MANZOOR ALAM v. DIRECTOR OF IMMIGRATION

HCAL 860/2024

[2024] HKCFI 2151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 860 OF 2024

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D E C I S I O N

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1.  Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 5 February 2013 and 7 March 2024. He has been held in immigration detention since 14 September 2023 pursuant to, in respect of divers periods, sections 32(3A), 29(1), 29(2) and 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the hearing before me, he has been detained for 338 days.

1.2  This is my decision on the Applicant’s application made on 30 May 2024 for a writ of habeas corpus. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. Ms Augusta Wong, Government Counsel, appeared for the named Respondent (“Director”). The Secretary for Security (“Secretary”) is also a relevant party as parts of the present detention were authorized pursuant to powers conferred upon the Secretary and for whom Ms Wong also appeared. I proceed accordingly.

2.  Background

2.1  The Applicant is an Indian national born in 1978. On 11 December 2012, he arrived in Hong Kong on the strength of his Indian passport and was permitted to remain in Hong Kong as a visitor until 25 December 2012. He has since 26 December 2012 overstayed.

2.2  The Applicant has no local connections in Hong Kong.

2.3  Whilst on recognizance, the Applicant was convicted of the following offences:

(1)  On 17 February 2014, he was convicted of “Theft”, and was fined HK$200;

(2)  On 19 October 2016, he was convicted of 2 counts of “Theft”, and was fined HK$2,000 in total and was ordered to pay compensation of HK$299;

(3)  On 27 October 2016, he was convicted of “Theft”, and was sentenced to 2 months’ imprisonment;

(4)  On 11 February 2017, he was convicted of 4 counts of “Theft”, and was sentenced to a total of 18 weeks’ imprisonment;

(5)  On 24 July 2017, he was convicted of “Trafficking in a dangerous drug”, and was sentenced to 3 months’ imprisonment;

(6)  On 8 June 2018, he was convicted of “Theft”, and was sentenced to 4 weeks’ imprisonment;

(7)  On 25 August 2018, he was convicted of “Theft” and “Non-payment of fine”, and was sentenced to a total of 2 months and 7 days’ imprisonment;

(8)  On 3 April 2019, he was convicted of “Theft”, and was sentenced to 10 weeks’ imprisonment;

(9)  On 3 April 2023, he was convicted of “Theft”, and was sentenced to 8 months’ imprisonment.

2.4  The present detention commenced following the Applicant’s release from his last imprisonment.

2.5  The Applicant also failed to report immigration recognizance on 6 occasions between December 2015 and October 2021. On all occasions, apart from the first occasion in 2015, he surrendered himself after a not too lengthy period of abscondence.

3.  Non-refoulement claim (“NRC”) and related proceedings

3.1  The Applicant’s two NRCs were unsuccessful before the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB Decisions”).

3.2  On 15 July 2019, the Applicant applied for leave to apply for judicial review against the TCAB Decisions (HCAL 2010/2019), which application was filed out of time.

3.3  On 6 October 2023 (following the commencement of the Applicant’s present detention), the Department of Justice, as instructed by the Immigration Department, requested the High Court to accord priority to HCAL 2010/2019.

3.4  Eventually, HCAL 2010/2019 was dismissed on 30 January 2024 (“CFI Decision”).

3.5  On 25 April 2024, the Applicant requested in writing to reopen his NRC. By a letter of 8 May 2024, the Immigration Department informed the Applicant that no further action would be taken in respect of his NRC, which had been finally determined.

3.6  On 30 April 2024, the Applicant applied to seek an extension of time to appeal against the CFI Decision, which application was dismissed on 23 July 2024.

4.  Seeking reentry to India

4.1  Prior to the commencement to the present detention, there were previously two attempts to repatriate the Applicant in June and July 2019 but they were aborted due to the Applicant’s strong resistance. The Applicant’s passport expired on 28 November 2021.

4.2  At most of the interviews conducted during the present detention (on 18, 27 and 28 September and 13 December 2023 respectively), the Applicant expressed his unwillingness to return to his home country.  In particular, at the interviews conducted on 28 September 2023 and 13 December 2023, he refused to complete application forms for a replacement of travel document, take photos or attend interviews with Consulate General of the Republic of India (“CG”). The Applicant has recently stated in interviews on 9 and 12 August 2024 his continued unwillingness to return to his home country.

4.3  Throughout the present detention (and even prior to its commencement), the Immigration has been in active liaison with the CG for issuing a replacement travel document to the Applicant. On 18 December 2023, 8 March and 23 May 2024 respectively, Immigration Department sought assistance form the CG in exploring possible alternative means to issue the Applicant a travel document due of his uncooperative attitude.

4.4  In the interviews conducted with the Applicant on 10 January and 23 February 2024 respectively, he expressed willingness to return to his home country. In particular, in the interview conducted on 10 January 2024, the Applicant claimed that he would cooperate with the re-entry formalities, including completing the application form, taking photos and attend interview with CG.

4.5  However, while the Applicant had claimed that he was willing to return to his home country and comply with the re-entry formalities, he refused to attend interviews with the Immigration Department on 28 March, 17 and 19 April, 8 and 10 May, and 5 June 2024 respectively.  He also refused to attend interview with CG on 14 June 2024.

4.6  Generally speaking, an emergency travel document could be issued to the Applicant in about 1 month upon all requirements as set out by the CG are met, ie provision of a completed application form for emergency travel document and recent photo, as well as attending an in-person interview at the CG office.

5.  The present detention and its reviews

5.1  The present detention commenced on 14 September 2023 when the Applicant was discharged from prison. Between 14 September 2023 and 21 February 2024, he was detained under Section 32(3A) of the Ordinance, pending his removal from Hong Kong under the Removal Order.

5.2  Between 21 February and 5 March 2024, the Applicant was detained under Section 29(1) of the Ordinance for the purpose of inquiry as to whether he ought to be deported under Section 20 of the Ordinance.

5.3  Between 6 and 7 March 2024, the Applicant was further detained under Section 29(2) of the Ordinance, as authorised by for the same purpose of inquiry as to whether he ought to be deported under Section 20 of the Ordinance.

5.4  On 7 March 2024, the Deportation Order was made against the Applicant, and he has since then been detained under Section 32(3) of the Ordinance pending his removal from Hong Kong under the Deportation Order.

5.5  In the review conducted on 3 July 2024, the Applicant’s continued detention was considered to be justified on the following broad grounds:

(1)  The Applicant's removal is going to be possible within a reasonable time as there is no outstanding NRC-related issues / legal impediment hindering his deportation under the prevailing removal policy;

(2)  The Applicant poses a threat or security risk to the community;

(3)  The Applicant's risks of absconding and/or (re)offending are very significant;

(4)  The Applicant does not have close connection or fixed abode in Hong Kong;

(5)  The Applicant maintained that he was unwilling to return to his home country and refused to cooperate with any re-entry seeking formalities; and

(6)  There are no other circumstances in favour of the Applicant's release.

5.6  The documents handed up by Ms Wong this morning show that the above views were maintained in considerations carried out in late July 2024.

6.  The Applicant’s submissions

6.1  The Applicant’s written materials put forward the following matters:

(1)  He seeks to reargue the merits of his NRCs;

(2)  The length of his detention has become unreasonable;

(3)  His detention is affecting his health (both mental and physical) adversely; and

(4)  He is at risk of being harmed, if repatriated to his home country.

6.2  At the hearing, he stated for the first time that he has been seriously mistreated during the present detention and emphasized that his mental conditions have not been properly attended to.

7.  Applicable principles

7.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

7.2  I remind myself that the burden is on the Respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

7.3  Under Section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place and (4) factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

7.4  The Court of Appeal has recently provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee’s own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention. It is stated at §29(3):

“ In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

8.  Analysis

8.1  During the present detention, the Applicant is and has been detained pursuant to the identified sections of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

8.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 338 days, against which the various other factors must be weighed and balanced.

8.3  I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied. I also accept that the Director/Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. The foregoing is amply demonstrated by the efforts made to expedite the resolution of HCAL 2010/2019 and for the issuance of an emergency travel document.

8.4  There is no longer any legal impediment to the Applicant’s removal pursuant to the Updated Removal Policy.

8.5  The remaining impediment is a practical one, and the present detention is prolonged by the Applicant’s own refusal to cooperate in completing the re-entry formalities. I agree with Ms Wong that significant weight should be given to the delay caused by the Applicant’s own behaviour in the balancing exercise.

8.6  In so far as the Applicant seeks to reargue the underlying merits of his NRC, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim. The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

8.7  As to the health concerns relied on by the Applicant, I accept that the Applicant’s complaints about his health conditions have duly been attended to, subject to those occasions where the Applicant himself refused treatment. The documents provided to me this morning show that, as recent as 13 August 2024, the Senior Medical Officer at Tai Tam Gap Correctional Institution (where the Applicant is detained) had referred the Applicant for outside treatment at the Queen Mary Hospital but the Applicant refused to attend treatment. As pointed out by Ms Wong, there is no reason to believe that the Applicant would not receive proper treatment while detained if required (Mansuri, Intekhab Alam Mohamed Shakil Reza v Hong Kong SAR Government, HCAL 2428/2018, 6 November 2018).

8.8  The serious allegations of mistreatment were not mentioned in his application, on the purported basis that he did not draft his application himself due to his low education level. At the hearing, Ms Wong told me, which I accept, that the Immigration Department has not received any complaints of mistreatment.

8.9  I accept Ms Wong’s submissions that an important consideration in the present case is the risk of the Applicant absconding, which would frustrate the very purpose for which the detention power was conferred and exercised. I take stock of the Applicant's persistent indications throughout the present detention of his unwillingness to be repatriated, underscored by his attempt to argue the merits of his NRCs in the present application. It seems to me that the assessment of the existence of such risks cannot be said to have been unreasonably reached.

8.10  I am also of the view that there is an appreciable risk of the Applicant reoffending should he be released, given his previous conviction records.

8.11  Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

9.  Conclusion

9.1  Therefore, the detention to date has remained lawful, and will remain lawful for this foreseeable future.

9.2  For the above reasons, I dismiss the Applicant’s application for a writ of habeas corpus with no order as to costs.