MUNIYAPPAN THANGAM v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1292/2023

[2023] HKCFI 2090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1292 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is the subject of a Removal Order dated 16 December 2010 and a Deportation Order dated 13 April 2023. He has been held in immigration detention since 27 December 2022 pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 228 days, or around 7½ months.

2.  On 27 July 2023, the Applicant applied for writ of habeas corpus seeking his immediate release from detention. On 28 July 2023, I gave leave for the Respondents to file and serve a written response and the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, the Respondents were represented by Ms Vivian Kao, Senior Government Counsel of the Department of Justice (“DOJ”). The Applicant appeared in person with the benefit of a Tamil/English interpreter.

4.  This is my Decision.

B.  Immigration Status

5.  The Applicant is an Indian national born in 1985.

6.  The Applicant last entered Hong Kong as a visitor on 12 February 2009 and was allowed to stay until 26 February 2009. He did not depart as required and was arrested by the police the next day, ie. on 27 February 2009.

7.  In March 2009, he lodged a torture claim, which would prohibit the Government from removing him as long as the torture claim has not yet been “finally determined”: see section 37Z of the Immigration Ordinance, Cap 115 (“Ordinance”). His claim was rejected by the Director in January 2013 and later became “finally determined” when he failed to appeal to the Torture Claim Appeal Board within time.

8.  Later when torture claims gradually evolved to become “non-refoulement claims” (“NRC”) – encompassing broader grounds for an immigrant to resist removal, besides torture risk – and the Unified Screening Mechanism was introduced, the Applicant raised an NRC in April 2013.

9.  It is not necessary to go into the details of the legislative regime or the Government’s removal policy concerning when a NRC claimant could be removed. Suffice to say that, with effect from 7 December 2022, the Government has changed its removal policy such that once a claimant’s NRC has reached the stage of its subsequent judicial review application has been rejected by the Court of First Instance (“CFI”), the existence of further appeals would no longer been seen by the Government as obstacle preventing removal. An NRC reaching this stage would necessarily have been “finally determined” under section 37Z of the Ordinance.

10.  It has taken a decade for the Applicant’s NRC to reach the necessary stage permitting his removal. By a decision dated 5 May 2023, the application for leave to apply for judicial review, made in HCAL 368/2020 and arising from the Applicant’s NRC, was dismissed by the CFI. Since then, the Applicant has become “removable” under the applicable legislative and policy regime.

C.  Criminal Record, Previous Detention, & Absconding Record

11.  Prior to the commencement of the present detention, the Applicant was granted immigration recognizance by the Director most of the time. Such recognizance would allow him to live in the community freely subject to the requirement to report and extend recognizance regularly.

12.  The Applicant’s otherwise free life was intermittently interrupted by 3 periods of imprisonment, arising from his criminal convictions. On every occasion upon discharge from prison, the Applicant would then be handed over to the Director, who would then briefly detain him while he considered if immigration recognizance ought to be resumed. Immigration recognizance was resumed on all 3 occasions.

13.  His criminal conviction and sentencing record is summarized below, together with the periods of immigration detention following such terms of imprisonment:

(1)  On 22 October 2010, he was sentenced to 2 months’ imprisonment for breach of conditions of stay. Upon discharge from prison on the 27 November 2010, he was detained by the Director for about 1 month until recognizance was resumed on 29 December 2010.

(2)  On 28 September 2011, he was sentenced to 20 months and 3 weeks’ imprisonment for taking employment while being a person in respect of whom are removal order is in force. Upon discharge from prison on 22 September 2012, he was detained by the Director for 1 month until recognizance was resumed on 23 October 2012.

(3)  On 8 May 2014, he was fined $1,000 for fighting in a public place.

(4)  On 29 September 2020, he was sentenced to 4 weeks’ imprisonment for criminal damage. Upon discharge from prison on 13 November 2020, recognizance was resumed by the Director on the same day.

14.  The Applicant also failed to report recognizance on 4 occasions.

(1)  On 28 February 2013, the Applicant failed to report recognizance. He only resurfaced about 9½ months later, on 18 December 2013. The explanation provided for the absconding was that he was sick. Following his reappearance, he was detained by the Director for about 2 months until recognizance was resumed.

(2)  The second failure occurred on 13 April 2017. He resurfaced more than a month later, on 18 May 2017. He again put forward sickness as the explanation for the absconding. He was detained by the Director for about 4 weeks before recognizance was resumed.

(3)  The third occasion occurred on 6 September 2019. He went underground for more than 4 months until he was arrested by the police as a wanted person on 17 January 2020. He was then detained by the Director for a little over 2 months before recognizance was resumed on 27 March 2020.

(4)  The last failure to report to reconnaissance occurred on 27 May 2022. He went underground for 7 months until he was arrested by the police on 26 December 2022. On the next day, he was transferred to the Director, marking the beginning of the present immigration detention.

15.  During the period of the present detention, the Deportation Order was made against him on 13 April 2023.

D.  Steps towards Removal

16.  As is common in a habeas corpus application of this sort, the removal obstacles impeding the Applicant’s removal when he was taken into custody were (1) his NRC which was the stage of its subsequent judicial review leave application in HCAL 368/2020 awaiting the CFI’s resolution, and (2) the need to replace his passport which had expired on 18 March 2018.

D1.  NRC

17.  Soon after the Applicant was taken into custody, the DOJ, on behalf of the Director, informed the CFI that the Applicant was under detention and requested priority for his case by letter dated 31 January 2023. The CFI requested the DOJ’s assistance in disposing of the leave application by providing certain documents on 15 February 2023, which request was promptly satisfied on 22 February 2023.

18.  The leave application was eventually disposed of, by a dismissal, on 5 May 2023. While the Applicant did attempt to initiate further proceedings, the CFI’s refusal has put to an end any impediment arising from the Applicant’s NRC under the new removal policy.

D2.  Passport

19.  Prior to the commencement of the present detention, the Director had already issued a letter to the Indian Consulate for the purpose of replacing the Applicant’s expired passport on 4 December 2019. A chaser was issued, on 6 January 2023, after the Applicant was taken into custody.

20.  The Consulate confirmed the Applicant’s identity by email dated 2 February 2023. I am informed by Ms Kao the once the Applicant’s identity has been confirmed, what remains to be completed before a replacement passport could be issued are mere formalities, including the completion of a re-entry application form, the taking of photographs, and the attendance of an interview with the Consulate. The Consulate confirmed with the Director that, generally speaking, they would be able to issue a replacement travel document within 3 to 4 weeks upon the completion of these formalities.

21.  But the Applicant has consistently refused to cooperate in completing these procedural steps. As a result, no replacement passport has been issued as of today, that is more than 6 months after the Applicant’s identity had been confirmed.

22.  The Applicant repeatedly expressed unwillingness to return to India and/or refused to cooperate in the application process. Such resistance and refusal were recorded to have occurred on 3 February 2023 and 21 April 2023.

23.  Meanwhile, the Director continued to chase after the Consulate for the issuance of a replacement travel document and to accord priority to the Applicant’s case.

24.  On 21 July 2023, the Director raised the Applicant’s case with the Consulate for consideration during a meeting.

25.  On 2 August 2023, the Director explored with the Consulate on the possible alternative means to issue a replace travel document despite the Applicant’s refusal to cooperate.

E.  Applicable Principles

26.  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.

F.  The Applicant’s Submissions

27.  The Applicant exhibited 27 pages of handwritten notes to his supporting affirmation. The notes are in different handwriting and the content is, with due respect, rather incoherent and scattered. Most of it is regurgitation of legal principles which are put forward as applicable in habeas corpus applications of this sort. Part of it seems to be addressing other detainees’ cases – for example arguments were made with regards to a review of detention conducted on 30 September 2021 when the Applicant’s detention only commenced in December 2022.

28.  It appears to me that only the last 2 pages were directly addressing the Applicant’s own case. These 2 pages appear to be an attempt to make a point-by-point rebuttal to the grounds which were relied upon by the Director to continue to detain him. The Applicant’s detention has been reviewed twice, and the Director recommended that continued detention on both occasions on the same set of broad grounds: (a) the Applicant’s removal is going to be possible within a reasonable time, (b) he poses or is likely to pose a threat to a security risk to the community, (c) he may abscond/or reoffend, (d) he does not have close connection of fixed abode in Hong Kong, and (e) there are no other circumstances in favour of his release.

29.  The Applicant’s reply in those 2 pages is essentially that:

(1)  He has been detained for over 7 months. He would like to know what is a reasonable time.

(2)  He would like to know how he has become a threat or security risk to the community. During his detention period from 27 December 2022 to 18 July 2023, he did not pose a security risk or threat.

(3)  As to absconding or re-offending risk, he said he promises he would not commit any crime or abscond. The Director should not make an assessment based on “may” or “maybe”.

(4)  As to the lack of close connection or fixed abode, he said he could provide fixed abode to enable the Director to locate him easily. He has friends in Hong Kong who are permanent residents.

(5)  He would like to know what kind of circumstances would be considered as circumstances in favour of his release.

30.  At the oral hearing, the Applicant began essentially by requesting the court to give him a final chance, and to release him “on bail”. I asked Ms Kao to highlight the key points relied upon by the Director/Secretary in opposing the application, so that the Applicant could hear those points (interpreted to him), and be given the opportunity to reply.

31.  Between his first and reply submissions, the Applicant stated that:

(1)  He is requesting for bail.

(2)  He admits that he was guilty of failing to report recognizance before, but he assures the Court that if granted bail he would not failed to report to immigration whenever they want.

(3)  The reason why he failed to report recognizance was because he had covert and was told not to come.

(4)  He has been in detention for seven months.

(5)  He just wants to be given a chance, and asks for the Court to “bail him out”.

32.  As the Applicant had chosen not to address the point about completing the necessary re-entry formalities to permit his repatriation to India, I specifically asked him about that. However, the Applicant did not actually address the question, preferring merely to request a last chance and to be released.

33.  Perhaps that is because the Applicant has misunderstood the question arising on his application. The Court is not deciding whether or not he should be removed or deported from Hong Kong, because the Applicant is subject to valid Removal and Deportation Orders. He will be removed, as soon as he obtains a travel document. The question to be addressed on this application is whether he can continue to be lawfully detained until he is deported.

G.  Whether Detention has become unlawful

34.  There was and remains clear prima facie lawful authority for the detention.

(1)  From 27 December 2022 to 27 March 2023, he was detained under Section 32(3A) which authorises the detention of a person against whom a removal order is in force. The Removal Order remains extant.

(2)  From 28 March 2023 to 13 April 2023, he was detained under section 29 for the purpose of making deportation enquiry. The Deportation Order was issued at the end of that period.

(3)  From 13 April 2023 up to now, he has been detained under section 32(3) which authorises the detention of a person against whom a deportation order is in force. The Deportation Order remains extant.

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

36.  I have no doubt that HS1 and HS4 are satisfied. The chronology set out above has clearly indicated that the Director has always been detaining the Applicant for the purpose of removal or deportation, and has been working diligently and expeditiously towards that end.

37.  One of the two removal obstacles, i.e. the judicial review leave application, was disposed of in a little over 4 months’ time, partly thanks to the initiative taken by the Director in urging the Court to accord priority and in assisting the Court by providing documents.

38.  As for the passport issue, I agree with Ms Kao the in light of the timeframe confirmed by the Consulate, the Applicant could have obtained a replacement travel document as early as by the end of February 2023, had he chosen to cooperate in completing the application formalities. That is to say, the Applicant could have been released from detention within March 2023, albeit in India upon repatriation. I agree with Ms Kao that the Applicant should not be allowed to rely on self-imposed obstacles to argue that continued detention has lasted for too long, when the Applicant is the very person who has, by his conscious choice, unnecessarily lengthened the period of detention.

39.  Even as of the today, there is a clear time frame, measured in the order of weeks, by the end of which the Applicant would be able to obtain a replacement passport and thus become ready to be removed, if he is willing. The Applicant needs to understand that he should cooperate and comply with the procedural formalities necessary to obtain a travel document. But the Applicant’s failing to address that point, even when specifically invited to do so, strongly indicates that he would continue to be non-cooperative even if released on recognizance, presumably in the hope of delaying his deportation. As I say, the Applicant needs to understand that that is not how it works.

40.  I also agree with the Director that there are substantial risks of absconding and re-offending, which are of paramount and critical importance in the assessment of the lawfulness of detention. As already said above, he absconded 4 times in the past, and went underground for up to 9½ months. Even if sicknesses an explanation for one or two of the occasions, that would not explain the lengthy period of absconding. The Applicant was also convicted of 4 offences. Although I agree that his criminal record is not amongst the worst this Court has seen in habeas corpus applications of this sort, all offences were committed whilst the Applicant was on recognizance. There is plainly a risk of re-offending which is not low, and which would have some consequences, perhaps including a period of imprisonment which would delay removal/deportation.

41.  Overall, weighing the period of detention – around 7½ months – against all the other factors, I am satisfied that HS2 and HS3 are met.

42.  In consequence, the period of detention to date has remained lawful at all times, and will remain lawful for the foreseeable future.

H.  Result

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