T v. DIRECTOR OF IMMIGRATION

HCAL 241/2016

[2019] HKCFI 22

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 241 OF 2016

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J U D G M E N T

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Introduction

1.  The applicant has taken out two applications: (1) an application for leave to apply for judicial review, by a Form 86 dated 23 December 2016 and filed on 28 December 2016 (the “Original Form 86”); and (2) an application to amend the Original Form 86, by a summons dated 16 January 2018 (the “Amendment Application”).  By order dated 2 February 2018, this court directed that these two applications be heard together. 

2.  The putative respondent opposes both applications for the following reasons: (1) Insofar as the Original Form 86 is concerned, the applicant has already achieved the main relief he asked for, being his release from detention.  (2) The Draft Amended Form 86 raises new grounds / new requests for reliefs not pleaded in the Original Form 86, which ought to be regarded as time-barred by the time the Amendment Application was taken out. (3) Instead of pursuing these proceedings in judicial review, the legality of the applicant’s detention and/or his claim for damages arising from the alleged illegality thereof will be more appropriately and effectively dealt with by way of a private law writ action.  (4) In any event, the grounds raised by the applicant (whether in the Original Form 86 or the Draft Amended Form 86) do not meet the threshold of “reasonable arguability” for the grant of leave in judicial review (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, at paragraphs 14 to 17).  

Background

3.  The details relating to the detention of the applicant have been set out in the 1^st and 2^nd Affirmations of So Man Tin, Acting Senior Immigration Officer of the Removal Assessment Section of the Immigration Department; and the Affirmation of Kong Tang Wai, Acting Senior Immigration Officer of the Clearance Section of the Immigration Department.  

4.  In gist, the applicant, on the strength of a Togolese passport, arrived at the Hong Kong International Airport from Shekou, Mainland China by ferry as a sea-to-air passenger for connecting flight to Manila on 5 December 2015.  He was refused permission to land in Manila and was bounced back to Hong Kong on 6 December 2015.  Arrangement of re-admission to the port of embarkation, ie Shekou, was then carried out by the airline.  It came to the Immigration Department’s notice on 9 December 2015 that the applicant intended to lodge a non-refoulement claim when the Immigration Department received a letter from the United Nations High Commissioner for Refugees stating so.  The applicant was then intercepted for immigration examination.

5.  Upon immigration examination, the applicant claimed that he had previously overstayed in Mainland China with his old Ghanaian passport under the same identity in 2009, and was unable to re-enter Mainland China.  He was refused permission to land in Hong Kong on the same day, ie 9 December 2015. 

6.  Also on 9 December 2015 (and on other subsequent dates), the applicant lodged a non-refoulement claim by written submissions. 

7.  A summary of the applicant’s detention history is set out as follows: –

Period	Relevant Provision of the Immigration Ordinance (Cap 115)
9.12.2015 to 5.2.2016	s.32(1)(a)
18.12.2015 to 21.3.2017	s.37ZK
31.5.2016 to 6.6.2016	s.32(2A)(a)
7.6.2016 to 27.6.2016	s.32(2A)(b)
28.6.2016 to 8.7.2016	s.32(2A)(c)
8.7.2016 to 13.5.2017	s.32(3A)

8.  The applicant applied for bail pending his application for leave to apply for judicial review, but his application was not successful (see the Decision of this court dated 16 January 2017). 

9.  The applicant was released on recognizance on 13 May 2017. 

The Applicant’s Position

10.  The applicant submits that his detention extended far in excess of a period that was reasonable.  His detention should not have been maintained beyond the date when he made his non-refoulement protection claim.  Alternatively, his detention became unlawful from the point that the court considers that a ‘reasonable period’ of detention had expired or from the point where it became clear that removal would not be possible before the expiry of that reasonable period.  Further, his detention was ultra vires and unlawful for the entire period pursuant to which the putative respondent relied on section 37ZK of the Immigration Ordinance, Cap 115 (the “Ordinance”) whilst the applicant no longer pursued a torture claim under Part VIIC of the Ordinance.

Main Relief Sought Under Original Form 86 Already Achieved

11.  At the time when the Original Form 86 was launched, the applicant was still under detention.  The reliefs sought at that time included, inter alia, “(1) An Order of certiorari to bring up and quash the decisions of the Director of Immigration on or about 29 & 30 September 2016, 4, 9 & 23 November 2016 and 2 December 2016 continuing to detain the Applicant… and/or refusing to release the Applicant by permitting the Applicant to enter into a recognizance…; (2) An Order granting the Applicant bail pending a final determination of this judicial review application; … (5) Damages to be assessed”. (Emphasis supplied)

12.  As explained by this court in its Decision dated 16 January 2017, one of the reasons for refusing bail was because, “from the nature of the relief sought in this judicial review application, it is apparent that the granting of bail at this stage would grant the applicant substantially all or a large part of the relief sought by the applicant in the judicial review application itself” [paragraph 8], ie the applicant’s release from detention. 

13.  In the light of the fact that the applicant had already been released on recognizance on 13 May 2017, I agree he had in effect already achieved the main relief sought under the Original Form 86.  The question of whether he ought to have been released or not has become academic. It is well-established that the court would not generally entertain a judicial review where the issue is or has become academic. 

14.  Insofar as the applicant seeks to argue that the duration of his detention was without proper legal basis, or otherwise contrary to the Hardial Singh principles, and hence unlawful, I agree it is open to him to seek damages by way of a private law writ action, which would be the more effective and appropriate alternative remedy. 

Amendment Application

15.  The applicant was released on recognizance on 13 May 2017, but the Amendment Application was not taken out until some 8 months afterwards, ie on 16 January 2018.  The Draft Amended Form 86 raises wholly new grounds or requests for reliefs not previously covered by the Original Form 86 (for example, declarations to the effect that, inter alia, the entire period of detention or any part thereof was unlawful, that the applicant was arbitrarily detained contrary to Article 5 of the Hong Kong Bill of Rights and Article 28 of the Basic Law, and the request for damages was broadened to include “constitutional damages, and/or aggravated and/or exemplary damages, and/or damages pursuant to s. 6 of the Hong Kong Bill of Rights Ordinance (Cap. 383)”). 

16.  I agree with the putative respondent that the essence (and objectives) of the Draft Amended Form 86 is entirely different from that of the Original Form 86.  In the Original Form 86, the applicant asked for certain decisions of the putative respondent to be quashed so as to facilitate his release from detention.  In the Draft Amended Form 86, given that the applicant has already been released on recognizance, the applicant now asks the court to declare the unlawfulness of his detention, and to grant him damages for the alleged unlawful detention. 

17.  Quite apart from the fact that these new objectives can be similarly and more effectively achieved by way of a private law writ action (to be further discussed below), given the substantive nature of the new grounds/reliefs sought to be introduced in the Draft Amended Form 86, I agree the application for leave to amend ought to have been taken out within 3 months from the date on which the applicant was released, ie on or before 13 August 2017 (see: Order 53, rule 4(1) of the Rules of the High Court; section 21K(6) of the High Court Ordinance, Cap 4).  The applicant has not made any application for extension of time for raising such new grounds/reliefs, and has not proffered any good reasons for the delay of around 5 months. 

18.  Accordingly, the proposed amendments insofar as they pertain to new grounds of judicial review/new requests for reliefs should not be allowed. 

Alternative Remedy Available

19.  In general, judicial review should be a remedy of last resort, and remedy in judicial review would not be granted if there is an effective alternative remedy.  As stated in Practice Note 53/14/25 of the Hong Kong Civil Procedure 2019:

“A private law writ action constitutes an effective alternative remedy which may bar a judicial review. The fact that the claim for damages is based on an alleged breach of public duty by public officials does not constitute exceptional circumstances so as to justify the grant of leave …”

20.  In Tsang Kin Chiu v Commissioner of Police [2015] 4 HKLRD 71, the applicant there applied for leave for judicial review in respect of, inter alia, an alleged assault by police officers.  The court found that insofar as his 1^st and 2^nd grounds for judicial review were concerned, his primary claim thereunder was for damages.  A private law writ action could achieve the same result and was also more appropriate, since the applicant’s claim for exemplary damages was likely to involve the determination of factual disputes, for which judicial review was unsuitable.  The applicant therefore had an effective remedy which had not been exhausted, and his application for leave for judicial review based on the 1^st and 2^nd grounds was refused (paragraphs 14 to 18; 21 to 22). 

21.  See, in particular, the court’s observations at paragraph 21 of Tsang Kin Chiu, Ibid: –

“… The fact that the claim for damages is premised on an alleged breach of public duty by public officers does not provide any such exceptional circumstances. There is no doubt that a claimant can make a private law damages claim against public officials for breach of public duty. For example in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138, the claimant claimed against the Director of Immigration for damages arising from false imprisonment, and the court held that there was a breach of public duty which founded a claim for such damages.”

22.  See also Ruddy v Chief Constable, Strathclyde Police [2013] UKSC 126 at paragraphs 17 and 18 (cited in Tsang Kin Chiu, Ibid, at paragraph 17), and Saeed v Secretary for Justice [2015] 1 HKLRD 1030 as another example of how the District Court readily deals with private law claims for damages arising from unlawful detention.

23.  I agree that the present case is similar to Tsang Kin Chiu, Ibid, in that what the applicant is effectively and substantively seeking as a remedy is a claim for damages.  A private law writ action will be more appropriate to deal with the applicant’s claim for damages, especially if he needs to establish grounds to support his claim for exemplary and/or aggravated damages (see: the terms of Order 18, rule 8(3) of the Rules of the High Court).  The applicant’s claim will also involve the determination of various disputed facts, including the period of unlawful detention (if any), the nature and severity of the applicant’s mental distress and whether it was caused by the alleged unlawful detention, whether his requests for assistance were met, etc.  Cross-examination of the applicant and the putative respondent’s witnesses will also be necessary.  

24.  On the liability front, the main issue is whether upon the individual circumstances of the applicant’s case, his detention was Hardial Singh compliant, or lawful (highly fact sensitive).  There are no exceptional circumstances in the present case to justify the continuation of these proceedings in judicial review, notwithstanding the availability of alternative remedy. 

25.  Accordingly, I agree that leave to apply for judicial review should be refused. 

Merits of the Applicant’s Grounds for Judicial Review

26.  As this court is minded to refuse leave, inter alia, on the basis that there is an effective alternative remedy (see: paragraphs 19 to 25 above), it would not be necessary or appropriate for this court to make a determination on the issue of whether the grounds put forward by the applicant for leave to apply for judicial review are reasonably arguable. 

Conclusion

27.  By reason of the matters set out above, the applicant’s application for leave to apply for judicial review and the Amendment Application are both dismissed. 

28.  I see no reason why costs should not follow the event.  Accordingly, I order that the putative respondent’s costs of the leave application and the Amendment Application be paid by the applicant, to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

29.  The above order as to costs as between the applicant and the putative respondent is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

30.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.