-entry application was under processing by the local Pakistani Authority.
23 June 2023	A letter was sent to the Pakistan CG for the issuance of a replacement travel document to the Applicant / confirmation of his re-entry to Pakistan.
27 June 2023	Pakistan CG was visited and they confirmed that the Applicant’s re-entry application was under processing by the local Pakistani Authority.
19 July 2023	Pakistan CG was contacted and they confirmed that the Applicant’s re-entry application was under processing.
13 November 2023	During the interview with the Applicant on 13 November 2023, he refused to attend the interview with Pakistan CG scheduled on 16 November 2023. The scheduled interview was therefore called off.
17 November 2023	A meeting was held between the Immigration Department and Pakistan CG for re-entry seeking of the Applicant.
22 November 2023	An email was sent to Pakistan CG seeking alternative means to confirm re-entry of the Applicant regardless of his uncooperativeness.
7 December 2023	An email was sent to Pakistan CG seeking their assistance to confirm re-entry of the Applicant.
19 December 2023	An interview with the Applicant was arranged on 22 December 2023 regarding the re-entry seeking.
22 December 2023	The Applicant was scheduled to attend Pakistan CG for interview on 27 December 2023. However, he refused to attend Pakistan CG and expressed unwillingness to return to his home country.
28 December 2023	Staff of Pakistan CG was reached for seeking alternative means for the Applicant’s re-entry seeking. He acknowledged the urgency of the case and the Applicant’s uncooperative attitude. Since the Applicant was holding a hand-written Pakistani passport, he requested the fingerprint images to expedite the Applicant’s identity verification. Generally speaking, verification for hand-written identity document cases would be referred to local Pakistan Ministry of Internal Affair for verification which would take about 2 months, subject to the cooperativeness of the Pakistani national concerned. The emergency travel document could be issued within 2 weeks upon receiving the verification from the Pakistan Ministry of Internal Affair. Arrangement was made to secure the fingerprint images of the Applicant.
3 January 2024	The Applicant was interviewed. He reiterated that he refused to return to his home country and refused to fill in the application form for his travel document. He was only willing to provide his fingerprint images. Fingerprint images were secured from the Applicant.
4 January 2024	An email was sent to Pakistan CG attaching the Applicant’s fingerprint images and asking for the time required for the verification of the Applicant’s identity. A visit was paid to Pakistan CG and the Applicant’s fingerprint images and photos were submitted to the staff of Pakistan CG who acknowledged the urgency of the case and agreed to expedite the process. Staff of Pakistan CG would deliver the fingerprint images to the local Pakistan Authority for verification and the estimated processing time was around 2 to 3 months.
8 January 2024	It was confirmed with Pakistan CG that the fingerprint images had been delivered to the local Pakistan Authority for verification.

19.It can be seen that the Immigration Department can in no way be accused of not having taken a proactive stance in effecting the Applicant’s removal.

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 21 November 2023. In summary, they are as follows:

(1) The length of the detention since 2 August 2021 has become an indefinite detention. The Applicant said that that an initially lawful detention can become unlawful if it falls foul of the Hardial Singh principles.

(2) The Applicant submitted that he cannot be removed within a reasonable time.

(3) The Applicant wished to remain in Hong Kong until his NRC is complete.

23.I have borne these points in mind as appropriate in my analysis below.

H. Lawful Authority for Detention?

24.The Removal Order was issued on 14 March 2008 and remains valid. The Applicant has been detained from 2 August 2021 to 17 January 2024 (899 days) under section 32(3A) pending removal under a removal order.

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

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

I. Whether Detention has become unlawful

27.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”).

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

HS1

29.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

30.The starting point is the length of the detention – about 2.5 years (899 days) – against which all the other factors must be weighed and balanced.

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

(1) Pursuant to the updated removal policy, after the Applicant’s JR application was dismissed on 6 December 2022, there is no longer any legal impediment to the Applicant’s removal due to his NRC.

(2) The Applicant had since the commencement of his detention been un-cooperative throughout in every step of the removal process, including non-compliance with re-entry formalities, refusal to attend interviews with the Pakistan CG and refusal to provide his fingerprints. The Pakistan CG has indicated that after the Applicant’s fingerprint images are secured, it would take 2 – 3 months for the verification of his identity and afterwards an emergency travel document can be issued within 2 weeks.

(3) There is nothing to indicate that but for the Applicant’s repeated refusal to co-operate in obtaining a valid travel document, there was any further obstacle to his repatriation, hence release from detention.

(4) Thus, although the total period of detention is long, the majority of the period of detention was attributed by the Applicant’s self-induced impossibility in obtaining a valid travel document. In Johnson Benjamin v Director of Immigration & Secretary for Security[1], the Court of Appeal held that in general, any period of detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted and regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are circumstances to show otherwise.

(5) Thus, other than the 3 months that it normally takes for the verification of identity and replacement of travel document, the remaining period of detention was caused by the Applicant’s unreasonable behaviours and should not be counted as unreasonable for determining of the detention has become unlawful.

(6) The Applicant’s past criminal records suggest that there is a high risk of re-offending.

(7) The Applicant has no local connection. Given the Applicant’s clear attitude that he is unwilling to be repatriated and his record of abscondence, the risk of absconding is real.

(8) Overall, taking into account all the relevant factors, I am satisfied that HS2 and HS3 are met.

HS4

32.In view of the steps that had been taken by the Director as set out in paragraph 18 above, I am of the view that the Director had diligently pursued the Applicant’s removal and I am satisfied that HS4 is satisfied.

33.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.

J. Result

34.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

Ms Augusta Wong, Government Counsel, of the Department of Justice, for the respondents