HOSSAIN MOHAMMAD SAJID v. DIRECTOR OF IMMIGRATION

HCAL 1470/2023

[2023] HKCFI 2385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1470 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is an Indian national who last entered Hong Kong on 17 September 2016 and was permitted to stay as a visitor until 1 October 2016.  I note that the Applicant had previously visited Hong Kong a few times, and apparently complied with the permissions to stay.  However, on the last occasion he did not depart within time as required, and has since been unlawfully staying in Hong Kong.

2.  On 14 November 2016, he was made subject to a Removal Order issued under section 19(1)(b) of the Immigration Ordinance, Cap 115 (“Ordinance”). 

3.  Since 27 March 2023, the Applicant has been detained in administrative detention by the Director under section 32(3A) of the Ordinance, which authorizes detention of a person against whom a removal order has been issued, pending his removal from Hong Kong. 

4.  To the date of hearing, the period of detention has lasted 177 days, or a little less than 6 months.  But, as will become apparent from what follows below, the period of detention could have ended in less than 3 weeks but for the Applicant’s own actions.

5.  On 21 August 2023, the Applicant applied for writ of habeas corpus seeking his immediate release from detention.  I later gave directions for parties to exchange written submissions and to bring this matter to today’s hearing.

6.  At the hearing, the respondent Director was represented by Mr Eric Ko, Senior Government Counsel from the Department of Justice (“DOJ”).  The Applicant was represented by Mr Romain Pierre Levaire of Counsel.

7.  This is my Decision.

B.  The Applicant’s Non-refoulement Claim (“NRC”).

8.  The Applicant has been unlawfully staying in Hong Kong for nearly 5 years since October 2016.

9.  This long unlawful stay is partly the result of the NRC lodged by the Applicant towards the end of 2016.  Section 37Z of the Ordinance prohibits the removal of a NRC claimant from Hong Kong to a torture risk State unless his NRC has been rejected or withdrawn. Before December 2022, the Government adopted the policy not to remove NRC claimants as long as subsequent judicial review proceedings arising from the NRC were still ongoing.  Thereafter, the Government has changed the removal policy such that a claimant’s NRC related proceedings would no longer be seen as an obstacle to removal once the claim has reached the stage of being rejected by the Court of First Instance (“CFI”), irrespective of the existence of further proceedings.

10.  The Applicant’s judicial review leave application (arising from his NRC) was rejected by the CFI on 15 February 2022.  Whilst he did institute further proceedings in the Court of Appeal (“CA”) – which were also dismissed – and then to the Court of Final Appeal (“CFA”), his NRC related proceedings have already ceased to be an impediment to his removal since December 2022 under the Government’s new removal policy.

11.  In passing, I also note that the application to the CFA was said at one point to have been withdrawn, but it may have since been pursued.  But, that does not affect the overall position as to whether there is or is not an impediment to removal.

12.  It is against this background that on 27 March 2023 the Director ceased the immigration recognizance previously granted to the Applicant and started to detain him under section 32(3A) pending his removal from Hong Kong.

C.  Failed Repatriation Operations

13.  Amongst all the immigration detainees who have come before me to seek a writ of habeas corpus, the time taken by the Director to put in place a repatriation operation in this case is probably the shortest.

14.  The Director purchased a flight ticket to send the Applicant back to India as early as on 4 April 2023.  The flight was fixed for 14 April 2023.  The repatriation operation was able to be put together in such a short period because the Applicant’s NRC was no longer an impediment and he also had a valid travel document when he was taken into custody.  Further, there are letters in which he seemed to indicate willingness to return at the beginning of the detention period, and requested to be returned to India as soon as possible.  But, I note that the Applicant gave instructions just before I started to deliver this Decision that he had not actually written those letters.

15.  In any event, the Applicant then engaged a solicitors’ firm which repeatedly sent letters to the Director to request his immediate release.

16.  When it came to the repatriation date on 14 April 2023, the Applicant became emotional and showed strong resistance to return to India after he left the detention centre.  As a result, the repatriation operation was called off.

17.  On 8 August 2023, the Director purchased another flight ticket in an attempt to deport the Applicant a second time.  The second repatriation operation was fixed for 24 August 2023. However, as the Applicant made this habeas corpus application on 21 August 2023, that operation also had to be aborted.  To put it another way, the making of this habeas corpus application – which purports to seek the Applicant’s immediate release from detention – had precisely the effect of delaying the release from detention which should have occurred within 3 days.

18.  The Director has arranged a third repatriation flight, now fixed for 25 September 2023, i.e. in 6 days’ time.

D.  Applicable Principles

19.  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 any individual case.

20.  It can be noted that the burden of demonstrating the detention, and any continuation of it, as lawful rests on the respondent to the application for habeas corpus.  Further, as Mr Levaire has emphasised, continuing detention is either reasonable and lawful, or it is not.

E.  Whether Detention has become unlawful

21.  There is no challenge to the validity of the Removal Order.  There was and remains clear prima facie lawful authority for the detention under section 32(3A).

22.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

23.  I can address the Hardial Singh principles broadly below.  But the starting point is the length of the detention – about 6 months – against which all the other factors must be weighed and balanced.

24.  Mr Levaire, for the Applicant, does not dispute that, at least at the commencement of the detention, the Director intended to remove the Applicant.  But, Mr Levaire seemed to leave hanging a suggestion that, at some point during the detention following the failed first repatriation attempt, the Director may have moved away from that intention.  If that suggestion is made, I reject it.  Indeed, from the matters identified above, the Director has plainly throughout intended to remove the Applicant and has detained him only for that purpose.  HS1 is undoubtedly satisfied. 

25.  But Mr Levaire also disputes that the other three Hardial Singh principles have been met.

26.  Central to Mr Levaire’s argument are – rather surprisingly – the Applicant’s own refusal to cooperate in the removal process and, Mr Levaire said, the Director’s unpreparedness to forcibly remove the Applicant against his own will.  Mr Levaire’s submission seems to amount to the suggestion that an illegal immigrant should be permitted to remain in Hong Kong, and be released on recognizance, as long as he refuses to leave Hong Kong despite his having no right to stay, and particularly if the Director is not prepared to use force to remove or deport that illegal immigrant.  This cannot be right.  Indeed, it is not right.

27.  It is well established – both in case law (including in judgments given by myself) and under the Ordinance – that a detainee will at least highly unlikely be able to rely on his own lack of cooperation to argue that removal is not possible within a reasonable time and thus that he should be released from detention.  Indeed, section 32(4A)(d) of the Ordinance expressly provides that when assessing the reasonableness of the period of detention, the Court can take into account that a person’s removal is directly or indirectly prevented or delayed by his own actions or lack of action.

28.  Mr Levaire argues that section 32(4A)(d) is confined to non-cooperation related to obtaining a replacement travel document.  With respect, this is plainly wrong as a matter of language.  Non-cooperation in obtaining permission to enter the country of origin is only given as an example, as clearly shown by the word ‘including’ in the provision.  Nor have I restricted the application of section 32(4A)(d) to such circumstance only, as suggested by Mr Levaire in his written submissions.  Indeed, refusal to cooperate in a repatriation operation has been frequently considered by this Court as a factor properly to be taken into account when considering whether a period of detention has been or will become unreasonably lengthy, and hence unlawful: see, for example, Hussain Adan v Director of Immigration [2023] HKCFI 1884; and Farrukh Zaib v Hong Kong SAR Government [2023] HKCFI 1915.

29.  In his oral submissions, Mr Levaire has sought to argue that the kind of action or lack of action on the part of the detainee which triggers section 32(4A)(d) is only one which creates an “impasse” – such as the situation where the inability to obtain a travel document simply frustrates removal at all.  But, Mr Levaire submits, there is no impasse created by the Applicant in this case, because it has – to use his words – only become “more burdensome” to the Director to effect removal in light of the Applicant’s non-cooperation.  I also reject that argument.

30.  Mr Levaire also sought to persuade this Court that the Applicant’s obstruction to the first repatriation operation was understandable, in view of his genuine fear to return to India.  But, as should be trite, I am not asked in this habeas corpus application to adjudicate on the merits of the Applicant’s NRC or the subsequent legal proceedings.  As it now stands, his NRC has already been rejected by the Director, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office, the CFI (in effect, twice) and the CA (in effect, twice). 

31.  In passing, I would point out that no material has been produced by or on behalf of the Applicant to identify any real merit in the renewed application to the CFA, capable of suggesting any realistically likely different result than has so far been obtained.  But, in any event, the question which arises on this application is whether the Applicant has been lawfully detained, and can continue to be lawfully detained, pending his removal.

32.  Mr Levaire acknowledges that the new Government policy relating to impediment to removal has changed the stage at which the Director can effect removal, which is not a matter of dispute.  But Mr Levaire raises the suggestion that, in light of the new policy, it should be “expected” that persons such as the Applicant would put up active resistance to removal.   As Mr Levaire put it, where an applicant has not fully exhausted his potential NRC proceedings, that may give rise to more resistance by that applicant to being removed.

33.  If that argument is intended to support a suggestion that detention pending removal will be unreasonable if it can be “expected” that the detainee will resist removal because of outstanding NRC proceedings notwithstanding and following the CFI’s rejection of that claim, that should be scotched at once.  First, it is inconsistent to suggest that there is no dispute as to the new policy whilst at the same time suggesting that a reaction to it which has the effect of intending to defeat that new policy is somehow permissible.  Secondly, the new policy was partly the result of significant abuse of the previous system, and it was put in place only after careful consideration. 

34.  Indeed, Mr Levaire’s further submission that the Applicant might have had some legitimate expectation that his application to the CFA (made before the change of policy) would act as a continued impediment to removal notwithstanding the change of policy cannot get off the ground. First, unsurprisingly in circumstances where this is not an attempt to judicial review that new policy, this argument was not trailed by Mr Levaire in his written submissions and has not really been developed orally.  Secondly, and more importantly, where there is no challenge to the reasonableness or rationality of the new policy, it is difficult to see how the change of policy could nevertheless give rise to some continued legitimate expectation that the old policy would continue to apply.

35.  Further still, on the materials available, there is no real likelihood of any actual unfairness to the Applicant in this case.

36.  It may be said that it is up to the Applicant to decide whether he would cooperate in a repatriation operation, but the result of refusal to cooperate has been – and will be – to delay his removal, and thus lengthen the period of administrative detention pending such removal.

37.  In this particular case, the Applicant could have been released on 14 April 2023, had he chosen to cooperate in the first repatriation operation.  By then, he had been detained for less than 3 weeks.  The Applicant could also have been released on 24 August 2023, had he not issued this habeas corpus application, of which the only effect is to have delayed release from detention.  By his own choice, he has unnecessarily lengthened the detention from less than 3 weeks to nearly 6 months.

38.  In passing, I would also mention that there is no basis for Mr Levaire to assume that the Director would not escalate the force deployed to remove the Applicant in future.  This ground has simply not been covered in documents, nor in Mr Ko’s submissions.

39.  Whilst the Applicant has no past criminal record or absconding record, that is no good reason for the Director to allow him to continue to remain in Hong Kong and be released on recognizance.  The Applicant is subject to a valid Removal Order, and he shall be removed in due course. The fact that he has obstructed the first repatriation operation, and in effect has frustrated the second one by instituting this habeas corpus application, demonstrates a clear risk that he may not show up in the airport 6 days from now, if he is to be released on recognizance now.  It is no answer to say that, even if the Applicant does not go to the airport, he might be found at his intended residential address.

40.  If the Applicant were to fail to attend the airport to board his repatriation flight, it would defeat the very purpose of the Removal Order, and the purpose of detention pending removal.

41.  I expressly reject Mr Levaire’s submissions that the repatriation operations organized by the Director were insufficient to show that the Director has acted with reasonable diligence and expedition to effect removal.  Apparently, Mr Levaire’s rationale is that those plans were insufficient because the Director was already aware that the Applicant would not cooperate.  The submission continues that the Director has recognised that there is an impediment to removal arising from the Applicant’s non-cooperation, and that the Director having accepted that there is a block to removal is either unable or unwilling to take the necessary measures to overcome that impediment. 

42.  Mr Levaire goes so far as to suggest that there is no end to this situation – being the situation of a non-cooperating Applicant, and a Director unable or unwilling to use increased force – so that the only reasonable outcome would be for the Applicant to be released on recognizance, at least until a change in those impediments has occurred.

43.  With respect, this turns the applicable principles on their head.  On the materials, the Director has plainly taken all reasonable steps within his power to ensure that removal is effected within a reasonable time.  There is no legal impediment to removal.  The Applicant has a travel document, and there is no practical impediment to removal.  As stated, removal could have taken place within three weeks after the commencement of the period of detention.  It is the Applicant who has frustrated his removal, and hence has frustrated his own release from detention.

44.  I also reject Mr Levaire’s submission that there is no real sense of likely timescale to the Applicant’s removal.  Instead, there is a clear timescale of just 6 days.

45.  I note that the Applicant has now identified a Hong Kong permanent resident, who is prepared to act as guarantor, and at whose address the Applicant says he would reside if released on recognizance.  But, against the other matters already canvassed, that fact seems to me to have little weight in the balance.

46.  Overall, weighing the period of detention – around 6 months – against all the other factors including that repatriation is imminent, I am satisfied that HS2 and HS3 are met.

47.  On the materials, HS4 is also satisfied.

F.  Result

48.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus, albeit with no order as to costs.