Ali Nazakat v Director Of Immigration And Others

HCAL 436/2024

[2024] HKCFI 1133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 436 OF 2024

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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 7 March 2024, 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 Immigration Department (the “Department”). The Applicant originally named the Director of Immigration (the “Director”) and Hong Kong SAR Government as the respondents. However, as the Applicant is being detained under the authorisation of the Secretary for Security (the “Secretary”), he should be added as the 3^rd respondent. The Applicant did not object to adding the Secretary as the 3^rd respondent. The application thus proceeded on that basis.

B. Background of Applicant

2. The Applicant is a Pakistani national. Between 2008 and 2013, the Applicant had applied for a dependant visa on multiple occasions. His applications and requests for reconsideration were all refused by the Department as the Department was not satisfied that his claimed relationship with the resident father to be a genuine one. His application for a visitor visa was also refused in July 2013.

3. The Applicant claimed that he had entered Hong Kong illegally in 2016. On 9 December 2016, the Applicant was arrested by the Police for rape, fraud and theft, for which he was convicted in November 2018 (the “Convictions”). He was discharged from prison on 23 August 2023 and was immediately remanded under WKCC 2568/2017 for Illegal Remaining. Therefore, despite the fact that the Applicant had served his prison sentence for the Convictions, he had not been released.

4. On 26 October 2023, the Applicant was brought up to the magistracy for his illegal remaining charge. He was granted bail by the Magistrate and the case was adjourned to 23 November 2023 (thereafter further adjourned to 16 August 2024) for mention. However, on the same day, the Director, under section 32(2A) of the Immigration Ordinance (Cap. 115) (the “Ordinance”) detained the Applicant in Castle Peak Bay Immigration Centre (“CIC”) pending a decision on whether a removal order should be made against the Applicant.

5. On 16 November 2023, a removal order was issued against the Applicant (the “Removal Order”) which remains valid.

6. At the time of the hearing, the Applicant has been detained for 180 days.

C. NRC related proceedings

7. On 10 January 2017, the Applicant lodged a non-refoulement claim (the “NRC”). The NRC was rejected by the Director on 27 July 2017 (the “Director’s Decision”).

8. The Applicant filed an appeal against the Director’s Decision to the Torture Claims Appeal Board (the “TCAB”) on 3 August 2017 (the “Appeal”). The TCAB dismissed the Appeal on 21 September 2023 (the “TCAB Decision”). The Applicant applied for leave to commence judicial review on 13 November 2023 (the “JR Application”).

9. The hearing of the JR Application on 18 January 2024 was adjourned due to the Applicant indicating that he wished to apply for legal aid. The application for legal aid was taken out in February 2024 and refused on 8 April 2024.

10. The JR Application has been re-fixed to be heard on 30 April 2024, being 8 days from the present hearing for habeas corpus.

11. According to the updated removal policy of the Department since 7 December 2022, once an 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.

12. In light of the JR Application, there remains a legal impediment to the Applicant’s removal.

D. Criminal Records

13. On 9 January 2019, the Applicant was convicted and sentenced for the following crimes:

	Offence	Sentence
1.	Rape	8 years and 6 months
2.	Conspiracy to obtain property by deception	2 years (1 year and 6 months of which to run consecutive to rape sentence)
3.	Fraud	2 years (to run concurrently with conspiracy to obtain property by deception sentence)
4.	Theft	1 year and 4 months (to run concurrently with conspiracy to obtain property by deception and fraud sentence)

E. Steps towards Removal

14. At an interview conducted on 27 October 2023, the Applicant had indicated that he is unwilling to return to Pakistan. This was repeated on 6 December 2023, 29 December 2023, 11 January 2024, 18 January 2024, 21 January 2024, 26 February 2024 and 27 February 2024. He also refused to complete the re-entry form, photo taking and attend an interview with the Consulate General of the Islamic Republic of Pakistan (“Pakistan CG”).

15. In view of the Applicant’s failure to co-operate in completing the re-entry formalities in applying for a valid travel document, the Department had on 12 March 2024 written to the Pakistan CG requesting the issuance of a replacement travel document.

16. On 21 March 2024, the Pakistan CG issued an emergency passport to the Applicant, which has expired by the time of the hearing (valid until 19 April 2024).

F. Applicable Principles

17. 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.

18. 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

19. The Applicant has set out the following in his affirmation:

(1) He has a medical condition where blood comes out of his mouth and there was rectal bleeding and he could not receive proper treatment and medication whilst in detention.

(2) He claimed that he could get cancer if he cannot obtain a private operation.

20. The Applicant is now represented by Mr Levaire, who had also made submissions on his behalf. I have borne these points in mind as appropriate in my analysis below.

H. Lawful Authority for Detention?

21. The Applicant has been detained from 26 October 2023 to 1 November 2023 under section 32(2A)(a) of the Ordinance pending a decision on whether a removal order should be made against the Applicant.

22. On 2 November 2023 to 16 November 2023 the Applicant was further detained under section 32(2A)(b) of the Ordinance.

23. On 16 November 2023, the Removal Order was made and the Applicant was detained under section 32(3A) of the Ordinance pending his removal pursuant to the Removal Order until 4 April 2024.

24. From 5 April 2024, the Applicant was detained under section 29(1) of the Ordinance pending enquiry as to whether the Applicant ought to be deported from Hong Kong.

25. From 19 April 2024, the Applicant has been detained under section 29(2) of the Ordinance pending enquiry as to whether the Applicant ought to be deported from Hong Kong.

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

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

I. Whether Detention has become unlawful

28. 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...