AMIR MOLLA v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 861/2024

[2024] HKCFI 2245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 861 OF 2024

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order made on 25 February 2014. He has been held in immigration detention since 19 February 2024 pursuant to section 32(3A) of the Immigration Ordinance. As at the hearing before me, he has been detained for 192 days.

1.2  This is my decision on the Applicant’s application made on 30 May 2024 for a writ of habeas corpus. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. Ms Augusta Wong, Government Counsel, appeared for the Director of Immigration (“Director”).

2.  Background

2.1  The Applicant is a Bangladeshi national born in 1978. On 22 October 2008, he was arrested by the Police for being a suspected illegal immigrant. He claimed that he had sneaked into Hong Kong illegally in July 2007.

2.2  Whilst released on recognizance, the Applicant committed the following offences:

(1)  On 28 January 2014, the Applicant was convicted of “Theft”, and was sentenced to 2 weeks’ imprisonment;

(2)  On 3 July 2015, the Applicant was convicted of 2 counts of “Theft”, and was sentenced to a total of 5 weeks’ imprisonment;

(3)  On 5 July 2017, the Applicant was convicted of “Theft”, and was sentenced to 2 weeks' imprisonment;

(4)  On 27 December 2017, the Applicant was convicted of 3 counts of “Theft”, and was sentenced to a total of 11 weeks’ imprisonment and was ordered to pay compensation of HK$908;

(5)  On 26 September 2018, the Applicant was convicted of “Theft” and 2 counts of “Possession of a dangerous drug”. He was sentenced to a total of 9 months’ imprisonment on 11 October 2018;

(6)  On 30 December 2019, the Applicant was convicted of “Theft”, and was sentenced to 6 weeks’ imprisonment;

(7)  On 8 September 2020, the Applicant was convicted of “Theft”, and was sentenced to 8 weeks’ imprisonment;

(8)  On 6 January 2021, the Applicant was convicted of “Theft”, and was sentenced to 14 weeks’ imprisonment;

(9)  On 16 September 2022, the Applicant was convicted of 2 counts of “Theft”, and was sentenced to a total of 16 weeks’ imprisonment;

(10)  On 4 April 2023, the Applicant was convicted of “Theft”, and was sentenced to 10 weeks’ imprisonment;

(11)  On 5 January 2024, the Applicant was convicted of “Theft”, and was sentenced to 10 weeks’ imprisonment.

2.3  The present detention commenced following the Applicant’s release from his last imprisonment.

2.4  The Applicant failed to report immigration recognizance on 9 occasions between August 2015 and October 2022. The periods of abscondence ranged from 16 days to 1.5 years. Except on 2 occasions where he surrendered himself to the Immigration Department, he was arrested by the police during his abscondence either for being a wanted person or for a (then) suspected offence.

2.5  The Applicant also jumped bail during the following periods:

(1)  Court bail from 7 June 2017 to 4 July 2017;

(2)  Court bail from 11 September 2018 to 25 September 2018;

(3)  Court bail from 19 September 2018 to 25 September 2018;

(4)  Police bail from 19 May 2022 to 24 July 2022.

3.  Non-refoulement claim (“NRC”) and related proceedings

3.1  The Applicant’s NRCs were rejected by the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”). In gist, TCAB dismissed (1) his appeal against the Director’s rejection of his NRC on the grounds of torture, BOR 3 and persecution risks on 8 November 2016 (“TCAB’s 1^st Decision”) and (2) his application to appeal out of time against the Director’s rejection of his NRC on the ground of BOR 2 on 22 November 2019 (“TCAB’s 2^nd Decision”).

3.2  On 9 March 2020, the Applicant applied for leave to apply for judicial review against TCAB’s 1^st Decision (HCAL 350/2020).

3.3  On 12 October 2023, DHCJ KW Lung dismissed HCAL 350/2020 (“JR Leave Decision”).

3.4  The Applicant has appealed against the JR Leave Decision (CACV 337/2023). No hearing date has been fixed for CACV 337/2023.

3.5  The Applicant has thus far not taken further action in respect of TCAB’s 2^nd Decision, and were he to do so, such action would be severely out of time.

4.  Seeking reentry to Bangladesh

4.1  The Applicant’s passport expired on 24 September 2011.

4.2  Throughout the present detention, the Applicant expressed his unwillingness to return to his home country. In particular, in the interviews conducted on 26 April, 22 May, 6 and 12 June, 2, 17, 22, and 31 July 2024 respectively, he refused to complete the re-entry formalities or attend an interview with the local Consulate General of the People’s Republic of Bangladesh (“CG”). The Immigration Department has even prior to the commencement of the present detention been in active liaison with the CG for the issuance of a replacement travel document.

4.3  The estimated processing time for issuance of a replacement travel document to the Applicant is around 6 months upon fulfilling all requirements as set by the CG.

5.  The present detention and its reviews

5.1  During the present detention, the Immigration Department has conducted 2 reviews of the Applicant's detention under section 32(3A) of the Ordinance on 17 May 2024 and 5 August 2024 respectively. In both reviews, it was considered that releasing the Applicant on recognizance was not warranted on the following broad grounds:

(1)  The Applicant's removal is going to be possible within a reasonable time;

(2)  The Applicant poses or is likely to pose, a threat or security risk to the community;

(3)  The Applicant may abscond and/or re-offend;

(4)  The Applicant does not have close connection or fixed abode in Hong Kong;

(5)  There are no other circumstances in favour of the Applicant's release.

6.  The Applicant’s submissions

6.1  The Applicant’s written materials put forward the following matters:

(1)  Generally, and without being specific, the present application does not comply with the HS1 to HS4;

(2)  His detention is affecting his health adversely, and in particular he has had a serios operations on his right lower limb, his right foot, and spine. He suffers pain at night and struggles to go up and down staircases. He requires to be released for prompt medical attention.

6.2  At the hearing, the Applicant supplemented as follows:

(1)  He would be in danger if repatriated to his home country;

(2)  His removal cannot be effected within a reasonable time;

(3)  He had been offered compensation for his previous detention in 2023 in DCCJ 4656 of 2023;

(4)  There are still extant proceedings (CACV 337/2023);

(5)  He emphasized that he is experiencing pain during the present detention.

7.  Applicable principles

7.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

7.2  I remind myself that the burden is on the Respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

7.3  Under Section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place and (4) factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

7.4  The Court of Appeal has recently provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee’s own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention. It is stated at §29(3):

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

8.  Analysis

8.1  During the present detention, the Applicant is and has been detained pursuant to the section 32(3A) of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

8.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 192 days, against which the various other factors must be weighed and balanced.

8.3  I must point out that I am concerned with the present detention. DCCJ 4656/2023 is concerned with the Applicant’s previous detention in 2023. As pointed out by Ms Wong, the offer of compensation was in any event made on a without admission on liability basis.

8.4  I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied. I also accept that the Director has acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. The foregoing is amply demonstrated by the efforts made for the issuance of an emergency travel document.

8.5  There is no longer any legal impediment to the Applicant’s removal pursuant to the Updated Removal Policy. Under the Updated Removal Policy, CACV 337/2023 does not create a legal impediment. As pointed out above, the Applicant has not taken further any action in respect of TCAB’s 2^nd Decision. Were he to do so, I have no doubt that it will be taken into account in future reviews of his present detention, including the reasonableness of his lack of action for a substantial period of time.

8.6  The remaining impediment is a practical one, and the present detention is prolonged by the Applicant’s own refusal to cooperate in completing the re-entry formalities. I agree with Ms Wong that significant weight should be given to the delay caused by the Applicant’s own behaviour in the balancing exercise.

8.7  As to the health concerns relied on by the Applicant, the evidence relied on by the Applicant shows that the Applicant had an accident in May 2021 during which he fell from height. He was diagnosed to have suffered from acute traumatic closed fracture of right foot and acute traumatic fracture of spine. He underwent operations and thereafter received follow-up treatments for his foot, ankle and spine and received out-patient physiotherapy at the Queen Elizabeth Hospital. I note that his ailments have not prevented from committing crimes in respect of which he was convicted in September 2022, April 2023 and January 2024. Whilst I am prepared do proceed on the basis that the Applicant is still suffering from residual discomfort, I accept Ms Wong’s submissions that there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required (Mansuri, Intekhab Alam Mohamed Shakil Reza v Hong Kong SAR Government, HCAL 2428/2018, 6 November 2018).

8.8  I accept Ms Wong’s submissions that an important consideration in the present case is the risk of the Applicant absconding, which would frustrate the very purpose for which the detention power was conferred and exercised. I take stock of the Applicant’s persistent indications throughout the present detention of his unwillingness to be repatriated. It seems to me that the assessment of the existence of such risks cannot be said to have been unreasonably reached.

8.9  I am also of the view that there is an appreciable risk of the Applicant reoffending should he be released, given his previous conviction records.

8.10  As regards the Applicant’s concern on his safety if repatriated to his home country, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

8.11  Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

9.  Conclusion

9.1  For the above reasons, the detention to date has remained lawful, and will remain lawful for this foreseeable future.

9.2  As a result, I dismiss the Applicant's application for a writ of habeas corpus with no order as to costs.