HCAL 958/2024

[2024] HKCFI 2190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 958 OF 2024

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JUDGMENT

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A. Application

1. By an ex parte application dated 19 June 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 ”).

B. Background of Applicant

2. The Applicant is a Pakistani national born in 1978 who was arrested for remaining in Hong Kong illegally on 26 July 2009. On 27 July 2009, the Police referred the case to the Department for investigation. The Applicant claimed that he had entered Hong Kong illegally from Mainland China on 25 July 2009. On 1 August 2009, the Applicant was released on recognizance.

3. On 5 December 2016, a removal order (the “ Removal Order ”) was made against the Applicant pursuant to section 19(1)(b) of the Immigration Ordnance (the “ Ordinance ”), which remains valid and subsisting.

4. On 8 October 2022, the Applicant was discharged from prison and was referred to the Castle Peak Bay Immigration Centre. Since then, he was detained under section 32(3A) of the Ordinance pending his removal from Hong Kong, apart from 4 August 2023, when the Applicant was sentenced for 3 days upon conviction of “non-payment of fine” and he was released from the Department’s detention for imprisonment. The Applicant was actually imprisoned for only 1 day, and he was referred to the Department for detention again pursuant to section 32(3A) of the Ordinance on 5 August 2023.

5. The Applicant’s Pakistani passport expired on 7 May 2014.

6. At the time of the hearing, the Applicant has been detained for 682 days.

C. NRC related proceedings

7. On 1 August 2009, the Applicant lodged a torture claim, which was later taken to be a non-refoulement claim (“ NRC ”) under the unified screening mechanism. Since the Applicant did not attend the briefings scheduled on 29 September 2014 and 8 December 2014, his NRC was taken as “no further action” on 7 June 2016 as he could not be reached.

8. On 12 November 2016, after he was arrested as a wanted person for failing to report recognizance on 24 October 2016 and was being detained by the Department, the Applicant requested to resume his NRC by way of a written signification. His NRC was subsequently rejected by the Director of Immigration (the “ Director ”) on all applicable grounds on 26 January 2017 (the “ Director’s Decision ”).

9. On 22 September 2017, after he was discharged from the prison and was being detained by the Department, the Applicant file