DIAWARA ANSOUMANE alias ONUOHA DICKSON EMEH v. DIRECTOR OF IMMIGRATION

HCAL 1090/2020

[2020] HKCFI 1152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1090 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application by the Applicant seeking an order that a writ of habeas corpus ad subjiciendum be issued in respect of his current detention under Section 32(3A) of the Immigration Ordinance, Cap 115 (“the Ordinance”).  Unless otherwise indicated, references hereinafter to “Section” or “s” shall be to the Ordinance.

BACKGROUND FACTS

2.  The Applicant claims to be a dual national of Guinea and Nigeria, and has been confirmed to be a Nigerian national.  On 17 January 2010, he arrived in Hong Kong in his assumed identity as “Diawara Ansoumane”, born on 13 December 1975, of Guinean nationality, and presented for arrival clearance on the strength of his Guinean passport.  He was permitted to remain as a visitor until 31 January 2010.  He was, however, intercepted at Customs Clearance, and suspected of internal concealment.  He was then sent to Queen Elizabeth Hospital.  X-ray examination confirmed the presence of foreign objects in his abdomen.  He subsequently discharged a total of 68 pellets of suspected dangerous drugs, which were later found to consist of 987.95 g of a mixture containing 649.69 g of heroin hydrochloride.

3.  On 30 August 2010, the Applicant was convicted of the offence of trafficking in dangerous drugs on his own guilty plea, and sentenced to 14 years’ imprisonment.

4.  On 31 March 2011, while serving his sentence, the Applicant claimed that he had another identity as “Onuoha Dickson Emeh”, born on 9 September 1974, of Nigerian nationality.  On 11 January 2016, the Consulate General of the Federal Republic of Nigeria issued a letter to the Immigration Department confirming that the Applicant was a Nigerian national and that it would, upon the Applicant’s completion of his prison term, issue appropriate travel documents to enable him to return to Nigeria.  Pausing here, the court has been informed by Ms Lai that in the event of the Applicant being removed from Hong Kong, he will be sent to Nigeria.

5.  On 13 April 2018, while serving his sentence in prison, the Applicant raised a non-refoulement claim.

6.  On 20 September 2018, the Applicant’s non-refoulement claim was rejected by the Director.

7.  On 2 October 2018, the Applicant’s appeal/petition against the decision of the Director was received by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”).

8.  On 22 June 2019, the Applicant completed his sentence and was discharged from prison.  He was transferred to the Immigration Department for detention at Castle Peak Bay Immigration Centre (“CIC”) under s 32(2A) pending a decision as to whether or not a removal order should be made against him.

9.  On 24 June 2019, the detention authority under s 37ZK was invoked against the Applicant pending the final determination of his non-refoulement claim.

10.  On 29 July 2019, the Adjudicator heard the Applicant’s appeal/petition.  The Adjudicator considered the oral evidence of the Applicant at the hearing, as well as the materials before him.  In his decision dated 16 August 2019, the Adjudicator found that crucial aspects of the Applicant’s claims and evidence were not credible and/or were “vague and lacking detail”, and the Applicant’s evidence that his mother had received threats from gangsters in Nigeria was a “late addition and fabrication”.  The weight of all the evidence ultimately led the Adjudicator to the conclusion that if the Applicant were to return to Nigeria or Guinea he would not face a real risk of serious harm of a kind which enlivened Hong Kong’s non-refoulement obligations (see §54 of the TCAB’s decision).  Accordingly, the Adjudicator rejected the Applicant’s non-refoulement claim based on persecution risk, BOR 2 risk, BOR 3 risk and torture risk.  The detention of the Applicant under s 37ZK then ceased, and he was henceforth detained under s 32(2A) from 16 August 2019 to 25 September 2019 pending a decision as to whether or not a removal order should be made against him.

11.  On 25 September 2019, the Applicant filed a Form 86 seeking leave to apply for judicial review of the TCAB’s decision (HCAL 2815/2019).  The Form 86 did not state any ground on which relief was sought.  In his affirmation filed in support of the application, the Applicant merely stated the following:

“I don’t agree with the decision of Torture Claim Board of Appeal, I want to [file] J.R. Judicial Review against them, I don’t want to go home reason why because my life is in danger if I should go home.”

The leave application is currently pending determination by the High Court.

12.  Also on 25 September 2019, a removal order (“the Removal Order”) under s 19(1)(b) was made against the Applicant, and he was detained pursuant to s 32(3A) pending his removal under s 25.

13.  On 3 October 2019, the Applicant gave notice that he had decided not to appeal against the Removal Order.

14.  There have been 4 reviews of the Applicant’s detention under s 32(3A):

	Minute	Date of Review Endorsed	Date of Service of Notice of Review of Detention
1st	M12	12.11.2019	18.11.2019
2nd	M13	3.1.2020	10.1.2020
3rd	M14	8.5.2020	15.5.2020
4th	M15	4.6.2020	5.6.2020

15.  It was decided on each occasion of review that the Applicant’s detention should continue on the grounds that (i) his removal was going to be possible within a reasonable time, (ii) he might constitute a threat/security risk to the community, (iii) he did not have close connection or fixed abode in Hong Kong, (iv) he may abscond and/or (re)offend, and/or (v) there were no other circumstances in favour of his release.

16.  On 1 June 2020, the Applicant made the present application for a writ of habeas corpus.  It was supported by his affirmation which had attached to it a document entitled “Grounds Supporting My Application”.

17.  At the hearing on 8 June 2020, the Applicant said that he had served his prison sentence, he had been in detention since June 2019, there were other detainees in a similar situation who had been released on recognizance and he did not understand why he was treated differently, and his life would be in danger should he be removed to his home country.  He confirmed that he had no relatives in Hong Kong, but said that he had friends who could help him find rented accommodation in Sham Shui Po, and he would be supported by his mother who would send him money.

DISCUSSION

(a)     The Applicant’s detention is prima facie lawful

18.  The legal principles governing an application for a writ of habeas corpus are well settled.  The central question is whether there is lawful authority for a detention: see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was:

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

19.  The Applicant is currently detained under s 32(3A) of the Ordinance, which states as follows -

“A person in respect of whom aremoval order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.”

20.  In view of the fact that -

(1)  a removal order under s 19(1)(b) in respect of the Applicant is in force; and

(2)  the Applicant is being detained pending his removal from Hong Kong under s 25,

the Applicant’s detention is, prima facie, lawful.

(b)     The Applicant’s detention is Hardial Singh compliant

21.  The relevant principles were set out in this court’s recent decision in Simona Mundia v Director of Immigration [2020] HKCFI 741, and will not be repeated here.

22.  In summary, the determination of whether a person has been detained for a period that is reasonable in all the circumstances is a fact-sensitive exercise.  The court has to consider, amongst other matters, the length of the period of detention; whether, and if so when, there is a realistic prospect that deportation will take place; the nature of the obstacles which stand in the path of a deportation; the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.

23.  When determining whether a period of detention has become unreasonable, the merits of the judicial process pursued by the detainee which impedes his removal is a relevant consideration.  Also, the risks of absconding and reoffending are of paramount importance in the court’s assessment of whether a period of detention has become unreasonable in all the circumstances.

24.  In the present case, there is nothing in the materials before the court to show that the Director is using the power of detention for any purposes other than for the removal of the Applicant.  There is also nothing to suggest that the Director has failed to act with reasonable diligence or expedition to effect the Applicant’s removal.  The only obstacle to the Applicant’s removal is his pending application for leave to apply for judicial review of the TCAB’s decision.  The Director is intent upon removing the Applicant at the earliest moment, and is of the view that the Applicant can be removed within a reasonable period of time and that it will not be impossible to do so.

25.  The court accepts that the Applicant has been detained for a substantial period of time.  The current detention under s 32(3A) pending his removal commenced on 25 September 2019.  The period of detention would be longer if one takes into account his previous detention during the following periods:

(1)  from 22 June 2019 to 24 June 2019 under s 32(2A) pending a decision as to whether or not a removal order should be made;

(2)  from 24 June 2019 to 16 August 2019 under s 37ZK pending the determination of his non-refoulement claim; and

(3)  from 16 August 2019 to 25 September 2019 under s 32(2A) pending a decision as to whether or not a removal order should be made.

26.  The present application is not the appropriate occasion to examine in detail the merits of the Applicant’s application for leave to apply for judicial review of the TCAB’s decision.  However, to the extent that the merits of the application are relevant to a consideration of whether the period of the Applicant’s detention has become unreasonable, on the court’s provisional assessment, the application appears to be a weak one, and does not have a good prospect of success.  The Applicant’s mere assertion in his affidavit that he did not agree with the TCAB’s decision is plainly not a sufficient ground of judicial review.

27.  There is in the court file in HCAL 2815/2019 a letter written by the Applicant dated 13 May 2020 which had attached to it a document entitled “Perfect[ed] Grounds to Support My Application”.  In that document, the Applicant sought to challenge the Director/TCAB’s respective assessments of his non-refoulement claim, and asked the court to re-assess the same.  It is, however, trite that it is not the court’s function in an application for judicial review of the TCAB’s decision to consider the non-refoulement claim afresh.  As stated by the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246, at §13:

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in the absence of any legal error.”

28.  In his “Perfect[ed] Grounds to Support My Application”, the Applicant argued that he could be prosecuted again in Nigeria for the same offence for which he was convicted in Hong Kong.  It would appear from the TCAB’s decision that this point was not raised before the Adjudicator. In any event, it is well established that the “double jeopardy” argument is not a ground against the deportation of the Applicant (see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, at §§162-165).

29.  It is clear that the Applicant would have been removed much earlier but for his appeal/petition to the TCAB against the Director’s decision rejecting his non-refoulement claim and his application for leave to apply for judicial review of the TCAB’s decision in HCAL 2815/2019. Whilst the Applicant is entitled to exhaust all administrative, statutory and/or judicial remedies against the Director’s rejection of his non-refoulement claim, I consider that he must bear some responsibility for his detention since 22 June 2019.

30.  In the present case, the Director is of the view that the Applicant might constitute a threat/security risk to the community due to the serious nature of his conviction for the offence of trafficking in dangerous drugs.  As this court stated in Harjang Singh v Secretary for Security [2019] HKCFI 1486, at §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 Director has consistently come to the view that the Applicant does constitute a threat/security risk to the community due to his criminal conviction for the offence of trafficking in dangerous drugs, and the Director considers that the Applicant’s release would not be conducive to the public good.

31.  As can be seen from the Applicant’s “Supplementary Information Relating to Proof of Identify and Guarantor” dated 22 June 2019, he was unable to provide any guarantor in support of his application for release on recognizance, and only stated that the could seek support from “ISS”, which this court understands does not stand as guarantor for non-refoulement claimants seeking release on recognizance.

32.  The fact that the Applicant has no family member living in Hong Kong, and has no obvious connection with Hong Kong, supports the continued detention of the Applicant.

33.  There is no reason to believe that the resolution of the Applicant’s application for leave to apply for judicial review of the TCAB’s decision will be unduly delayed, although, having regard to the large number of similar applications made by non-refoulement claimants pending before the High Court, it will inevitably take some time for them to be dealt with.

34.  The court has considered the Applicant’s written “Grounds Supporting My Application” attached to his affirmation filed herein on 3 June 2020, but does not find that it adds anything of substance to his application.

35.  Overall, the court is of the view that the Applicant has not been detained for a period that is unreasonable in all the circumstances, and his current detention is in compliance with the Hardial Singh principles.

DISPOSITION

36.  The application for the issue of a writ of habeas corpus is dismissed.  There shall be no order as to costs.