YOGESWARAN SHANMUGAPIRABU v. DIRECTOR OF IMMIGRATION

HCAL152/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.152 OF 2012

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BETWEEN

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REASONS FOR JUDGMENT

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Introduction

1.  This is an application for a writ of habeas corpus filed by the applicant on 21 November 2012. 

2.  The applicant is from Sri Lanka.  He was detained on 3 October 2012 under s.32(3A) of the Immigration Ordinance when his recognizance expired.  Since then, he was detained at Castle Peak Bay Immigration Centre by the Director of Immigration.

3.  This court heard the application on 23 November 2012.  The Director of Immigration was represented by Ms Parwani, Government Counsel, the putative respondent.

4.  I dismissed the application after the hearing.  The following is the reasons. 

The facts

5.  The applicant admitted that he entered Hong Kong from Mainland China by boat in June 2006.  He filed an application on 26 June 2006 for refugee status (“refugee claim”) with the United Nations High Commissioner for Refugees in Hong Kong (“UNHCR”).  The UNHCR issued an Asylum Seeker Certificate to him.

6.  The applicant failed to report to the General Investigation Section of the Immigration Department in January 2007.  He was arrested by police in Central in March 2007.  He was detained under ss.26 and 32(2A) of the Immigration Ordinance.

7.  During his detention, he filed a torture claim[1] on 7 March 2007.  He was eventually released on recognizance on 29 April 2007.

8.  On 21 July 2011, the Immigration Department issued a removal order against him under s.32(3A) of the Immigration Ordinance. A ‘summary of facts and reasons for removal’ was served and translated to him on 12 September 2011.  He was also informed of his rights of appeal.  The applicant did not appeal in time.  The Immigration Tribunal had no power to consider his appeal.

9.  On 14 June 2012, his torture claim was refused by the Director of Immigration.  His petition to the Chief Executive was rejected by the Adjudicator on 14 September 2012.

10.  The Director of Immigration decided to detain the applicant again on the ground that removal was going to be possible within a reasonable time and there was no sufficient reason to believe that the applicant’s case could not be finalised in the near future.

11.  The applicant was thus detained on 3 October 2012 when he reported to the Castle Peak Bay Immigration Centre.  He indicated to the Immigration Department that he was not willing to leave while his refugee claim was still active.  UNHCR requested the Immigration Department to withhold the removal pending their decision.

12.  The applicant filed the present application on 21 November 2012.

13.  During the interim, the Immigration Department had repeatedly urged the UNHCR to expedite the applicant’s refugee claim[2].  The result was still pending on the date of this hearing.

The application

14.  The applicant argued that his refugee claim was still pending.  He should not be removed from Hong Kong.  He was on recognizance in the last six years.

15.  The fundamental issue at this stage is whether it can be shown that the detention is unlawful.  It is not to determine the reasonableness of any decision or whether there has been some failure to observe the rules of natural justice.[3]

16.  If the detention is lawful, the next issue is whether the detention has been unreasonably long as to render it unlawful.  So long as the Director of Immigration is intent upon removing the applicant at the earliest possible moment, and it is not apparent to the Director that the removal within a reasonable time would be impossible, the power to detain pending removal is in principle still exercisable.[4]

Analysis

17.  The detention on 3 October 2012 was made under s 32(3A) of the Immigration Ordinance.  This section empowers the Director of Immigration to detain a person pending his removal from Hong Kong, when a removal order[5] is in force against that person.

18.  There is no dispute that the applicant illegally entered Hong Kong by boat in June 2006.  He admitted this under caution when arrested by the police in March 2007.  The Director of Immigration may order his removal under s.19(1)(b)(ii).  A removal order had been issued to the applicant on 12 September 2011.  It is still valid and in force.  The detention is therefore lawful.

19.  The applicant argued that his refugee claim is still pending. He should not be removed from Hong Kong.

20.  As stated in paragraph 16 above, if the Director of Immigration intend to remove the applicant at the earliest possible moment, and it is not apparent that the removal within a reasonable time would be impossible, the Director may detain the applicant.

21.  The torture claim of the applicant was rejected by the Director of Immigration in June 2012.  His petition was also rejected by the Adjudicator in September 2012.  There was no further application in relation to the torture claim.

22.  In October and November last year, the Director had repeatedly urged UNHCR to expedite the applicant’s refugee claim.  There was no indication from the UNHCR that the assessment would take a long time.  In fact, the applicant’s refugee claim was filed in 2006, it is reasonable to expect that the result would be available within reasonable time.

23.  The Director of Immigration had requested for funding to purchase an air-ticket for the applicant. The Director had clarified with the Legal Aid Department that there was no application in relation to the torture claim.  As early as June 2012, the Director had arranged the applicant to apply for a replacement passport from the Sri Lankan Consulate in Hong Kong.  The applicant however refused to fill in the form.

24.  In my judgment, the Director of Immigration had taken all reasonable steps to ensure that the removal of the applicant would be within a reasonable time.

Conclusion

25.  For the reasons above, I dismissed the application.