HARJANG SINGH v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 1540/2019

[2019] HKCFI 1486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1540 OF 2019

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D E C I S I O N

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INTRODUCTION

1.  This is the Applicant’s 2^nd application for a writ of habeas corpus in respect of his detention under Section 32(3) of the Immigration Ordinance, Cap 115 (“the Ordinance”), his first application having been dismissed by the court on 2 October 2018.

BASIC FACTS

2.  The background facts of the Applicant’s case were set out in paragraphs 5 to 13 of the court’s previous decision dated 2 October 2018 (“the 2018 Decision”), and will not be repeated here.  I shall set out the further relevant facts which have occurred since that date.

3.  On 4 October 2018, the Applicant, with the assistance of the Duty Lawyer Service, lodged a Petition (“the Petition”) to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) against the decision of the Director of Immigration (“the Director”) made on 26 September 2018 rejecting his non-refoulement claim.

4.  On 1 November 2018, the Applicant’s lawyers requested the Director to grant the Applicant bail upon various conditions.

5.  On 28 November 2018, the Director informed the Board that the Applicant was under detention and requested the Board to accord priority to the Petition.  On 30 November 2018, the Board informed the Director that it was aware of the urgency of the matter and had decided to expedite consideration of the Petition.

6.  On 5 December 2018, the Secretary for Security (“the Secretary”), at the request of the Director, carried out a review of the Applicant’s detention (“the 2^nd Review of Detention”), and came to the view that there were grounds for his continued detention on the bases that (i) the Applicant might constitute a threat/security risk to the community, (ii) the Applicant might abscond and/or re-offend, and (iii) there were no other circumstances in favour of the Applicant’s release.  On 13 December 2018, the Director decided that the Applicant should not be released on recognizance, and informed him of the result of the 2^nd Review of Detention on 20 December 2018.

7.  In the meantime, on 17 December 2019, the Board gave notice to the Applicant and the Director that the Petition would be heard on 11 February 2019.

8.  On 8 February 2019, the Applicant applied to the Permanent Secretary for Security (“the Permanent Secretary”) for suspension or rescission of the Deportation Order issued against him on 22 July 2003.

9.  At the hearing before the Board on 11 February 2019, the Applicant (through his counsel) sought an adjournment on the grounds that (i) he did not have sufficient time to go through the hearing bundle, and (ii) he wished to gather further evidence from his friends in India to support his non-refoulement claim.  The Board allowed the Applicant’s application for adjournment and re-fixed the Petition to be heard on 20 May 2019.

10.  On 14 February 2019, the Permanent Secretary for Security informed the Applicant’s lawyers that consideration of the application for suspension or rescission of the Deportation Order would be deferred pending the determination of the Petition.

11.  On 21 February 2019, the Secretary, at the request of the Director, carried out another review of the Applicant’s detention (“the 3^rd Review of Detention”), and came to the view that there were grounds for his continued detention on the bases, inter alia, that (i) the Applicant might constitute a threat/security risk to the community, and (ii) the Applicant might abscond and/or re-offend.  On 27 February 2019, the Director decided that the Applicant should not be released on recognizance, and informed him of the result of the 3^rd Review of Detention on 4 March 2019.

12.  On 28 February 2109, the Applicant’s lawyers requested the Permanent Secretary for Security to process the application for suspension or rescission of the Deportation Order without waiting for the outcome of the Petition.

13.  On 14 March 2019, the Applicant’s lawyers informed the Director that the hearing of the Petition had been adjourned to 20 May 2019, and repeated the request that the Applicant be released on recognizance.

14.  On 15 March 2019, the Permanent Secretary for Security informed the Applicant’s lawyers that his application for suspension or rescission of the Deportation Order would be processed without taking into consideration the outcome of the Petition, as requested by the Applicant.

15.  On 28 March 2019, the Applicant’s lawyers applied for a dependant visa on behalf of the Applicant, with his wife as the sponsor.  Pausing here, I should mention that the Applicant and his wife, a Hong Kong permanent resident, got married in Hong Kong on 20 April 2016.

16.  Also on 28 March 2019, the Applicant’s lawyers wrote to the Director seeking a review of his detention, stating that there had been changes of circumstances since 27 February 2019, namely:

(1)   the hearing of the Petition had been adjourned to 20 May 2019;

(2)   there might be further adjournment of the hearing of the Petition, and the “completion date” of his non-refoulement claim could not be ascertained;

(3)   the Applicant was entitled to seek leave to apply for judicial review of the Board’s decision (in the event that the Petition should be rejected);

(4)   it was clear that the Applicant could not be deported within a reasonably foreseeable period of time;

(5)   the Permanent Secretary for Security had informed the Applicant that he would consider the application for suspension or rescission of the Deportation Order without waiting for the outcome of the Petition;

(6)   the Applicant had made an application for a dependant visa; and

(7)   the Applicant had applied for legal aid to seek judicial review of the decision not to release him.

17.  There were further correspondence passing between the Applicant’s lawyers and the Director in relation to the Applicant’s request to be released from detention which it is not necessary to summarise here.

18.  On 10 May 2019, shortly before the re-scheduled hearing of the Petition, the Applicant’s counsel wrote to the Board seeking a further adjournment of the hearing of the Petition for 3 months on the ground that the Applicant needed more time to gather evidence in India.  By a letter dated 16 May 2019, the Board informed the Applicant and the Director that the application to adjourn the hearing of the Petition for 3 months by the Applicant was allowed, but the Board also made it clear that the adjournment would be the “final” one that would be granted to the Applicant for him to prepare his case for the hearing, and that a new hearing date would be fixed having regard to the availability of a suitable interpreter and in consultation with counsel’s diaries

19.  On 20 May 2019, the Applicant’s lawyers informed the Director that the Board had adjourned the hearing of the Petition for 3 months.

20.  On or about 29 May 2019, the Applicant made the present application for a writ of habeas corpus.  The application was served on the Department of Justice on 31 May 2019.

DISCUSSION

21.  The applicable legal principles governing an application for a writ of habeas corpus were set out in paragraphs 15 to 16 of the 2018 Decision, and will not be repeated here.  As submitted by Mr Ngan in his Reply Submissions for the Applicant, there are two principal questions to be determined in the current application, namely:

(1)   whether the Applicant can be removed from Hong Kong within a reasonable time; and

(2)   whether the Applicant should be further detained even if removal is possible within a reasonable time.

22.  In respect of the first question, an assessment of whether a non-refoulement claimant can be removed within a reasonable time is a fact-sensitive exercise. The following explanation given by Hickinbottom J in R(Mahfoud) v SSHD [2010] EWHC 2057 (Admin) sets out the court’s general approach to such exercise:

“(i) The power of detention exists for the purpose of deporting the relevant person (‘the deportee’).

(ii) The power exists until deportation is effected: but it can only be exercised to detain the deportee for a period that is reasonable in all the circumstances.

(iii) Whilst in some cases a reasonable time will have expired already and immediate release will be inevitable, in most cases the crucial issue will be whether it is going to be possible in the future to remove the deportee within a reasonable time having regard to the period already spent in detention. In considering such prospects, it is necessary to consider by when the Secretary of State expects to be able to deport the deportee, and the basis and degree of certainty of that expectation. Where there is no prospect of removing the deportee within a reasonable time, then detention becomes arbitrary and consequently unlawful under Article 5, and the deportee must be released immediately.

(iv) There is no red line, in terms of months or years, applicable to all cases, beyond which time for detention becomes unreasonable. What is a ‘reasonable time’ will depend upon the circumstances of a particular case, taking into account all relevant factors.

(v) Those factors include:

(a) The extent to which any delay is being or has been caused by the deportee's own lack of cooperation in, for example, obtaining an emergency travel document (‘ETD’) from his country of origin.

(b) The chances that the deportee may abscond (which may have the effect of defeating the deportation order).

(c) The chances that the deportee, if at large, may reoffend. If he may reoffend, of particular importance is, not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur.

(d) The effect of detention on the deportee, particularly upon any psychiatric or other medical condition he may have. The conditions in which the deportee is detained may also be relevant, although less so if he is required to be detained in particular conditions (e.g. in prison estate as opposed to a detention centre) because of his own behaviour.

(e) The conduct of the Secretary of State, including the diligence and speed at which efforts have been made to enforce the deportation order including obtaining an ETD.

That list of factors is not, of course, exhaustive.

(vi) Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative. There is no ‘trump card’. Therefore, even where there is a high risk or even inevitability of reoffending and/or absconding, nevertheless there may still be circumstances in which Article 5 requires a deportee's release.

(vii) The burden of showing that detention is lawful lies upon the Secretary of State.”

23.  In determining whether a person has been detained for an unreasonable period of time, the court should have regard to the period that the person has already spent in detention.  The longer that a person has been kept in detention the heavier is the burden on the authorities to justify a further period of detention (see Re Romeo Santiago, HCMP 2592/1988 (17 January 1989), at page 6, per Godfrey J).

24.  In the present case, the Applicant has been kept in detention under Section 32(3) of the Ordinance since 17 August 2019, ie for about 9.5 months, but his Petition has still not been determined by the Board. However, the main reason why the Petition has not yet been determined is because of the Applicant’s repeated applications to the Board to adjourn the hearing of the Petition.  In this regard, the court notes that the Applicant came to Hong Kong in March 1991, and first made his torture claim some 13 years later in May 2004, and yet in 2019 he claimed that he was still gathering evidence to support his non-refoulement claim.  This is not the appropriate occasion to consider the validity of the Applicant’s claim for non-refoulement protection, which is a matter for the Board to determine.  What is clear, though, is that but for the Applicant’s applications to adjourn the hearing of the Petition, it would have been heard on 11 February 2019 and it is likely that it would have been determined shortly afterwards in view of the Board’s acknowledgement of the urgency of the matter.  While the court must still have regard to the actual length of time that the Applicant has been detained when determining whether the period of detention has become unreasonable, the court is entitled to take into account whether the Applicant’s conduct has contributed to the length of his detention.

25.  On behalf of the Applicant, Mr Ngan submits that if the outcome of the Petition is not in favour of the Applicant, “he would certainly apply for judicial review of the TCAB determination” and the court is “invited to take into account this factor as a matter of reality”, and thus “it is also uncertain when the Applicant’s non-refoulement claim would be finally determined” (see paragraph 27 of Mr Ngan’s Reply Submission).  The court repeats what it said recently in Ahmad Ali v Director of Legal Aid, HCAL 470/2019 (27 May 2019), at paragraph 15(1):

“It should be borne in mind that the Director of Immigration and the Board are the primary decision-makers in respect of non-refoulement claims. Subject to High Court’s supervisory jurisdiction in judicial review, the decision of the Board is final. It needs to be emphasized that the remedy of judicial review is not to be regarded as giving a non-refoulement claimant a further round of appeal against the decision of the Board. The remedy of judicial review should be regarded as an exceptional remedy of last resort. The High Court would not examine the merits of the non-refoulement claim afresh. It can only intervene in the Director of Immigration/Board’s decision on the grounds of illegality, procedural unfairness or irrationality. In so far as the ground of irrationality is concerned, the threshold for intervention is necessarily a high one. In view of the large number of non-refoulement claims assessed by the Director of Immigration and appeals or petitions heard by the Board against decisions made by the Director of Immigration, the Director of Immigration/Board would have accumulated vast experience and expertise in dealing with such claims, appeals and petitions. It will be rare and only in exceptional circumstances that the High Court would come to the conclusion that a decision of the Director of Immigration/Board is ‘irrational’ in the public law sense.”

26.  In my view, merely because a non-refoulement claimant intends to apply, or has applied, for judicial review of the Director/Board’s decision rejecting his/her non-refoulement claim is not a ground for him/her to be released from detention as a matter of law.  Where a detention is being challenged on the basis that it has exceeded a reasonable period of time, the lawfulness of the detention must, at every point in time, be tested by reference to the Hardial Singh principles.  Further, it would be wrong in principle to speculate on the outcome of the Board’s decision.  In the event that the Board should reject the Petition and the Applicant decides to apply for judicial review of the Board’s decision, the court is entitled to consider the Board’s reasons for rejecting the Petition and whether there is any reasonable ground to challenge the Board’s decision by way of judicial review.  If the court comes to the conclusion that the intended judicial review is plainly unarguable, such conclusion would be relevant in the consideration of whether the period of detention has become unreasonable in all the circumstances.  In R(Lumba) v SSHD [2012] 1 AC 245, at paragraph 121, Lord Dyson JSC stated the following:

“To summarise, I would reject the exclusionary rule. If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed, Mr Husain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or reoffending, which would compel an appellant's release if the appeals process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact-sensitive. This accords with the approach of Davis J in Abdi and I agree with it. The risks of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.”

27.  As mentioned in the judgment of Hickinbottom J in R(Mahfoud), other factors relevant to the court’s consideration for the present purpose include the risks that a detainee, if released, may abscond or reoffend.  As quoted above, Lord Dyson JSC in R(Lumba) said that the risks of absconding and reoffending are always of “paramount importance”.  Whether a detainee, if released, may constitute a threat or security risk to the community must also be important considerations.

28.  Although it is a matter for the court, not the Secretary or Director, to determine whether a detention has exceeded a reasonable period of time, and in that sense the court is the primary decision-maker and its task is not merely to review the reasonableness of the Secretary/Director’s decision in the public law sense, as pointed out by Toulson LJ in R(A) v SSHD [2007] EWCA Civ 804, at paragraph 62:

“Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper.”

29.  The Secretary/Director are much better placed than the court to consider matters such as the risks of absconding or reoffending, and whether a detainee, if released, may pose a threat or security risk to the community, which are fact-sensitive issues and involve a broad range of considerations on which the court has little knowledge or expertise.  Without in any way shirking its responsibility, the court is entitled to place weight on the Secretary/Director’s assessment on these matters.  In the present case, the Secretary/Director have consistently come to the view that the Applicant, if released, may abscond and/or reoffend, and may pose a threat or security risk to the community.

30.  The fact that the Applicant apparently kept good behaviour while he was in prison does not carry much weight, bearing in mind the fact that the Applicant committed further offences, namely, possession of offensive weapon in about 2010 and blackmail in about 2016, while on recognizance, and also the fact, as submitted by Mr Li, that the Applicant’s written submissions to the Director (attached to KCL & Partners’ letter dated 2 May 2019) suggest that he shows little remorse for his offences.  On the other hand, the fact that the Applicant has family connections in Hong Kong is a factor which would militate against the risk of his absconding.

31.  Overall, taking into account all the circumstances of this case, in particular the repeated offences committed by the Applicant, some of which are of a very serious nature, including wounding with intent to do grievous bodily harm contrary to Section 17 of the Offences Against the Person Ordinance, doing an act tending and intended to pervert the course of public justice, and blackmail, the court agrees with the Secretary/Director’s view that if the Applicant is released, there is a real risk of reoffending and he may pose a threat or security risk to the community.  The Secretary/Director are also justified to take the view that the Applicant may abscond if he is released, although that risk is relatively lower.

32.  I shall now deal with a few other matters raised by the Applicant in support of his application for a writ of habeas corpus. In relation to the Applicant’s application for a dependant visa, as stated by this court in Sah Shiv Kumar v The Director of Immigration, HCAL 435/2019 (28 March 2019), at paragraph 15:

“The Deportation Order was in force against the Applicant as at the date of his application for a dependant visa on 6 February 2018. Under Section 20(7) of the Ordinance, a deportation order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or where it is in force. It follows that the Director was plainly correct not to consider the Applicant’s dependant visa application, or grant a dependant visa to him. Indeed, it would be futile to do so, because any such visa would be invalidated as soon as it is granted by virtue of Section 20(7) of the Ordinance.”

33.  In my view, so long as the Deportation Order is in force against the Applicant, there would be no legal basis on which his application for a dependant visa could be acceded to.

34.  In relation to the Applicant’s application for suspension or rescission of the Deportation Order, it has been held by Au J (as he then was) in Sabir Mohammed v Permanent Secretary for Security, HCAL 114/2015 (27 January 2017) that it is not a ground for a deportation order to be suspended or rescinded merely because the person against whom a deportation order has been issued is married to a Hong Kong permanent resident, or has other close relatives, including his/her children, living in Hong Kong (see paragraphs 71 to 75).  In any event, the application to suspend or rescind the Deportation Order is currently under consideration by the Permanent Secretary for Security.  I do not consider this application to have any real relevance to the question of whether the Applicant’s detention has exceeded a reasonable period of time.

35.  Mr Ngan has also raised a few forensic points regarding some apparent inconsistencies in the grounds for the Applicant’s continued detention as stated in the 3 Notices of Review of Detention.  In particular:

(1)   In the 1^st Notice of Review of Detention dated 27 September 2018 (“the 1^st Notice”), Box (a) on page 1 (“Your removal is going to be possible within a reasonable time” under “Release on recognizance is not granted on the following grounds”) was checked, but the same box was not checked in the 2^nd Notice of Review of Detention dated 13 December 2018 or 3^rd Notice of Review of Detention dated 27 February 2019 (“the 2^nd Notice” and “the 3^rd Notice” respectively).  As explained by Mr Li, the reason why Box (a) was not checked in the 2^nd or 3^rd Notices was not because the Secretary/Director took that view that the Applicant could not be removed within a reasonable time, but only because on the dates of the 2^nd and 3^rd Reviews of Detention, the Applicant had already lodged the Petition to the Board, and thus there was no certain or definite date of its determination by the Board.  While I have some difficulty with this explanation, as pointed out by Mr Li, Box (6) on page 2 of the 2^nd and 3^rd Notices (“If there is an outstanding claim/legal proceeding, there is no sufficient reason to believe that your claim/legal proceeding could not be completed within a reasonable time” under “The decision has been reached on the basis of the following factors”) was checked.  In my view, the fact that Box (a) in the 2^nd and 3^rd Notices was not checked merely means that the Secretary/Director did not rely on the fact that the Applicant’s removal was going to be possible within a reasonable time as a ground to refuse his release on recognizance, but cannot be taken to mean that they accepted that the Applicant’s removal was not going to be possible within a reasonable time.  In any event, the determination of whether the Applicant’s removal can be effected within a reasonable time is a matter for the court to decide.

(2)   In the 2^nd and 3^rd Notices, Box (7) on page 2 (“You are likely to pose a threat / security risk to local community e.g. suspected to have connection with terrorist activities”) was checked, but not in the 1^st Notice.  As confirmed by Mr Li, there is no suggestion that the Applicant has any connection with “terrorist activities” (which is stated as an “example” for the existence of a threat / security risk to local community), and that the Secretary/Director only rely on the Applicant’s previous convictions, in particularly, those of a violent or serious nature, to come to the view that the Applicant, if released, is likely to pose a threat or security risk to local community.

36.  Finally, I have considered various letters of “support” written by the Applicant’s friends, but I do not consider that they take the matter any further.

37.  In all, I consider the Secretary/Director have acted with reasonable diligence and expedition to effect the Applicant’s removal. The Applicant has been detained for a period that is reasonable in all the circumstances, and his current detention is in compliance with the Hardial Singh principles.  It is reasonable for the Secretary/Director to take the view that the Applicant can be removed within a reasonable period of time, and that he should detained pending his removal from Hong Kong.

DISPOSITION

38.  The present application for a writ of habeas corpus is dismissed, with costs to the Respondents to be taxed if not agreed.