Safder Tehseen v. Permanet Secretary for Security and Another

HCAL 75/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 75 OF 2012

____________

____________

AND

HCAL 89/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 89 OF 2012

____________

Before: Hon Fung J in Court

Date of Hearing: 19 July 2012

Date of Judgment: 19 July 2012

Date of Reasons for Judgment: 25 July 2012

_________________________________

REASONS FOR JUDGMENT

_________________________________

1.The Applicant is detained by the Immigration Department (“ImD”) pending deportation. He applied for leave for judicial review against the deportation order, and habeas corpus for release from detention.

2.I dismissed both applications at the hearing, and now give my reasons.

Background

3.The Applicant is a Pakistani national.  He came to Hong Kong as a visitor on 16 May 1997.  On 4 December 1997, he was permitted to remain for 12 months as a dependant to his father, a Hong Kong permanent resident.  Extensions were granted on 3 occasions for up to 16 June 2005.  He had stayed in Hong Kong for more than 7 years, but he had never submitted an application for verification of eligibility for a permanent identity card.

4.On 1 September 2004, the Applicant was arrested by the Police on suspicion of murder.  After investigation, he was charged only with conspiracy to steal in using the credit card of the deceased. 

5.On 16 March 2005, the Applicant was convicted and sentenced to 7 months’ imprisonment (DCCC 1264/2004). The sentence took into account mitigation in open court that he had given information to the Police on the suspects of the murder.

6.On 2 April 2005, the Applicant was released from prison reckoning the period in custody prior to sentence.  He was then detained by the ImD for enquiry as to deportation under s 29(1) and (2) of the Immigration Ordinance, Cap 115 (“ImO”).

7.On 25 April 2005, a deportation order was made against the Applicant by the 1^st putative Respondent on the basis of his conviction (“1^st Decision”).  He was then detained under s 32(3) of the ImO pending deportation.

8.On 29 March 2005, the Applicant lodged a claim under the Convention Against Torture or Punishment (“CAT”).  The execution of the deportation order was withheld, and he was released on recognizance on 16 June 2006.

9.On 23 June 2005, the Applicant’s application for legal aid to challenge the deportation order was refused.  He lodged a legal aid appeal, which was adjourned pending the result of the CAT claim.  The hearing was never restored.

10.On 11 September 2007, the Applicant was arrested by the police for theft, and was granted bail.  He jumped bail and failed to report to ImD on his recognizance, until he was arrested again for a robbery on 8 December 2007.  The charge was withdrawn, and he was released on recognizance by ImD.

11.On 10 January 2008, the CAT claim was refused.  He lodged a petition against the refusal.  On 29 July 2008, the petition was refused by the Secretary for Security (“S for S”).

12.The screening for CAT claims was enhanced following the decision in FB v Director of Immigration & anr [2009] 2 HKLRD 346.  The Applicant’s CAT claim was reassessed under the new scheme.

13.By a letter dated 29 December 2009, the Applicant requested the S for S for suspension/rescission of the deportation order.  On 13 April 2010, the Applicant was informed that the consideration of his request would be deferred until after the re-assessment of the CAT claim.

14.On 6 September 2011, the Applicant was sought by the Police in relation to a robbery case.  On 4 October 2011, he failed to report to ImD on his recognizance on the excuse of alleged sickness.

15.On 21 November 2011, the Applicant was arrested by the Custom & Excise, and on 22 November 2012, he was convicted of the offence of “Dealing with dutiable commodities” and was fined 5,000.

16.On 13 January 2012, the Applicant married Ms Hung Kar Yan Karin, a Hong Kong permanent resident.  On 6 February 2012, both the Applicant and his wife made representations for the suspension/rescission of the deportation order.

17.On 8 February 2012, the CAT claim was refused. No petition was lodged against such refusal.

18.On 14 February 2012, the Applicant was wanted by the police for a case of wounding, and he failed to report to ImD under his recognizance.

19.On 9 May 2012, the 1^st Respondent refused to suspend or rescind the deportation order (“2^nd Decision’). Since then, the Applicant has been detained by the ImD pending deportation.

20.On 25 May 2012, the Applicant applied for entry for residence as dependant of his wife.  He was informed by ImD that the application could not be considered because he was subject to a deportation order.

1^st Decision

21.The 1^st Decision was contained in the minute M1 dated 22 April 2005 endorsed by the S for S. 

22.M1 stated, inter alia, that the Applicant had made representations that he was arrested in a suspected homicide and he was witness against the other suspects as reported in the local newspaper.  The other suspects were in Pakistan and they knew about it.  He learnt from his brother that they had threatened to kill him if he were to return to Pakistan.  They had threatened his father and another brother in Pakistan.  They did not report it to the police as the culprits were dangerous and the family had no evidence. Regarding the threats by the other suspects, it was believed that the Applicant would be protected by the Pakistan authority.  The Applicant should not have undue hardship in re-establishing himself in his home country where his mother and two siblings resided.  The minute also contained the legal advice that no regard should be made to the facts relating to the suspected homicide, but to the Applicant’s family ties and lengthy residence in Hong Kong.  The deportation order was made.

CAT claim

23.The decision of the Torture Claim Assessment Section of the ImD was contained in a letter dated 8 February 2012.  The Applicant was represented by the Duty Lawyer Scheme.  The letter stated, inter alia, that the Applicant had disclosed the identities of the two culprits, S and Z, in the murder case, and they might have returned to Pakistan.  The Applicant’s eldest brother in Pakistan told him that S and Z went to their family home in Pakistan and said they would kill the Applicant if he were to return to Pakistan.  On 5 July 2005, they went to the family home again and fired revolver shots into the sky in the yard with 2 bullets hitting the wall.  The matter was report to the police in Dhuodhial and the police attended the home one or two day later.  The police took no further action and the Applicant’s mother file a written complaint (as produced).  S repeated the threat to the Applicant’s brother a few times when meeting on the street. S’ uncle C was village head of Dhuodhial and a member of the Pakistan People Party.  The Applicant’s brother made a complaint to C.  C accused the Applicant of disclosing S’s family details to the Hong Kong Police, and said the police was under his influence and he had stopped them from arresting S.  ImD found that there was no severe pain or suffering.  The grudge by S and Z was private in nature, and there was no official involvement as the Dhuodhial police never detained, harmed, threatened or mistreated the Applicant’s family members. There was no torture within the definition of Art 1 of CAT.  Based on the “Pakistan – Country of Origin” report dated 17 January 2011 by the UK Border Agency, nothing had happened to people denied refugee status after their return to Pakistan unless they were involved in crime in Pakistan.  The report stated that the Pakistan Government generally respected the freedom of movement under the law, and there was no substantial ground for believing that C, being only a village head, could be so powerful that the Applicant could not be able to relocate.  The letter also stated that the Applicant failed to attend two interviews in December 2011 and January 2012 arranged through his lawyer without reasonable explanation, and this conduct was inconsistent with a person genuinely subject to a real risk of being tortured or killed upon return to Pakistan, and it undermined the Applicant’s credibility.  Hence, the CAT claim was found not substantiated.

2^nd Decision

24.The 2^nd Decision was contained in the minute M4 dated 9 May 2012 endorsed by the S for S. 

25.M4 stated, inter alia, that the execution of the deportation order was withheld as the Applicant had lodged a CAT claim. Whilst released on recognizance, the Applicant was convicted of the offence of dealing with dutiable commodities and was fined $5,000.  The Applicant claimed the threat of revenge from the culprits if deported to Pakistan.  Bearing in mind the available information, the Director of Immigration was unable to establish substantial risk to the Applicant’s life upon return to Pakistan. Even if such risks exist, there is no indication that he will be deprived of state protection in Pakistan or any compelling reason to stay in a place in close proximity to the alleged source of threat.  In gist, there is no evidence to suggest that there is a real threat to the Applicant’s life or the risk, if exits, is unavoidable.  Regarding the Applicant’s wish to live with her husband and claim of family life, the is a long line of cases in Hong Kong that the provisions of the Hong Kong Bill of Rights (“HKBOR”) and the International Covenant on Civil and Political Rights (“ICCPR”) to enable those not having the right to enter and remain in Hong Kong to resist removal or deportation.  Taking into account the Applicant’s conduct since the conviction (further conviction of a lesser offence, multiple arrests and failing to report on recognizance, the deportation order was confirmed.

Applicant’s grounds for judicial review

26.The Applicant was represented by Mr Boyton in the judicial review, and is acting in person in the application for habeas corpus.

27.The applicant, while acting in person, sought to quash the 1^st and 2^nd Decisions on the following grounds:

(1)  The order for deportation for a single conviction for conspiracy to steal with 7 months imprisonment is too harsh, unfair and unreasonable;

(2)  He feared for his safety in returning to Pakistan as the culprits against whom he had given information had escaped there and his family there had received death threats;

(3)  He is married to a Hong Kong permanent resident and her family and business are in Hong Kong.

Applicant’s grounds for habeas corpus

28.The grounds are similar to those for judicial review, adding that he has applied for leave for judicial review against deportation.

Delay

29.The application for leave against the 2^nd Decision is within time.  Mr Boyton submitted that the application for leave against the 1^st Decision was not made earlier because the execution of the deportation order was postponed until after the CAT decision.  Mr Chan, for the putative Respondents, did not argue strenuously otherwise.  Hence, I proceeded to hear the merits.

Relevant principles

30.Art 39 of the Basic Law provides for the implementation of the ICCPR through the domestic laws of Hong Kong.

31.Art 17 of the ICCPR provides for the protection of family life, and Art 23 the protection of the family and marriage. 

32.Art 14 of the HKBOR provides that no one shall be subjected to arbitrary or unlawful interference with his family; and Art 19 provides that the family is the natural and fundamental group unit of society and is entitled to protection by the State, and that the right of men and women of marriageable age to marry and to found a family shall be recognized.

33.However, the application of the ICCPR to Hong Kong is subject to the immigration reservation.  Accordingly, s 11 of the Hong Kong Bill of Rights Ordinance (Cap 383) provides that:

“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

34.In Comilang Milagros Tecson & anr v Commissioner of Registration & ors HCAL 28/2011 (15 June 2012), Lam J analyzed the long line of authorities on the challenges to the decisions of the Director of Immigration based on family rights or family reunion grounds under the Basic Law, HKBOR, ICCPR, International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, and concluded that the arguments had consistently been rejected in view of the immigration reservation and the special circumstances of Hong Kong.

35.In MA v Director of Immigration HCAL 10/2010 (6 January 2011), A Cheung J (as the Chief Judge then was) stated in para 97 that:

“… As the courts, including this Court, have noted on various occasions, in the light of Hong Kong’s small geographical size, huge population, substantial daily intake of immigrants from the Mainland, and relatively high per capita income and living standards, and given Hong Kong’s local living and job market conditions, almost inevitably Hong Kong has to adopt very restrictive and tough immigration policies and practices.”

36.In Lau Kong Yung & ors v Director of Immigration (1999) 2 HKCFR 300, Li CJ held at p 330G that the Director of Immigration has no duty to consider humanitarian grounds in the exercise of the power on permission or condition of stay (s 11), authority for illegal immigration to remain (s 13), to order removal (s 19), or other statutory power.

37.In Sukhmander Singh v Permanent Secretary for Security & anr CACV 370/2005 (20 July 2006), Stock JA (as he then was) stated that in the making of a deportation order where a real threat or risk of harm was validly raised in the sense of a real foundation in fact as opposed to a bland assertion, it would be a question of weight and balance.  Where the threat came from private persons, and assuming such fact was at all relevant to a deportation decision, there had to be established not only the real risk of harm but also that the receiving country was not in a position to provide a reasonable degree of protection from harm (paras 24 & 25).

38.The consideration of a deportation order must be made in the light of the facts now known (see Liew Kar-seng v HE the Governor in Council [1989] 1 HKLR 607, 610E-F.

39.The purpose of an application of habeas corpus is to determine whether there is lawful authority for a detention.  It is not to determine the reasonableness of any decision or whether there had been some failure to observe the rules of natural justice.  Those matters are properly within the realm of judicial review (see Fidelis Ahuwaraezeama Emem v Superintendent of Victoria Prison [1988] 2 HKLRD 448, 453B per Stock J (as he then was)).

Discussion

40.Mr Boyton conceded on family reunion in view of the line of authorities referred to in the Comilang case.  There is no substance in the harshness point.  His main contention is that the Applicant’s life would be in danger should he return to Pakistan.  

41.Mr Boyton submitted the rejection of state connivance under the CAT claim does not mean there is no risk to life upon the Applicant’s return.  The fact remains that the Applicant has given information against the culprits in the murder who have escaped to Pakistan.

42.Mr Boyton referred to the legal advice in the 1^st Decision.  He submitted that the advice to ignore the facts of the suspected murder meant that the decision maker had overlooked the threats to the Applicant, hence, a failure to take into consideration relevant factors.

43.Mr Chan submitted that was not a proper reading of the legal advice, which should mean not to take into account that the Applicant was once a suspect in the murder.  I agree.

44.The 1^st Decision expressly referred to the risks to the Applicant upon return to Pakistan.  Hence, even if Boyton were right, the decision maker had simply acted against the advice.

45.All the relevant factors were considered in the 2^nd Decision.  The Applicant was convicted of yet another albeit non deportable offence.

46.I have referred to the CAT decision because the consideration in the CAT screening was part of the background facts to the 2^nd Decision.  I fail to see any criticism of the CAT decision even upon an anxious scrutiny.

47.The alleged risk of harm upon return to Pakistan is based on threats to the Applicant’s family members in Pakistan, and will to a large extent depend on the credibility of the Applicant.  Doubts on his credibility by the authority by reason of his twice failure to attend the CAT interview to give details on the threats were properly cast. 

48.Even assuming there were some real foundation of harm, the 1^st and 2^nd Decisions had properly weighed in the balance the availability of state protection in Pakistan and possibility of relocation.

Conclusion

49.In the premises, there is no demonstrably arguable case against the deportation order and leave was refused.  It follows that detention pending deportation is lawful, and the habeas corpus application must also be refused.

Costs

50.Mr Chan asked for costs.  Mr Boyton did not object.  Hence, I ordered costs to all the Respondents, to be taxed if not agreed.

51.Lastly, I thank Mr Boyton and Mr Chan for their submissions.

Mr David Boyton, instructed by Messrs Francis Kong & Co., for the Applicant in HCAL 75/2012

Mr Cheung Siu Nam, SGC and Mr Chan Abraham (Counsel on fiat), instructed by Department of Justice, for the 1^st and 2^nd Respondents in HCAL 75/2012 and the Respondent in HCAL 89/2012

The Applicant acting in person in HCAL 89/2012

Please refer to CACV167/2012 for the relevant appeal(s) to the Court of Appeal.