ONKAR SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1540/2023

[2023] HKCFI 2599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1540 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is subject to a Removal Order made on 5 November 2019, under section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”) and a Deportation Order made on 27 September 2023, under section 20(1)(a) of the Ordinance.  He has been held in administrative detention since 22 July 2023, hence for a period of 80 days to date.

2.  By application dated 31 August 2023, the Applicant applies for a writ of habeas corpus, seeking his release from detention.  I directed the Director of Immigration to file an initial response to the application, and bring the matter on for hearing today.

3.  At the hearing, the Applicant has appeared in person, with the benefit of a Punjabi/English interpreter.  The Director has been represented by Ms Celina Lam, Government Counsel, who signed the initial response.

4.  This is my Decision.

B.  Background

B.1  Immigration Status

5.  The Applicant is an Indian national, born in 1984.  He entered Hong Kong illegally, and on 5 November 2009 was arrested by the Police for being a suspected illegal immigrant.  After referral to the Immigration Department (“ImmD”), the Applicant was released on immigration recognizance as from 13 November 2009.

6.  The Applicant absconded by failing to report immigration recognizance as from 16 June 2017, for a period of more than 5 years until he was arrested on 1 September 2022.  He was arrested on that occasion pursuant to a warrant of arrest as a court bail jumper, he having failed to appear in court on 20 June 2017, for an offence of taking up illegal employment.

7.  On 5 November 2019, the Removal Order was made against the Applicant.

8.  It was upon completion of a prison sentence – see below – that the Applicant was discharged and the current period of administrative detention commenced on 22 July 2023.

9.  The Applicant was originally detained under section 32(3A) of the Ordinance, then section 29(1), pending inquiry as to a deportation order.   The Deportation Order was made on 27 September 2023, and thereafter the Applicant has been detained under section 32(3) of the Ordinance.

10.  The Applicant has no family ties in Hong Kong.

B.2    Applicant’s NRC

11.  On 7 November 2009, the Applicant lodged his NRC.  On 3 June 2015, the NRC was refused by the Director on all then applicable grounds.  On 28 February 2017, the Applicant’s appeal/petition was dismissed by the Board.  On 3 April 2017, the Director invited the Applicant to submit any additional facts relevant to a BOR2 claim.  On 25 September 2019, the Director rejected the claim of BOR2 risk.

12.  On 21 July 2023 – notably only on the day before he completed his sentence and the current detention began, and more than 6 years out of time – the Applicant applied to the Court of First Instance (“CFI”) for leave to apply for judicial review, seeking to challenge the decision of the Board.  This step bears all the hallmarks of a tactical ploy to set up a barrier to removal.  Following requests made on behalf of the Director for priority to be accorded to that application, it will now be heard on 24 October 2023.

13.  It can reasonably be anticipated that a decision will follow within a few weeks.  If the application is decided against the Applicant, that will remove any legal impediment to the Applicant’s removal from Hong Kong – as a result of the updated removal policy which took effect from 7 December 2022.

B.3    Criminal Record and Absconding Record

14.  As stated above, the Applicant absconded from 16 June 2017, until arrested by the police on 1 September 2022.  That period of absconding was more than 5 years.  He had also jumped court bail on 20 June 2017.

15.  Following his arrest, he was, on 2 September 2022, convicted of offences of (1) taking employment while being a person having landed in Hong Kong unlawfully, (2) possession of an identity card relating to another person, (3) theft, and (4) using an identity card relating to another.  He was sentenced to various concurrent sentences, making a total of 16 months’ imprisonment.

16.  Upon discharge from serving that sentence, the current period of detention commenced.

B.4    Detention and Reviews

17.  As stated above, the Applicant was originally detained under section 32(3A) of the Ordinance, then section 29(1), pending inquiry as to a deportation order, then section 32(3) after the Deportation Order was made on 27 September 2023.

18.  During detention, the Applicant has consistently expressed unwillingness to return to India, and he has also stated that he would not cooperate with any immigration removal arrangement.

19.  At the last review of detention, it was decided that continued detention was warranted and that this is not a case warranting release on recognizance, on the grounds that: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) he poses, or is likely to pose, a threat or security risk to the community; (3) he may abscond and/or reoffend; (4) he has no close connection or fixed abode in Hong Kong; and (5) there are no other circumstances in favour of his release.

B.5    Efforts towards Removal

20.  The Applicant’s unwillingness to return to India has, as stated, been reflected in his refusal to cooperate with the re-entry requirements.  He has refused to cooperate, notwithstanding that he has been reminded that would simply impede his removal, and delay his release from detention.

21.  Nevertheless, the Director has been in liaison with the local Indian Consulate General to seek to obtain a travel document. On 29 June 2023, the Consulate confirmed the Applicant’s identity, and director has continued to seek from the Consulate alternative means to issue a travel document to the Applicant, notwithstanding his uncooperative attitude.

C.  Applicable Principles

22.  Those principles applicable on an application for writ of habeas corpus in cases with the present context are well-established.  They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781.  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.

23.  I bear in mind that the burden is on the respondent to an application for writ of habeas corpus to justify the continued lawfulness of the detention.

D.  Applicant’s Submissions

24.  With his application, the Applicant filed hand-written grounds, which mainly rehearse some of the applicable legal principles (clearly simply copied from various other similar applications).  The few points more directly relevant to his own situation might be summarised as follows:

(1)  He does not think that removal is going to be possible within a reasonable time, because of his judicial review application objecting to the decision of the Board.

(2)  He does not pose, or is not likely to pose, a threat or security risk to the community.  He will not commit any crime during the period of his stay in Hong Kong.

(3)  He is being held in detention for a matter which is not a crime.

(4)  He will not abscond and/or reoffend.  Nor would he miss any reporting with ImmD.  Instead, he is willing to comply with all conditions and terms of ImmD, if released.

(5)  He can provide a fixed abode in Hong Kong, and a guarantor (whose details he provided).

25.  At the hearing, the Applicant made no further submissions.

26.  I take those various matters raised by him into account, and give them the weight in the balancing exercise as seems to me to be appropriate.

E.  Whether Detention is Lawful

27.  There has been clear prima facie lawful authority for the detention of the Applicant throughout the current period of detention, under the various sections of the Ordinance previously identified above.  Therefore, the question arises as to whether the overall circumstances of detention have rendered continued detention unreasonable, and hence unlawful.  That question requires the assessment in accordance with the Hardial Singh principles, as I shall perform below.

28.  The starting point is the period of detention to date, here 80 days, against which the other factors are to be weighed and balanced.

29.  I accept that the Applicant has been detained for the purpose of his removal from Hong Kong, and that the power of detention is being used only for that purpose.  This is evident from the Director’s efforts in seeking a travel document for the Applicant, and in pressing for early resolution of the application made to the CFI.  HS1 is satisfied.

30.  Those same points also identify that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal as soon as possible, notwithstanding the Applicant’s attempts to obstruct that removal.  HS4 is satisfied.

31.  I give substantial weight to the fact that the Applicant’s refusal to cooperate might unnecessarily lengthen the period of detention.  But, that is self-inflicted, and is not a matter of which the Applicant can properly complain.  Were he to cooperate, removal (and hence release from detention) could occur within a short time after the legal impediment to removal is lifted.  Of course, I take into account the overlap in time, because the Applicant’s application for leave to apply for judicial review is yet to be heard and determined.  But, that does not seem to me significantly to lessen the weight to be given to the Applicant’s own conduct, pursuant to section 32(4A)(d) of the Ordinance.

32.  I also take into account the clear inference (which I draw) that the Applicant’s application to the CFI – made more than 6 years out of time – was simply an attempt to raise a legal impediment to removal.  I am also extremely doubtful as to any underlying merit in the application, even ignoring the delay, when instead of pursuing it in good time the Applicant absconded and took up illegal employment.

33.  Now that the application has been fixed to be heard on 24 October 2023, it remains reasonable to believe that it can be determined within a short time thereafter.  If the determination is by way of a dismissal, that removes the legal impediment to removal.  If the application is allowed, the question of continued detention will fall to be reassessed in that light.

34.  As to consideration of one of the paramount factors, relating to risk of absconding, there seems to me to be a real and very substantial risk of absconding in this case.  The Applicant entered Hong Kong illegally, and has no close connection here.  Instead, he obtained employment – illegally, leading to his conviction and imprisonment.  He was found and prosecuted for that offence, and others, at the end of a long period of many years absconding.  Attempts to find him using the details he gave to ImmD were in vain.  He has demonstrated almost no respect at all for the requirements of being released on recognizance.  He has also demonstrated strong resistance to being returned to his home country, including by refusing to cooperate in the pre-entry formalities.  I give no weight at all to the Applicant’s written suggestion that he would not abscond, but would honour the terms of his recognizance.  I consider that the risk of absconding is very high, and if absconding were to occur it would defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in this case.

35.  I also note here that the Director has contacted the proposed guarantor, who claims not to know the Applicant and who has refused to stand as guarantor.  This only further demonstrates the Applicant’s unreliability, and the risks that would be associated with his being released.

36.  I also agree with Ms Lam’s submission that there is some risk of re-offending.  The previous offence was committed whilst the Applicant was released on recognizance, and he absconded.  A further conviction leading to any term of imprisonment might further delay removal of the Applicant from Hong Kong.  The Applicant’s statement that he would not commit crime when in Hong Kong is worthless, in light of his previous crimes committed whilst in Hong Kong and whilst released on recognizance.  I take this factor into the balance.

37.  Looking at matters overall, it seems to me that both HS2 and HS3 are satisfied.  Balancing the various factors against the period of detention to date, the detention has remained reasonable in all the circumstances (and as is reasonably foreseeable will continue to do so). Hence, detention is lawful.

F.  Result

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