SHAHZAD KAMAR v. DIRECTOR OF IMMIGRATION

HCAL 80/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 80 OF 2012

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SHAHZAD KAMAR Applicant

and

DIRECTOR OF IMMIGRATION Putative
Respondent

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Before : Hon Au J in Court

Dates of Hearing : 29 June and 11 July 2012

Date of Judgment : 11 July 2012

Date of Reasons for Judgment : 13 July 2012

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REASONS FOR JUDGMENT

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A. INTRODUCTION

1. This is the applicant’s application for a writ of habeas corpus.

2. The applicant is a Pakistani and has been detained by the Immigration Department (“the Department”) at Castle Peak Bay ImmigrationCentre (“the Centre”) since March 2012.

3. He made an ex parte application on 28 June 2012 for a writ of habeas corpus, which was supported by a short affirmation. In the application, he asked the court to grant him “bail”.

4. The court arranged a first hearing of the application on 29 June 2012 and also directed the Director of Immigration (“the Director”),as the putative respondent, to attend.

5. At the end of the first hearing, the court further directed the parties to file evidence in relation to the application and adjournedthe application to 11 July 2012.

6. The Director has since filed two affirmations in opposition to the application. The applicant has not filed any reply evidence. Ms Choi for the Director also filed her skeleton submissions on 10 July 2012 as directed.

7. The court was told at the substantive hearing on 11 July that an interpreter arranged by the Department had orally interpreted theseaffirmations and the skeleton to the applicant. The applicant confirmed that these had been orally interpreted to him, althoughhe said he wanted to have written interpretation. However, it is not his position that he could not understand what has been saidin the affirmations and the skeleton.

8. After hearing submissions by the Director and the applicant, I dismissed the application with reasons to follow.

9. These are my reasons.

B. THE FACTS

10. With the unchallenged evidence from the applicant and the Director before me, the relevant background facts are as follows.

11. The applicant entered into Hong Kong on 8 December 2009 and was arrested for the offence of “illegal remaining” upon his arrival.

12. On 11 December 2009, he was refused permission to land in Hong Kong and had been detained under s 26(a) and s 32(1)(a) of the Immigration Ordinance, Cap 115 (“the IO”).

13. He made a claim (“the torture claim”) under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment on 11 December 2010. He was later released on recognizance on 5 February 2010.

14. The Director refused the torture claim on 26 April 2010. A removal order (“the removal order”) was thus in the meantime issuedagainst the applicant and was served on him on 21 July 2010. There was no appeal against the removal order.

15. The applicant’s petition (issued on 2 July 2010) against the said refusal of the torture claim was also dismissed by an adjudicatoron 25 August 2010 after an oral hearing. There are no more pending legal challenges against the dismissal of the torture claim.

16. Air ticket for the repatriation of the applicant was confirmed and the removal of the applicant was scheduled on 28 September 2010.

17. However, after the service of the removal order, the applicant refused to attend the Centre for interviews. In particular, on 21September 2010, the applicant was informed of his scheduled removal on 28 September 2010 and was asked to report to the Centre on27 September 2010. He did not show up.

18. The applicant then went underground until he was arrested by the Police on 7 March 2011 for the offences of (a) “using an identitycard relating to another person”, and (b) “taking employment while being a person in respect of whom a removal order is in force”. He was convicted of these offences on 23 March 2011 and sentenced to 18 months’ imprisonment.

19. While serving his term of imprisonment, the applicant applied for asylum with the local office of the United Nation High Commissionerfor Refugees (“UNHCR”). The Director was informed of this UNHCR application on 6 July 2011.

20. The applicant was discharged from imprisonment on 7 March 2012. Since then he has been detained by the Director at the Centre underss 29(1) and 32(3) of the IO, pending initially a decision on whether a deportation order will be made against him and, after a deportationorder has been issued, pending deportation.

21. The applicant now asks this court to issue a writ of habeas corpus to release him from detention.

C. THE PRESENT APPLICATION FOR A WRIT OF HABEAS CORPUS

C1. The issue

22. As said by Cheung J in the often cited case of Re Ogunade (HCAL20/2005, 8 February 2005) at para 13, a habeas corpus application is an extraordinary remedy. The fundamental question that should be determined by the court in considering whether toissue a writ of habeas corpus is whether it can be shown that the detention is unlawful. See Fidelis AQhuwaraezeama Emem v Superintendent of Victoria Prison [1998] 2 HKLRD 488 at 453C-D and 455A-B where Stock J (as he then was) said:

“Now the purpose of an application for habeas corpus is to determine whether there is lawful authority for a detention. It is not to determine the reasonableness of any decision or whetherthere has been some failure to observe the rules of natural justice. Those are matters properly within the realm of judicial review.

In conclusion I say this. I am here to examine the legality of the detention and that is all. Once it is shown that the underlyingfacts for the exercise of the powers existed, then that is the end of the matter.”[1]

23. After hearing the applicant at the hearing and reading his supporting affirmation, the grounds relied on by him in support of thisapplication can be summarised as follows:

(1) He has been detained for (according to him) more than a year and the Director has refused to grant him recognizance despite hehas a Hong Kong resident relative who is willing to stand as a surety.

(2) In any event, the UNHCR application is still pending and (according to him) he has a scheduled interview to attend on 6 August2012, but the Director has refused to grant him recognizance to enable him to attend this interview.

(3) It is unbearable for him to have been in detention for such a long time.

C2. Discussion

24. In my view, none of the above grounds has merits. I will explain why.

25. The applicant has been detained since 7 March 2012 under ss 29(1) and 32(3) of the IO.

26. S 29(1) of the IO provides that:

“(1) If it appears to the Secretary for Security-

(a) that there are reasonable grounds for inquiry as to whether a person ought to be deported under section 20; and
(b) that such person should be detained for the purposes of or during such inquiry,

he may issue a warrant in the prescribed form authorizing the detention of such person for a period of 14 days.”

27. S 32(3) provides that:

“(3) A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained underthe authority of the Secretary for Security pending his removal from Hong Kong under section 25.”

28. Moreover, s 20(1) of the IO provides that:

“(1) The Governor may make a deportation order against an immigrant if-

(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; or
(b) the Governor deems it to be conducive to the public good.”

29. A deportation order was issued against the applicant under s 20(1) of the IO on 14 March on the basis that the applicant:

(1) was (and still is) a person who is not a Hong Kong permanent resident; and

(2) has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years.

30. There is no dispute that the offences that the applicant was convicted of are ones that are punishable with no less than two yearsof imprisonment. The deportation thus is one which can be issued under s 20(1) of the IO. In any event, there is also no challengethat the deportation order is not valid or unlawful.

31. In the premises, the applicant’s detention since 7 March 2012 is made under lawful authority: the applicant was first detainedbetween 7 and 14 March 2012 under s 29(1) of the IO pending a deportation order decision, and thereafter under s 32(3) pending hisdeportation.

32. However, the applicant’s first ground as mentioned at paragraph 23 above further raises the subsidiary issue as to whether thedetention has been unreasonably long which renders it unlawful.

33. The legal principles governing whether a detention is unlawful as it has been made for an unreasonably long period are well established,and can be summarised as follows.

34. The statutory power of detention is generally one which is impliedly limited to a period which is reasonably necessary for thatpurpose: R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 at 706D-F[2].

35. The Director has a discretion in respect of the continued detention of a person pending his deportation. Pending deportation meansno more than “until” deportation, and so long as the Director is intent upon removing a person at the earliest possible momentand the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossiblefor him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exerciseof his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at para 12; A (Torture Claimant), supra, at para 31.

36. What is reasonable is dependent on the circumstances of each case and is not to be assessed with hindsight: Mahesh Rai, supra, at paras 16-17.

37. Applying these principles, it is clear to me that the period of the applicant’s detention so far is reasonable viewed in the circumstancesof the present case:

(1) First, it is factually wrong for the applicant to say that he has been detained by the Director for more than a year. The relevantperiod of detention for the present purposes should be counted from 7 March 2012 when he was released from imprisonment and detainedby the Director. This is a period of 4 months. The period when he was in prison is irrelevant for the purpose of determining whetherthe Director’s exercise of discretion to detain him pending deportation is unreasonably long.

(2) Secondly, viewed in the circumstances leading to the detention as summarised above (including the fact that he had gone undergroundafter being served the removal order), the period of detention so far is in my view clearly within a reasonable time:

(a) Between 7 and 14 March 2012, the applicant was detained under s 29(1) of the IO pending a deportation order decision. This periodis no doubt reasonable.

(b) Since then, the only impediment to removal is the applicant’s UNHCR application. The correspondence between the Director andUNHCR on the progress of the applicant’s said application is before the court. Further, the evidence shows that steps have beentaken by the Director to effect the deportation in that repatriation was arranged initially on 30 March and 20 April 2012. On 20May 2012, the applicant even indicated in writing that he wished to go back to Pakistan.

(c) With this unchallenged evidence, I am satisfied that the Director has all long intent upon removing the applicant at the earliestpossible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time and that itwill not be impossible for him to remove the applicant within that reasonable period of time.

38. Further, Ms Choi also submitted at the hearing that the handling officer of the Department was on the day before the hearing informedover the phone by UNHCR staff that the applicant’s UNHCR application had been refused and the case was closed. There are thereforeno more impediments in deporting the applicant. She further said upon instructions that the UNHCR would confirm with the Directorin writing that the applicant’s case is closed.

39. In relation to this, the applicant disagreed at the hearing and said that he had an interview with the UNHCR scheduled to take placeon 6 August 2012 in relation to his UNHCR application. He then produced a small piece of paper which was written with the referencenumber of his UNHCR application and stated to the effect that an interview was to be held on 6 August 2012. It must however be notedthat this paper does not bear the letterhead of UNHCR nor is it signed or chopped with a UNHCR seal.

40. In light of this piece of paper, during a short adjournment of the hearing, the officer of the Department attending the hearingthen made a telephone enquiry with the UNHCR office on this. He then informed the Court through Ms Choi that the UNHCR staff toldhim that there was no information of such scheduled interview.

41. On the face of the verbal information alone, the court could not resolve the questions of whether the UNHCR application has beenclosed and whether there is in fact an interview in relation to this application scheduled to take place on 6 August 2012.

42. However, in light of these disputes, the Director through Ms Choi has made the following undertakings to court:

(1) The applicant would not be removed from Hong Kong before there is a written confirmation from the UNHCR that the applicant’sUNHCR application has been refused and his case is closed.

(2) If there is an interview with the applicant for his UNHCR application scheduled to take place on or before 6 August 2012, and if the applicant is required to attend the UNHCR office for that interview, the Director will make arrangements to enable him to soattend the interview.

43. In light of these undertakings, I can see no merits in the applicant’s above grounds in support of this application. I am satisfiedthat the detention is and has been lawful and is of a reasonable period necessary for pending the removal of the applicant underthe deportation order.

44. Finally, the applicant’s grounds that it is unbearable for him to remain under detention and that he has a relative in Hong Kongto stand as surety do not in any way show that his detention is or has become unlawful.

D. CONCLUSION

45. For these reasons, the applicant’s application for a writ of habeas corpus has no merits and must be dismissed.

46. I also make an order that there should be no order as to costs.

47. Lastly, I thank Ms Choi for her helpful submissions.

(Thomas Au)
Judge of the Court of First Instance
High Court

The applicant, appearing in person

Ms Bethany Choi, Senior Government Counsel of the Department of Justice, for the respondent



[1] See also: Thang Thieu Quyen v The Director of Immigration (1997-1998) 1 HKCFAR 167 at 187D-E per Chief Justice Li.

[2] Applied in Tan Le Lam v Superintendent Tai A Chau Detention Centre [1997] AC 97 (PC) and A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752 (CA) at para 27.