BALBIR SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1259/2022

[2022] HKCFI 3775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1259 OF 2022

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JUDGMENT

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A.  Introduction

1.  The Applicant is the subject of a Deportation Order made on 21 July 2021, and had also been the subject of a Removal Order made on 24 May 2011. He is currently held in immigration detention pending removal from Hong Kong. The period of detention commenced on 21 October 2022, and has to date lasted 62 days.

2.  On 15 November 2022, the Applicant applied for writ of habeas corpus on grounds identified in his supporting affirmation. He named only the Director of Immigration (“Director”) as the Respondent to the application. However, the power to authorise detention under section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”) rests with the Secretary for Security (“Secretary”), and I have treated both the Director and Secretary as the Respondents to this application.

3.  I gave directions to bring this matter to a hearing on 21 December 2022, with the benefit of the provision of the Respondents’ Initial Response.

4.  The Applicant has appeared in person, with the benefit of a Punjabi/English interpreter. The Secretary and Director have been represented by Mr Alvin Hor, Government Counsel.

5.  Having considered the materials and submissions this morning, this is my Judgment.

B.  Background Matters

B.1  Immigration Status

6.  The Applicant is an Indian national, born on xxx.

7.  The Applicant came to Hong Kong on the strength of his Indian passport as a visitor on 17 December 2008 and was permitted to stay until 31 December 2008. However, he overstayed from 1 January 2009. The Applicant was intercepted by the Police on 7 March 2009 for overstaying and was referred to the Immigration Department (“ImmD”) on 8 March 2009.

8.  On 8 January 2010, the Applicant was removed from Hong Kong by voluntary repatriation.

9.  On 7 March 2011, the Applicant arrived in Hong Kong again on the strength of his Indian passport, but he was refused permission to land. On the same day, he lodged a torture claim.

10.  As stated above, on 24 May 2011, a Removal Order was issued against the Applicant. It was issued under section 19(1)(b) of the Ordinance.

11.  The Applicant was released on recognizance on 31 May 2011. But he failed to report recognizance from 29 December 2011, and absconded for a period of nearly 2 years until he was arrested by the Police on 12 October 2013 for possession of a forged document of identity. No charge was laid against the Applicant, and he was subsequently referred to ImmD for follow-up action.

12.  The Applicant lodged a non-refoulement claim on 21 October 2013, and was again released on recognizance on 16 November 2013.

13.  On 14 February 2014, the Applicant was arrested by the Police. On 17 March 2014, the Applicant was convicted of two counts of using a forged identity card and one count of taking employment while being a person in respect of whom a removal order is in force. He was sentenced to a total of 15 months’ imprisonment.

14.  On 15 December 2014, the Applicant was discharged from prison and referred to ImmD. He was released on recognizance on 28 December 2014, whilst his NRC was under processing.

15.  On 21 July 2021, a Deportation Order was made against the Applicant under section 20(1)(a) of the Ordinance.

B.2  Criminal Record

16.  As stated above, the Applicant’s criminal record relates to the offences of using a forged identity card and taking employment while being a person in respect of whom a removal order is in force.

B.3  Non-refoulement Claim

17.  On 26 January 2012, the Director rejected the Applicant’s torture claim. On 8 January 2016, the Director issued a notice of decision rejecting the Applicant’s NRC on all applicable grounds other than torture risk. On 22 May 2017, the Director issued a notice of further decision rejecting the Applicant’s NRC on all applicable grounds including right to life under Article 2 of the Hong Kong Bill of Rights.

18.  On 28 February 2018, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) dismissed the Applicant’s appeal/petition against the refusal of his NRC.

19.  On 8 March 2019, in HCAL 416/2018, the Court of First Instance (“CFI”) refused the Applicant’s application for leave to apply for judicial review (“JR”) against the decisions of the Board and the Director.

20.  On 10 September 2019, in CACV 129/2019, the Court of Appeal (“CA”) dismissed the Applicant’s appeal against the CFI’s decision. On 7 January 2022, the CA dismissed the Applicant’s application for leave to appeal to the Court of Final Appeal (“CFA”).

21.  On 6 September 2022, in FAMV 53/2022, the Appeal Committee of the CFA dismissed the Applicant’s application for leave to appeal to the CFA.

22.  On 16 September 2022, the Applicant submitted a request to make a subsequent claim. That request was refused by the Director on 18 November 2022.

B.4  Detention and Reviews of Detention

23.  Prior to the present period of detention, the Applicant had been detained on three occasions under the Ordinance, as already alluded to above.

24.  The Applicant’s present detention commenced on 21 October 2022, when his recognizance was ended, and he has since been detained under section 32(3) of the Ordinance pending his removal from Hong Kong in accordance with the Deportation Order.

25.  During his detention, the Applicant sought and obtained the assistance of the Duty Lawyer Service in obtaining an extension of time and then in providing further evidence and submissions in support of his subsequent claim request. As already stated, that request was refused by the Director on 18 November 2022.

26.  On 8 December 2022, the Director sought a review of detention authority from the Secretary.

27.  On 13 December 2022, a review of detention was conducted by the PAS for S, and it was considered that there were grounds for continued detention, on the basis of the following factors: (i) the Applicant’s removal is going to be possible within a reasonable time as there is no other impediment hindering his removal; (ii) the Applicant poses, or is likely to pose, a threat or security risk to the community as he has committed three deportable offences; (iii) the Applicant may abscond and/or reoffend in view of his previous adverse records; (iv) the applicant does not have close connection or fixed abode in Hong Kong; and (v) there are no other circumstances in favour of the Applicant’s release.

28.  On 14 December 2022, during a telephone interview, the Applicant requested to be released on recognizance on the basis that he wants to marry his girlfriend in Hong Kong, though he failed to provide her further information except her name.

29.  On 15 December 2022, the Director considered that releasing the Applicant on recognizance was not warranted. The Applicant was served with a Notice of Review of Detention. That Notice points out, amongst other things, that: (1) the Applicant’s removal is imminent because the JR proceedings were dismissed by the CFA on 6 September 2022, and the request from making a subsequent claim was refused on 18 November 2022; (2) the Applicant poses or is likely to pose a threat or security risk to the community because of his prior conviction on counts of deportable offences; (3) the Applicant had previously absconded, and failed to comply with the terms/conditions of recognizance, and was rearrested during recognizance; (4) the Applicant has directly or indirectly prevented or delayed his removal by action or lack of action, in that he once expressed willingness to return to India in March 2021, but later changed his mind, and after his JR proceedings were dismissed by the CFA he made an unmeritorious request for subsequent claim so as to try to create impediment to deportation, and had further refused to attend interview with the Indian Consulate on 25 November 2022 for re-entry formalities, and had only been escorted to the Consulate on 2 December 2022; and (5) the Applicant had submitted a written representation to request for release on recognizance without any stated ground, and the submission did not outweigh the other grounds in support of continued detention.

B.5  Other Steps to Removal

30.  During the present period of detention, ImmD has sought assistance from the Indian Consulate, requesting issuance of a replacement travel document for the Applicant’s intended repatriation.

31.  The Applicant, in an interview on 25 November 2022, indicated that he refused to attend any interview with the Indian Consulate for his travel document application. However, on 2 December 2022, the Applicant was escorted to the Consulate for interview for his travel document application.

32.  On the same day, ImmD made an email request to the Indian Consulate for issuance of a travel document to the Applicant. It seems that the Indian Consulate has agreed to issue a travel document.

C.  Applicable Principles

33.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present. The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of this case.

34.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court. But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not. Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  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.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period. This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful. Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it. Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts. The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

35.  I have applied those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

36.  In his affirmation/written submissions filed in support of his application, the Applicant stated the grounds of his application as being that:

(1)  the present detention is unlawful because he had been detained for around one month under section 32 pending his removal;

(2)  his USM claim is at the subsequent claim stage, and he wishes to stay in Hong Kong until all the claims are completed;

(3)  he should not leave Hong Kong until the claims are completed;

(4)  he is being detained pending his NRC and not pending removal, and it is not possible to remove him within a short reasonable period;

(5)  he will not run away;

(6)  he cannot go back to his own country because he is in real risk of safety there.

37.  The last point is obviously relevant to his NRC, and is not relevant to whether his continued detention pending removal is or is not lawful. The documents relevant to that matter, which are also exhibited the affirmation, do not change that position. The further similar points touched on by him orally (see below) are also not relevant to the current application. An application for writ of habeas corpus is not an avenue for the Applicant to seek to reargue his NRC or subsequent claim request, let alone to seek any general indulgence to stay in Hong Kong or be granted further time to arrange his affairs before he is removed.

38.  I will deal with the other matters in my analysis below.

39.  At the hearing, the Applicant made the following broad points:

(1)  Previously, when he had no fixed home, and even when he had been convicted and served his sentence, ImmD permitted him to be released on recognizance.

(2)  However, ImmD now says that he has no home, whereas he has been staying at the same address for over five years, and still has one and half years of his rental contract remaining.

(3)  The situation in his home country is extremely sensitive.

(4)  He has no property or bank balance in India.

(5)  He has no family members there, and he is alone.

(6)  His passport has expired, and he will not be able to stay in India for a long time

(7)  Though he accepts that he was convicted of the offences, they occurred at a time when he was not receiving any ISS assistance, and he had no home and no money to pay for medicines even when sick, which is why he had to work.

(8)  He regrets that mistake and will not commit any mistake again.

(9)  The convictions did not relate to any damage to any public property, nor has he caused damage or trouble to the public in Hong Kong.

(10)  He previously absconded because he was sick at the time when he was supposed to report. That was a mistake, and then he was afraid that if he went he would be sent back to India, which is why he did not report.

(11)  If released, he will comply with any reporting requirements imposed, whether the reporting is at a Police Station or at ImmD.

(12)  He is seeking release so that he can make arrangements if possible to go to another country as soon as he goes back, and so that he can be released until his return ticket is issued and can make the relevant arrangements for his return ticket.

40.  I have taken, in so far as they are relevant, all of those matters into my consideration, as can be seen below.

D.  Whether Detention is Lawful

41.  There can be no dispute that the Deportation Order made against the Applicant is valid and subsisting. There can also be no dispute that the authority to detain the Applicant exists under section 32(3) of the Ordinance. On that basis the detention is prima facie lawful, and the question on this application is whether the overall circumstances of the detention have rendered it unreasonable, and hence unlawful.

42.  The starting point is, as always, the period of detention. In this case, and at least by comparison to many other cases, that period is relatively short, being a period of 62 days. It is against that period that the other factors are to be weighed and balanced.

43.  It is clear that the Secretary/Director intend to remove the Applicant at the earliest possible opportunity, and the power of detention is being used only for that purpose. The Applicant will, of course, be released from detention when he is removed from Hong Kong.

44.  There are no outstanding legal proceedings as provide any legal impediment to his removal.

45.  The only obstacle in the way of immediate removal is the need for a replacement travel document for the Applicant. During the relatively short period of detention, the Director has been in active liaison with the Indian Consulate in respect of the issuance of a travel document for the Applicant (which process was in fact first initiated in 2019, long before the present period of detention). Although the Applicant originally indicated refusal to attend interview, he was escorted to an interview at the Indian Consulate on 2 December 2022. Mr Hor informed me this morning that the Indian Consulate has confirmed that it will issue a travel document for the Applicant. In those circumstances, I agree that it is reasonable to expect that the replacement travel document can be issued in the foreseeable future.

46.  I also accept that there is a reasonably substantial risk of absconding, given the Applicant’s previous record of failing to comply with the terms and/or conditions of recognizance. I also take into account that the Applicant is clearly unwilling to return to India, and his own explanation for previously absconding was because he was afraid that he would be sent back to India. If the Applicant were to be released on recognizance but then abscond, that would defeat the very intended purpose of removal, which is otherwise relatively imminent.

47.  There is also some risk of reoffending, in light of the prior convictions on three deportable offences. I accept that the Applicant’s personal circumstances might have changed so as to lessen that risk, and that he now regrets the offences, but some element of risk of reoffending clearly remains.

48.  In the overall circumstances, I have no difficulty in reaching the conclusion that the Applicant has been detained, and will likely be detained, only for a period that is reasonable in all the circumstances. Therefore, his detention has been and continues to be Hardial Singh compliant, and lawful.

E.  Result

49.  The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.