SIMONA MUNDIA v. DIRECTOR OF IMMIGRATION

HCAL 782/2020

[2020] HKCFI 741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 782 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 is a Zambian national.  On 11 July 2010, he arrived at Hong Kong International Airport and presented for arrival clearance on the strength of his Zambian passport.  He was permitted to remain as a visitor until 9 October 2010.  He was then intercepted at Customs Clearance, and suspected of internal concealment.  He was sent to Queen Elizabeth Hospital.  X-ray examination confirmed the presence of foreign objects in his abdomen.  He subsequently discharged a total of 60 packets of suspected dangerous drugs, which were later found to consist of 0.87 kg of a mixture containing 0.52 kg of heroin hydrochloride.

3.  On 4 April 2011, the Applicant was convicted of the offence of trafficking in dangerous drugs on his own guilty plea, and sentenced to 12 years and 4 months’ imprisonment.

4.  On 27 December 2017, while serving his sentence, the Applicant made a non-refoulement claim.  On 26 April 2018, his non-refoulement claim was rejected by the Director.  On 9 May 2018, he appealed/petitioned against the decision of the Director to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”).

5.  On 29 September 2018, 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.

6.  On 2 October 2018, the detention authority of s 32ZK was invoked against the Applicant pending the final determination of his torture claim.

7.  On 26 November 2018, the TCAB heard the Applicant’s appeal/petition.  Prior to that hearing, the Applicant wrote to the TCAB advising that he did not wish to attend any hearing, and requested that the matter be decided as “a paper appeal without a hearing” on the basis of the information contained in his Non-Refoulement Claim Form and record of interview (see §15 of the TCAB’s decision).  At the hearing before the TCAB, the Applicant told the Adjudicator that his claims had been set out in the documents before the TCAB and he did not wish to say anything further about his case.  He said that he had nothing to add to the documents, and did not wish to answer any questions.  When the Adjudicator put to the Applicant that he had concerns about the credibility of his claims and would like to put those concerns to him, the Applicant repeated that he did not want to answer any questions, and would accept whatever decision the TCAB made on the basis of the written materials (see §19 of the TCAB’s decision).  Pausing here, I should mention that the Applicant disputes this was what happened at the hearing before the TCAB.

8.  The Adjudicator considered the materials before him, and found that the Applicant had failed to show any persecution risk, BOR 2 risk, BOR 3 risk or torture risk should he be returned to Zambia, and affirmed the decision of the Director.  The Applicant was informed of the TCAB’s decision on 6 December 2018.  The detention of the Applicant under s 32ZK then ceased, and he was henceforth detained under s 32(2A) pending a decision as to whether or not a removal order should be made against him.

9.  On 28 December 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the TCAB’s decision (HCAL 3001/2018).  The Form 86 did not, however, state the relief sought or any ground on which relief was sought, as required by Order 53, r 3(2)(a)(iii) of the Rules of the High Court, Cap 4A.  I have been told by Mr Li that the application was, apparently, not supported by any affidavit of the Applicant (in any event, the Director has not received any such affidavit).  The leave application is currently pending determination by the High Court.

10.  On 15 January 2019, a removal order was made against the Applicant under s 19(1)(b).  By a Notice of Intention Not to Appeal/Declaration of Abandonment of Appeal dated 16 January 2019, the Applicant gave notice that he did not intend to appeal against the removal order.  Since that date, the Applicant has been detained under s 32(3A) pending his removal from Hong Kong under s 25.

11.  Up to the present moment, there have been 6 reviews of detention in respect of the Applicant’s detention under s 32(3A):

	Minute	Date of Review Endorsed	Date of Service of Notice of Review of Detention
1st	M15	6.5.2019	12.5.2019
2nd	M18	27.6.2019	12.7.2019
3rd	M22	30.8.2019	3.9.2019
4th	M23	14.11.2019	18.11.2019
5th	M24	16.1.2020	23.1.2020
6th	M25	24.4.2020	29.4.2020

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

13.  On 27 April 2020, the Applicant made the present application for a writ of habeas corpus.  It is supported by an affirmation which had attached to it some handwritten documents setting out some arguments in support of the application and a few other documents.  The Applicant also made oral submissions in support of his application at the hearing on 6 May 2020.

DISCUSSION

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

14.  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.”

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

“A person in respect of whom a removal 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..”

16.  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

17.  An initially lawful detention may be turned into an unlawful detention if it fails to meet the Hardial Singh principles as summarised by Dyson LJ (as he then was) in R(I) v Secretary of State for the Home Department [2003] INLR 196 (at §46) and adopted by Ribeiro PJ in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 (at §23):

“(i)    The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii)   The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv)  The Secretary of State should act with reasonable diligence and expedition to effect removal.”

18.  In relation to the question of whether a person has been detained for a period that is reasonable in all the circumstances, the following statement of principle by Au J in Bhullar Angad Singh v HKSAR, HCAL 134/2014 (21 October 2014), at §17, is applicable:-

“The Director has a discretion in respect of the continued detention of a person pending his deportation. Pending deportation means no more than ‘until’ deportation, and so long as the Director is intent upon removing a person at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31.”

19.  Guidance on what a reasonable period of time means for the present purpose can be found in the judgment of Lord Dyson JSC in R(WL (Congo)) v Home Secretary [2012] 1 AC 245:

“[103] A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in I’s case, there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.

[104] How long is a reasonable period? At para 48 of my judgment in I’s case, I said:

‘It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State 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.’”

20.  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.”

21.  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.

22.  The pertinent questions which require consideration are, in my view: (i) whether the Applicant has already been detained for an unreasonable period of time, and (ii) whether there is a realistic prospect that the Applicant can be removed within a reasonable time.

23.  There is no doubt that the Applicant has been detained for a substantial period of time.            The current detention under s 32(3A) pending his removal commenced on 15 January 2019 (more than 15 months ago).  The period of detention would be longer if one takes into account his previous detention during the following periods:

(1)  from 29 September 2018 to 2 October 2018 under s 32(2A) pending a decision as to whether or not a removal order should be made;

(2)  from 2 October 2018 to 6 December 2018 under s 37ZK pending the determination of his torture claim; and

(3)  from 6 December 2018 to 15 January 2019 under s 32(2A) pending a decision as to whether or not a removal order should be made.

24.  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.  In R(WL (Congo)), supra, at §§111 and 121, the following was stated by Lord Dyson JSC:

“[111] Mr Beloff submits that the time taken to resolve legal challenges brought by an individual against deportation should generally be left out of account in considering whether a reasonable period of detention has elapsed. He concedes that this general rule should be subject to two qualifications: (i) if the Secretary of State has caused delay in the resolution of the legal challenge, then that time may be taken into account; and (ii) the time during which a legal challenge is being resolved should be taken into account if removal is not possible for reasons unrelated to the legal challenge. I shall call this general rule ‘the exclusionary rule’.

…

[121]    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.”

25.  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 the consideration of whether the period of the Applicant’s detention has become unreasonable, on my provisional assessment, the application appears to be a weak one, and does not have a good prospect of success.

26.  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 claims and his application for leave to apply for judicial review of the TCAB’s decision in HCAL 3001/2018.  Whilst the Applicant is entitled to exhaust all administrative, statutory and/or judicial remedies against the Director’s rejection of his non-refoulement claims, I consider that he must bear some responsibility for his detention since 29 September 2018.

27.  It is also clear from the above statement of Lord Dyson that 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.  See also the judgment of Toulson LJ in R(A) v The Secretary of State for the Home Department [2007] EWCA Civ 804, at §§45, 54 and 55:

“[45] … Be that as it may, a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty.

[54] I accept the submission on behalf of the Home Secretary that where there is a risk of absconding…, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person’s detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made...

[55] A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”

28.  In the present case, the Director is of the view that there are risks of absconding (in view of the fact that the Applicant has no family or local connection or fixed abode in Hong Kong) and reoffending (bearing in mind the serious nature of the offence for which the Applicant was convicted and sentenced to 12 years and 4 months’ imprisonment).  At the hearing on 6 May 2020, the Applicant said that he had friends in Hong Kong who could act as his guarantor should be granted release on recognizance.  However, he was unable to provide further details of his friends, or explain why they would provide him with accommodation or support him.  Furthermore, the Applicant previously stated, in a document titled “Supplementary Information - Relating to Proof of Identity and Guarantor” dated 22 January 2019 signed by him for consideration of his release on recognisance, that he did not have any Hong Kong resident who could act as his guarantor, and he could only seek support from ISS.

29.  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, if released, may pose a threat or security risk to the community.

30.  In support of his application for a writ of habeas corpus, the Applicant says that he is suffering from hypertension, and his left ear is almost deaf and requires surgery.  He also says that he is in a state of mental, physical, emotional and psychological torture because of the present stressful situation.  The medical report of Dr Tan dated 29 April 2020 shows, however, that:

(1)  When the Applicant was discharged from Tong Fuk Correctional Institution and admitted into CIC on 29 September 2018, his blood pressure was borderline high.  His blood pressure was regularly measured, and daily anti-hypertensive medication was dispensed to him.  The medication gave good control of his blood pressure.

(2)  He was admitted to QMH ENT in October 2018 for audiometry which revealed no significant hearing loss.  He had MRI of his ears in late 2019 in QMH.  Both tests were for his hearing complaints.  No abnormality was detected in both tests, and no further ENT specialist consultation was arranged for him by QMH.

(3)  In early March 2019, he complained of a lump on his left foot.  His appointment date for Orthopaedic Tuen Mun Hospital consultation is in June 2020.  While performing his daily routine, he is able to walk in a normal manner without any help, and the lump is not affecting his quality of life.  Basic pain-killer and Panadol are prescribed to him occasionally.

31.  On the materials before the court, there is no reason to believe that the Applicant is not receiving proper medical care and attention while under detention in CIC.

32.  It is regrettable that the Applicant’s application in HCAL 3001/2018 has not yet been heard or dealt with by the High Court.  As is well known, there has been a huge increase in the number of applications for judicial review relating to non-refoulement claims in the past few years and it unavoidably takes time for them to be dealt with.  According to the records kept by the Immigration Department, as at the end of October 2019, there were about 6,400 unsuccessful non-refoulement claimants who had lodged applications for leave to apply for judicial review.  The situation is not helped by the current COVID-19 pandemic which has led to the general adjournment of court proceedings in the past 3 months or so.  Nevertheless, court proceedings have now been resumed generally.  Since the applications are generally dealt with by the Judiciary according to the dates of their lodging, it is reasonable to expect that the Applicant’s application can be heard soon.

33.  In all, I am 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

34.  The application for the issue of a writ of habeas corpus is dismissed.  There shall be no order as to costs, which is not sought by Mr Li on behalf of the Respondent.