Detained Pakistani awarded HK$10,000

Serial overstayer was 'falsely imprisoned' by Immigration Department for an extra 10 days beyond date of release, top court rules

PUBLISHED : Friday, 14 March, 2014, 4:32am
UPDATED : Friday, 14 March, 2014, 5:16pm

The Immigration Department was yesterday ordered to pay HK$10,000 compensation to a serial overstayer for detaining him 10 days longer than he should have been.

The Court of Final Appeal unanimously ruled 10 days of Pakistani Ghulam Rbani's six-week detention was caused by a delay on the part of the department, constituting false imprisonment.

Mr Justice Roberto Ribeiro said that as personal freedom was a fundamental right, the director of immigration must handle such cases with reasonable diligence and expedition.

According to the judgment, Rbani was a serial overstayer who had been convicted of breaching conditions of stay four times since 1993. He had been sent back to Pakistan three times.

He was jailed for seven months when he was last convicted of overstaying in 2005.

When he was released from prison on August 23, 2005, after being held for about five months, he was immediately detained by the Immigration Department, while the department processed his removal to Pakistan, which he had requested in prison.

But he later changed his mind and for the first time raised his fear of torture in Pakistan. He filed a torture claim and objected to the removal order, which had been issued by the department on September 10, 2005. The removal order was revoked five days later and he was told the first possible date he could be released would be September 21.

However, he was not released on recognizance until October 7, about three weeks after the removal order was revoked.

The top court ruled that the detention until the removal order was revoked was justified - but part of the detention afterwards was the fault of the department.

According to the judgment, the department started assessment on Rbani's torture claim 13 days after it was first received and nine days after the file reached the removal section.

"There is no explanation as to why the assessment could not have taken place much sooner," Ribeiro wrote.

He also pointed out that there was delay in the department's communication with police on its view on Rbani's release; in asking him to nominate a guarantor for his release; and in finding an Urdu interpreter to explain to him the terms of his release.

"It has to be borne in mind that in such cases, while the file is being passed from one officer to another, the appellant is being held in detention, deprived of his personal freedom, recognised both at common law and under our constitutional guarantees as a fundamental right," Ribeiro wrote.

"It is incumbent on the director [of Immigration] to process the case with a sense of urgency and to come promptly to a decision whether detention should continue."