HKCFI 2209
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1441 OF 2023
||DIRECTOR OF IMMIGRATION
||SECRETARY FOR SECURITY
||Hon Coleman J in Court
|Date of Hearing:
||24 August 2023
|Date of Decision:
||24 August 2023
D E C I S I O N
1. The Applicant is the subject of a Removal Order made on 2 March 2012 and a Deportation Order made on 7 October 2021. He has been held in immigration detention since 28 June 2021 pending his removal from Hong Kong. To the date of hearing, the period of detention has lasted 788 days, or approaching 26 months.
2. On 17 August 2023, he applied for writ of habeas corpus seeking his immediate release from detention. On 18 August 2023, and in view of the lengthy period of detention, I gave leave for the respondents to file an urgent written response to the application, and the necessary directions to bring the matter to today’s hearing.
3. At the hearing, the respondents were represented by Mr Alvin Hor, Government Counsel from the Department of Justice (“DoJ”). The Applicant appeared in person with the benefit of an Urdu/English interpreter.
4. This is my Decision.
B. Immigration Status
5. The Applicant is a Pakistani national born in 1974. He entered Hong Kong illegally on 29 August 2009 and was arrested by the police on the same day. On 31 August 2009, he lodged a claim which I shall loosely refer to as a non-refoulement claim (“NRC”) for the present purpose.
6. Under the then applicable statute and/or removal policy adopted by the Government, the effect of such an NRC was that the Government would be prevented from removing the Applicant from Hong Kong whilst his NRC or any subsequent judicial review proceedings were still pending resolution. This explains why the Applicant’s unlawful stay in Hong Kong – stretching to about 14 years by now – had been tolerated by the Government until fairly recently.
C. NRC related proceedings
7. The Applicant’s NRC was based on threats from his relatives arising out of a land dispute in Pakistan.
8. The Director rejected his NRC in November 2016. The Board refused to allowed him to appeal out of time in May 2017. In the years which followed, the Applicant advanced his claim through the available administrative and judicial avenues, level by level, in an attempt eventually to substantiate his NRC.
9. By the time the present detention began on 28 June 2021, the Applicant’s NRC had reached the stage of having been rejected by the Court of Appeal (“CA”) in his application for an extension of time to appeal against the refusal of the Court of First Instance (“CFI”) to grant him leave to apply for judicial review. The CA’s refusal was dated 6 January 2021.
10. By the time the Applicant was taken into detention on 28 June 2021, it might have been thought his NRC related judicial proceedings had been completed, given that no action had been taken in the 6 months since the CA’s refusal. However, on 8 November 2021, about 4½ months after he was taken into detention, the Applicant sought leave from the CA to appeal to the Court of Final Appeal (“CFA”), out of time. By then, the application was more than 9 months out of time. The CA refused the extension of time on 29 August 2022.
11. Thereafter, no further action was taken for almost 11 months, until the Applicant filed for an application for leave to appeal to the CFA on 25 July 2023. The resolution of that application is pending, but in any event that application is not considered by the Government as a removal obstacle under the new removal policy effective since 7 December 2022. Under the new removal policy, the Government would no longer view a claimant’s NRC related proceedings as an impediment to removal once any subsequent judicial review proceedings have reached the stage of being rejected by the CFI, regardless of the existence of further proceedings.
12. The net effect of the above is that from the Government’s perspective the Applicant’s NRC relating proceedings ceased to be a removal obstacle since 28 August 2022 – or at latest from 7 December 2022.
D. Criminal Record & Absconding Record
13. Being an illegal immigrant and the subject of a Removal Order and subsequently a Deportation Order, the Applicant was and is still liable to be detained pending his removal or deportation from Hong Kong under the Immigration Ordinance, Cap 115 (“Ordinance). But the Director is also empowered to release the Applicant from detention on recognizance.
14. I am informed that the Applicant was released on recognizance on-and-off throughout the years. It appears that he would otherwise be released on recognizance continuously, but for his failures to report recognizance and his being arrested on that basis or for suspected criminal offences.
15. The Applicant failed to report immigration recognizance on 6 occasions and in all of them he only surfaced upon being arrested either for his failure to report recognizance or for suspected criminal offences. The absconding occurred (a) from 2 November 2009 to 24 February 2012; (b) 17 December 2012 to 9 July 2013; (c) 25 July 2013 to 23 October 2013; (d) 11 February 2020 to 15 June 2020; (e) 6 May 2021 to 27 June 2021; and (f) 2 March 2018 to 8 May 2018.
16. It can be noted that the Applicant went ‘underground’ for almost 28 months on the first occasion. On the second to the fourth occasions, he disappeared for periods between 3 and 7 months. (I shall return, below, to what the Applicant says about the absconding record.)
17. I am also informed that the last record of failing to report immigration recognition was also a record of jumping court bail.
18. The Applicant was convicted of criminal offences on 4 occasions, each of the offences having been committed while he was released on recognizance:
(1) On 28 August 2013, he was fined HK$1,000 for theft (shoplifting).
(2) On 5 March 2014, he was sentenced to 4 months’ imprisonment suspended for two years for theft.
(3) On 17 March 2016, he was sentenced to a total of 5 month’s imprisonment for theft (shoplifting) and by the activation of his suspended sentence.
(4) On 11 May 2018, he was sentenced to a total of 12 months and 6 weeks’ imprisonment for two counts of theft (pickpocketing and shop lifting).
E. Steps towards Removal
19. When the present detention began on 28 June 2021, the only practical obstacle to removal was the need to obtain a travel document to replace the Applicant’s passport which had expired in 2014.
20. But, as already noted, on 8 November 2021, the Applicant resurrected his NRC related proceedings by seeking leave from the CA to appeal to the CFA, and doing so 9 months out of time. The effect of that was to resurrect a legal impediment to his removal under the then applicable removal policy for about 10 months, from 8 November 2021 to 29 August 2022 when the application was refused. (The even more belated attempt apparently to resurrect an impediment, last month, does not in fact create such an impediment.)
21. As to the replacement travel document, I am informed that the Director started liaising with the Pakistani Consulate for this purpose as early as in January 2017, years before the present detention commenced. Written correspondence with the Consulate continued in the few years preceding the present detention. The Applicant was also interviewed on multiple occasions on his willingness to return but he consistently expressed unwillingness.
22. Correspondence with the Consulate to this end, and interviews with the Applicant to ascertain his willingness to return, continued after he was taken into detention on 28 June 2021. The Applicant repeatedly and consistently indicated unwillingness to return, and had also refused to submit a re-entry application to facilitate the issuance of a passport to him. The Director’s internal records show the Applicant had refused to submit a re-entry application on 4 April 2022 and 5 July 2022.
23. In view of the Applicant’s refusal to submit the re-entry application, the Director started from July 2022 to explore with the Consulate alternative means to enable the Applicant’s re-entry to Pakistan. Letters were sent for this purpose on 19 July 2022 and 31 August 2022.
24. On 9 December 2022, the Pakistani Consulate issued an Emergency Travel Document (“ETD”) to the Applicant, expiring in 30 days. From that date, the Applicant was clear of all removal impediments or obstacles – legal or practical.
25. But the Applicant continued to express strong unwillingness to return and the Director’s internal records show that, on 18 January 2023, the Applicant claimed that he would not cooperate in the removal procedures.
26. Nevertheless, the Director has since made two attempts to deport the Applicant. The first deportation operation was attempted on 21 February 2023 but the operation was eventually called off as he put up resistance against deportation. The second deportation operation was attempted on 23 May 2023. But this operation was also frustrated as the Applicant became emotional and aggressive and put up a strong physical resistance on the date of departure, forcing the cancellation of the operation.
27. As it now stands, a third deportation operation has been scheduled for the 28 August 2023 (i.e. next Monday) and an air ticket has been secured.
28. Ever since the issuance of the ETD on 9 December 2022, the Director has...